Swygert, Chief Judge, and Cummings and Kerner, Circuit Judges.
This is an appeal from the jury conviction of defendant-appellant, J. L. Hull, for second degree murder, a federal crime under 18 U.S.C. §§ 1114 and 1111, since the victim was an agent for the Bureau of Narcotics of the United States Treasury Department. Hull was tried with his half-brother, B. Ellis Robinson, who pled guilty during the trial and is not involved in this appeal.
Defendant's major contention for reversal concerns the legality of his preindictment custody and interrogation by federal agents and Indiana police, which began at midnight on December 20, 1967, and ended when he was brought before a United States Commissioner for arraignment at 3:00 o'clock the following afternoon. A pre-trial suppression hearing was held, and the district court judge ruled that the evidence of defendant's confession, elicited from the interrogation, and other evidence discovered as a result of the confession would be admissible at trial.
Specifically the defendant claims that his confession was involuntary and consequently inadmissible at trial.
We must decide whether Hull's confession, in light of all the facts and circumstances surrounding the December 20 custodial interrogation, was the product of his free choice, Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963); Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). If he confessed because his will was overborne by the interrogation and if he would have remained silent but for the improper influences on him, then we must hold his confession involuntary. Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897). Admittedly, this determination is a difficult one since it involves a consideration of both the propriety of the officers' conduct and its psychological effect on the mind and will of the accused. Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963).
In order to evaluate fully the effect of the custodial interrogation on the defendant, we must consider these facts: J. L. Hull is a 34 year old Negro who is mentally defective. His full-scale I. Q. is 54, and he has the mental age of an eight or nine year old child. He completed the third grade in school and is illiterate. Psychiatric experts termed him passive and easily led by a more dominant personality. Hull can follow instructions if they are repeated or paraphrased for him several times; otherwise he has a tendency to lose his attention and comprehension.
With this in mind, we turn to the events of December 19 and 20, 1967. On the evening of December 19, federal narcotics agents, Robert Bottorff and Mansel Burrell, were investigating Hull's half-brother, Robinson, for a possible narcotics violation. Burrell, the deceased, was acting as an undercover agent and had arranged an appointment with Robinson for a buy of narcotics. Before the contact was made that evening, Bottorff recorded the numbers of the currency Burrell was to use for the buy.
At 8:30 p. m., Bottorff, accompanied by another federal agent and two Gary, Indiana, policemen, observed Burrell enter Robinson's apartment. At 9:15 p. m., Burrell was seen leaving the apartment building, followed by Robinson and an unidentified man. Burrell started his government car, and the two other men entered a Pontiac automobile. Bottorff followed the Pontiac and noticed Burrell closely behind him, but lost both cars in traffic. Fifteen minutes later, Bottorff found Burrell's car parked in the alley near Robinson's apartment.
After surveilling Burrell's car for nearly two hours, Bottorff's companions returned to Gary Police Headquarters. At 11:30 p. m., Bottorff, observing Hull enter and start Burrell's car, pursued him and managed to stop him within a few blocks. Hull got out of Burrell's car and was moving away from the scene. Bottorff, believing the defendant to be in possession of a government car without authorization, identified himself and ordered him to stop at the point of a gun.
While Bottorff was searching him, Hull lunged for the gun and Bottorff hit him in the face and subdued him. Hull's face was bleeding. Bottorff continued the search and removed from Hull's pocket currency wrapped in a handkerchief. There were red stains on the money, and some of the numbers on the currency matched those which Bottorff had recorded from Burrell.
At 12:00 o'clock midnight Hull was booked at headquarters and taken to an interrogation room where Bottorff and three others were waiting for him. Bottorff's version of the interrogation is that within a few minutes Hull confessed that he saw Robinson shoot Burrell two to four times in the head and helped Robinson dump the body somewhere in Illinois. Bottorff testified that he read Hull his Miranda warnings and Hull then confessed, stating that he "just want[ed] to get it off [his] * * * chest." The district court found Bottorff's testimony lacking in credibility and believed that Hull did not confess to Bottorff and, in fact, constantly denied his guilt for many hours after Bottorff's questioning.
The district court's finding that Bottorff did not receive a confession from Hull before 12:30 a. m., is buttressed by the fact that Hull was continually confronted with questions from relays of interrogators and he adamantly denied involvement with Burrell. Many of the officers did not know as late as 3:00 a. m., that anything unusual had happened to Burrell. If Bottorff elicited an early confession from Hull, he would not have then embarked on the rudimentary investigation he subsequently conducted. It was not until 3:00 a. m., when the officers found a large quantity of blood in the trunk of the Pontiac which Bottoroff had followed earlier in the evening, that many suspected that there was foul play involved.
Meanwhile, the questioning of Hull continued. Many testified that officers individually and in teams questioned Hull during the night and through the following morning. There was a great deal of shuffling in and out of the interrogation room. Officer George Lowe, who questioned Hull alone and with another officer said that the questioning was vigorous and that Hull was upset. After 3:00 a. m., Hull was confronted by ...