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United States v. Israel

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


March 8, 1979

UNITED STATES OF AMERICA EX REL. DAVID LANE, NO. 34089, PETITIONER-APPELLANT,
v.
I. R. ISRAEL, WARDEN, MENARD CORRECTIONAL CENTER, AND ALLYN R. SIELAFF, DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENTS-APPELLEES.

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 75-C-34 - Alfred Y. Kirkland, Judge.

Author: Fairchild

Before FAIRCHILD, Chief Judge, and PELL and TONE, Circuit Judges.

FAIRCHILD, Chief Judge. Three issues are raised in this habeas corpus petition: (1) whether the petitioner's confession was obtained in violation of the standards set forth in Escobedo v. Illinois, 378 U.S. 478 (1964) and therefore should have been suppressed; (2) whether the confession should have been suppressed because it was involuntary; and (3) whether the trial judge's failure to instruct the jury as to the elements of murder was a denial of due process of law. Because the factual findings of the state court are not clear, and because certain material facts were not developed at the state court hearing, we reverse and remand for a new evidentiary hearing on the first two issues. We affirm denial of the petition with respect to the third issue.

On the night of May 26-27, 1965, two women were murdered on a rural road near Belvidere, Illinois. Their bodies were burned beyond recognition. At about 9:00 the next morning the state police officers who were in charge of the investigation sent word to the Rockford city police to "pick up" David Lane, the petitioner, who was the estranged husband of one of the women. Lane was arrested soon thereafter at his home. He was told he disputed facts will be discussed in more detail later) but it appears that Lane was questioned on three distinct occasions: first, on his way to or immediately after his arrival at the Rockford police department; second, later that morning when most of the state investigating officers were present; and third, after he had agreed to make a statement. After the second interrogation, at which he had consistently denied any knowledge of the events leading up to his wife's death, he was arrested for the murder and taken to a car for transportation back to Belvidere. Two state police officers told Lane that on the way back to Belvidere they would have to stop by the hospital where the bodies were so that Lane could identify his wife's body.Lane resisted this suggestion and agreed to make a statement. He was taken back into the police station where he was fully advised of his rights. He then made a statement in which he confessed to the murders.

At a suppression hearing held on September 29, 1965, the Winnebago County trial judge denied the defendant's motion to suppress the confession without making any specific findings of fact. After a jury trial in March, 1966, during which the defendant relied on a defense of temporary insanity, he was convicted of the murder of his wife, Karen Lane, and sentenced to a term of 60 to 75 years in the state penitentiary. The defense did not seek an instruction on the elements of murder and none was given. The Illinois Appellate Court sustained the conviction in People v. Lane, 23 Ill. App. 3d 287 (1974). The Illinois Supreme Court denied leave to appeal on March 21, 1975. The issues raised in the petition were all raised in the state appellate proceedings and are properly before us.

The present petition was filed in the district court on June 25, 1975. On November 18, 1977, the respondent's motion for summary judgment was granted. The district court held that at the time of Lane's alleged request for counsel he was in custody under a court order relating to his pending divorce and not as a murder suspect, and that after the investigation focussed on the petitioner he was advised of his rights but waived them. The district court also found that there had been a full and fair hearing in the state court on the voluntariness of the confession and that the state fact finding was not contary to the manifest weight of the evidence. Finally, the court held that the state trial court did not deny the petitioner due process of law or the right to trial by jury by failing, sua sponte, to instruct the jury on the elements of murder. This appeal followed.

THE ESCOBEDO ISSUE

There is all but overwhelming evidence in the record that when Lane was brought back into the Rockford police department after he had agreed to make a statement he was informed of, understood, and waived his right to counsel and his right to remain silent. Officers Prentice, Wise, and Bales all so testified, each one indicating that Lane responded by saying that a lawyer wouldn't do him any good (Tr. 12, 26, 51, 52, 64). The third interrogation of the petitioner followed these events. But the record is far less clear about the interrogation that occurred prior to the defendant's trip to the officer's car and his subsequent agreement to make a statement.

