Hastie, Chief Judge and Maris and Freedman, Circuit Judges. Maris, Circuit Judge (dissenting).
Relator was convicted in December 1964 of second degree murder after a jury trial in the Essex County Court in New Jersey and sentenced to imprisonment for a term of 28 to 30 years. On direct appeal, the Supreme Court of New Jersey affirmed the conviction. State v. Harvin, 46 N.J. 151, 215 A.2d 352 (1965). Relator then sought federal habeas corpus in the district court of New Jersey which dismissed his petition.*fn1 His appeal is now before us.
Relator's first contention is that the statement he gave the police which was introduced in evidence at the trial over his objection was inadmissible under Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), because he was without the assistance of counsel at his interrogation. His trial began after Escobedo was decided, but prior to the decision of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and therefore the rule of Escobedo and not of Miranda applies. Johnson v. New Jersey, 384 U.S. 719, 732, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966).
The police testified that they told relator he had a right to have counsel present, but whether this be true or not, it is undenied that relator never specifically requested counsel.*fn2 In view of this, his claim of denial of the right to counsel must fail. We are not unmindful of the merit of the argument that a failure to ask for counsel is not meaningful where a defendant has no knowledge of such right.*fn3 But we reviewed the subject in Billingsley v. New Jersey, 408 F.2d 1181 (3 Cir. 1969) in the light of the Supreme Court's later decisions and held that "the rule of Escobedo can only be invoked by a defendant who has requested and been denied counsel. Since he did not request counsel, appellant cannot avail himself of Escobedo." (p. 1183)*fn4
Relator also attacks his statement as involuntary and claims that it was the product of coercion by the police.
Relator was arrested on April 24, 1964, at about 10:30 p.m. and taken to police headquarters where he was booked for murder. After spending the night in jail he was interrogated by the police on April 25 from 12:05 to 1:05 p.m. and again from 3:15 to 4:35 p.m. No verbatim transcript was made of the interrogation, but at its conclusion a statement was prepared in question and answer form summarizing relator's responses. The statement was read to him and he made his mark at the end. It is undisputed that relator has a low grade mentality and can neither read nor write. A physician who examined him on behalf of the state testified that he is a low grade moron but has enough residual mental capacity to understand the nature and quality of his behavior.
Relator claims that he was threatened by the police shortly after his arrest, that he was not fed during the period of confinement before the statement was elicited and that his common-law wife was jailed without any charge made against her while he was being interrogated. He was kept in custody for almost a day before being taken to a magistrate. On the other hand, the period of detention from the time of his arrest to the signing of the statement, including a night's rest, was less than 24 hours. The interrogation itself lasted less than two hours. Neutralizing the claim of coercion is the indication in the record that relator cooperated fully with the police almost from the beginning of the questioning and that he does not challenge the accuracy of most of what is contained in the statement but instead contends that it is incomplete because it fails to recite all that he told the police. He admits the correctness of the statement that he shot the decedent, but claims that it fails to include his explanation that he had taken out his gun only in self-defense and that it went off accidentally.
The district judge, on a consideration of the "totality of the circumstances,"*fn5 decided that the statement was not involuntary. This decision was arrived at on the basis of the state court record, without an evidentiary hearing in the district court. These circumstances bring us to relator's final claim that the state trial court in admitting the statement into evidence failed to comply with the standard of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). If this claim is justified, the determination of the voluntariness of the statement should not have been made by the district court nor should it be made by us on the state court record but rather by the state court in a Jackson v. Denno hearing.
The trial court followed the practice then prevailing in New Jersey, which the Supreme Court later approved in Pinto v. Pierce, 389 U.S. 31, 88 S. Ct. 192, 19 L. Ed. 2d 31 (1967), and in the presence of the jury heard the testimony relating to the making of the statement.*fn6 The trial judge then excused the jury and heard legal argument on the admission of the statement. Although counsel presented their views at length, no reference was made by either counsel or by the judge to Jackson v. Denno, which had been decided six months earlier. Counsel for relator referred to New Jersey decisions which he believed require a trial judge to determine initially the voluntariness of a confession.*fn7 The prosecutor, however, made it clear that in his view the duty of the trial judge was to admit the statement in evidence if a prima facie case of its validity had been made out, and that it would then be for the jury to determine, by judging the credibility of the witnesses, whether it was voluntarily given. "They" -- the jury -- "can judge of the credibility, not my adversary, not me and not your Honor,*fn8 as to whether this, in fact, was voluntary."*fn9
After a short recess the trial judge announced his decision outside the hearing of the jury. He ruled that the statement was admissible and that it was the jury's function to determine its voluntariness. The judge's decision followed the channel marked out by the prosecution's view of his function. He distinguished between admissibility and voluntariness, limiting the trial judge to the determination, as the test of admissibility, whether the state had made out a prima facie case, and leaving it exclusively to the jury to determine whether the confession was in fact voluntary.*fn10
It may be that in ruling that the statement was "admissible" the trial judge intended to conform to the principle of Jackson v. Denno. This view would have greater strength if the ruling had been announced in the presence of the jury, for its language then might be explained as an effort to keep from the jury any indication that the judge had passed on the voluntariness of the statement and thus avoid influencing them in making their determination*fn11 The ruling here, however, is too equivocal to meet the test required by Jackson v. Denno that there must be not only a "reliable" but also a "clear-cut" determination by the judge of the voluntariness of a confession, including the resolution of disputed facts upon which the voluntariness issue may depend. (Jackson v. Denno, 378 U.S. 368, 391, 84 S. Ct. 1774, 12 L. Ed. 2d 908.) Even more clearly does the ruling fail to satisfy the requirement as it was later expressed in Sims v. Georgia, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593 (1967). There the trial judge, outside the hearing of the jury, admitted a confession into evidence on the ground that once the state had made out a prima facie case that the statement was voluntarily made, it was for the jury to determine on conflicting evidence whether it was voluntary. The Supreme Court, holding that the action of the trial judge violated the rule of Jackson v. Denno, said:
"A constitutional rule was laid down in [Jackson v. Denno] * * * that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. * * * It is not for the jury to make the primary determination of the voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is ...