While in transit, the relator was handcuffed.
Upon arrival at Homicide Headquarters at 3:00 p.m., relator was questioned by Detective Goldschmidt, accompanied by two or three other detectives. After about 10 minutes, relator made his first inculpatory statement. He was then left alone for a while, and was fed a doughnut and soft drink, while the police conferred among themselves. He was questioned further from 4:45 p.m. to 5:20 p.m., when the process of taking a written statement was commenced. The written statement was completed and signed at about 7:30 p.m. Then, after refusing to eat, the relator was taken to his aunt's house and obtained certain articles of clothing which were later admitted in evidence against him; during this visit relator's relatives first learned of the nature of the charges.
The test to be applied is whether upon examination of the totality of the circumstances the "behavior of the State's law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760 (1961). In pre- Escobedo-Miranda cases, such as this, it is also appropriate to consider the absence of any warnings relating to the right of counsel and the right to remain silent. Darwin v. Connecticut, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968); Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966). However, the Supreme Court has made it clear that a confession is not necessarily involuntary merely because a confession results from police interrogation, and the pressures inherent in this process. Culombe v. Connecticut, supra; see also, Developments-Confessions, 79 Harv. L. Rev. 935, 974 (1966).
This case does not present an instance of the abhorrent police practices which have been found in frequently-cited cases reaching the Supreme Court. See e.q., Davis v. North Carolina, supra ; Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936). Moreover, we are not dealing with a case in which the accused was subjected to an extended period of incommunicado detention and relentless interrogation as was found in Clewis v. Texas, 386 U.S. 707, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967); Davis v. North Carolina, supra, or Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192 (1944). On the other hand, however, Mr. Bishop's sub-par intelligence, youth and lack of experience are important factors. Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325, 87 A.L.R. 2d 614 (1962); Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961); Fikes v. Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957).
Petitioner contends that his confession was motivated in part by his hunger and fatigue at the time his written confession was signed. Although the record reveals that relator had not had a full meal since the evening before, I am not persuaded that hunger was a substantial factor in his actions. Nor was fatigue: he had arisen at 10:30 a.m. and completed his confession by 7:30 p.m.
As is typical in cases involving police interrogations, there was conflict in the testimony at trial and in this Court concerning the actions of the police. Suffice to say, I find that at some point during his detention at the Homicide Division the relator's hat was snatched from his head by a police officer, and that he was told that the likelihood of receiving the death penalty was reduced when suspects cooperated with the police.
Against this background, another salient fact must be considered. Within 10 to 15 minutes of his arrival at the Homicide Division the relator made his first admission of complicity in the crime. I am satisfied that as soon as the police disclosed the fact that a witness had seen a young male fitting his description with the decedent just before her death, the petitioner decided that it was in his best interest to reveal the facts from his own viewpoint.
More importantly, the factor which most strongly militates in favor of a finding of voluntariness in this case is the generally exculpatory nature of the confession, considered in light of the petitioner's knowledge of the strength of the independent evidence against him. In his confession, Bishop related that both he and the decedent had been drinking; she had willingly engaged in sexual relations with him; an altercation arose which resulted in each person striking the other; and the strangulation was accidental.
Viewing the totality of the circumstances, I am convinced that, more probably than not, the relator's confession was "voluntary." Cf. Boulden v. Holman, 385 F.2d 102 (5th Cir. 1967), aff'd in part, vacated and remanded, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969). It must be remembered that the Commonwealth is not required to prove that the petitioner was delighted to confess: it is enough to show that the decision to do so was his own voluntary act, and not the product of improper police conduct.
Of the remaining two grounds for relief, the perjury of a witness for the Commonwealth and the introduction of allegedly illegally seized physical evidence, the record is clear that the former has never been raised in the state courts and, therefore, cannot be considered by this Court at the present time. 28 U.S.C. § 2254.
The seizure issue was not raised in the post-trial motions, and was not mentioned by the state appellate court. The district attorney represents that it was not raised. The only reference to it in the post-trial record is a perfunctory comment in the opinion of the trial judge. Under all of the circumstances, I conclude that the petitioner has not met his burden of proving exhaustion of state remedies on either of these grounds, both of which raise serious issues which the state courts should have an opportunity to consider.
And now, this 5th day of February, 1970, it is ordered
1) That, on all issues relating to the trial use of relator's confession, the petition is denied.
2) That, as to the issues relating to the alleged perjury of a witness and the search and seizure issues, the petition is dismissed without prejudice, for failure to exhaust state remedies.
There is probable cause for appeal.
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