In Escobedo the Supreme Court held

"[Where], as here, the investigation is no longer a general inquiry with an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution... and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." 378 U.S. 478, 490

The defendant testified that he asked Officers Prentice and Carr, and possibly Wise and Bales, to speak to his attorney "several different times" (Tr. 86, 88), but was told that he could not do so until after he made a statement. The defendant was never asked whether he was advised of his right to remain silent. Only Officer Carr was asked if he had informed the defendant of that right. His answer was an ambiguous "not at that time" (Tr. 43). Officer Bales testified that he told Lane of his rights when he first introduced himself (Tr. 71) but Bales also testified that the (second) interrogation was already underway when he entered (Tr. 63). The only officer to refute Lane's claim that he had repeatedly asked to talk to his attorney was Officer Wise who said that the defendant did not ask to talk to an attorney when they first met (Tr. 58).

The Illinois Appellate Court resolved this issue by holding that "the discrepancy between the testimony of the law enforcement officers and defendant presented a factual question which the trial court could, and did, resolve unfavorably to the defendant. People v. Lane, 23 Ill. App. 3d 287, 291. Since much of the defendant's testimony was unrefuted, however, we cannot concur in that analysis. It is possible, of course, that the trial judge simply found the defendant's testimony not credible. But in the absence of any factual findings we cannot assume that was the case. White v. Finkbeiner, 570 F.2d 194 (7th Cir. 1978).

The district court granted summary judgment for the respondent on this issue on the premise that Lane was not the "focus" of the investigation during the period prior to his arrest for his wife's murder. It is clear from the record, however, that Lane was certainly the focus of the investigation at the time of the second interrogation. Between the first and second interrogations there was an interval of at least an hour (Tr. 10). During that interval the investigating officers had been to Lane's employer to check out the story Lane had given them during the first interrogation and had talked to several people, including Lane's sister, Doris Wilson, to whom Lane had already admitted the murders (Tr. 56, 522). They had also found some of the defendant's bloodstained clothing (Tr. 441) and the defendant's car which "reeked heavily of gasoline" and had "a red substance all over the steering wheel" (Tr. 522). They then returned to the police station and the second interrogation began.

It is also probable, though not quite as certain, that the defendant was the focus of the investigation from the moment he was first picked up at his home by the Rockford city police. When the state investigating officers telephoned the Rockford police they had already talked to the parents of the murder victims and had learned that Lane had called his in-laws the night before and had asked where he could find his wife (Tr. 397). There is nothing in the record to suggest that the police ever seriously considered any other suspect in the murders. Although the officers told the defendant that he was wanted by Belvidere authorities for violation of a circuit court order (Tr. 6), there is no doubt that in fact he was picked up at the request of the state police who were investigating the murders (Tr. 398). If there was in fact a circuit court order involved it was never introduced into evidence or described in any way. Even if such an order existed, however, that would not negate the strong inference that the police purpose in taking the defendant into custody was related not to such an order but was instead related to his wife's death.

Furthermore, it seems clear that the Rockford police knew why they were taking the defendant into custody and questioned him accordingly. While Officer Prentice's testimony about what, if any, questioning took place when the defendant was first picked up is somewhat vague (Tr. 7, 9, 19, 22), the testimony of his partner, Officer Carr, indicates that Lane was questioned immediately and that those questions were related to the murder investigation (Tr. 32-34).

On the record before us, then, we must conclude that the petitioner was the focus of the murder investigation at the time of the second interrogation and probably at the time of the first as well. There is no evidence that he was advised of his right to remain silent until sometime in the middle of the second interrogation. He testified that he asked for and was denied the opportunity to consult with counsel, but the sketchiness of the testimony about the first and second interrogations leaves us unable to determine whether in fact, or when, this request was made.*fn1 We therefore direct the district court to hold a new evidentary hearing on this point. 28 U.S.C. 2254.

VOLUNTARINESS

Throughout the second interrogation the defendant consistently denied that he had any information about his wife's death. State police officers Wise and Bales then advised him that he was under arrest for the murder, handcuffed him, and took him to Officer Wise's car for the trip back from Rockford to Boone County. On their way to the car the officers told Lane that on the way back it would be necessary to stop at St. Anthony's Hospital so that Lane could identify his wife's body (Tr. 64). Lane protested but was told it was necessary because he was the closest living relative (Tr. 64). Lane and Officer Wise then entered the back seat of the officer's car. Officer Bales remained outside (Tr. 64). Lane testified that Officer Wise told him that he wouldn't have to view the body if he made a statement (Tr. 89).Officer Wise denied that he offered Lane that option (Tr. 59) but acknowledged that he repeated his insistence on an identification of the body by Lane (Tr. 49). Lane "broke down," said he didn't want to see his wife, and agreed to make a statement (Tr. 49). Officer Wise then got out of the car, telling Officer Bales "David doesn't want to go to see his wife, he wants to tell us all about it." (Tr. 64). Lane was then taken back into the Rockford station where the written statement, subsequently introduced into evidence against him, was taken.

Aside from the question of whether or not Lane was explicitly told that he could avoid viewing the body if he would make a statement, the evidence is not in conflict. The question is whether that evidence leads to a conclusion that the defendant's "will was overborne" and that the subsequent statement was therefore inadmissible as involuntary. Lynum v. Illinois, 372 U.S. 528, 534 (1962).

At the suppression hearing the state trial judge indicated that the purpose of the hearing was to determine whether Lane's statement was voluntary (Tr. 82). At the end of the hearing, however, the court said only "motion to suppress the confession heard and denied" (Tr. 92). If the question of phychological coercion had been the only, or even the primary, issue raised at the hearing, we might infer a finding from the denial of the motion. But much of the testimony at the hearing involved possible deprivations of food and medical care, the duration of the interrogation (several of the court's own questions to witnesses focused on this factor, see, e.g., Tr. 36), and the warnings provided to Lane at the time of the third interrogation. We cannot say, therefore, that the simple denial of the motion is a "reliable" determination of this essential fact. On our own review of the record, despite the parties' district court stipulation that it is adequate, we find that certain material facts were not adequately developed in the state court proceedings and thus it will be necessary for the district court to hold an evidentiary hearing on this issue as well.

It is clear enough that identification of the body was not the true reason Officers Wise and Bales told the petitioner that it would be necessary for him to view his wife's body. The officers knew the body was burned beyond recognition (Tr. 455-456) (positive identification was eventually made through dental records); they had met Karen Lane's parents earlier in the morning but had apparently not asked them to try to make an identification, and once the petitioner agreed to make a statement the request for identification was dropped. We would also have little trouble in concluding that, whether implicitly or explicitly the officers were using the threat of having to view the body as a means of eliciting a statement from Lane. In addition to Lane's own testimony, and Officer Bales' testimony quoting Wise as saying "David doesn't want to go to see his wife, he wants to tell us all about it" (Tr. 64), three does not appear to be any other purpose for the deceit. But mere use of deceit in the obtaining of a statement does not make it involuntary per se. Frazier v. Cupp, 394 U.S. 731, 739 (1968). There must still be a determination of voluntariness that considers "the totality of the circumstances." Id.

We have a fair amount of information about the "totality of the circumstances" in which Lane's confession was made. We know, for example, that Lane was a 21 year old man with a ninth grade education who had been drinking heavily the night before the interrogation. Because the defense of temporary insanity was raised at trial, we also have some faily detailed information about his emotional makeup and mental stability. We know some details of the interrogation itself, such as the length of time involved, the number of officers present, the size and lighting of the interrogation room, etc. But, once again our lack of information about the questioning that took place during the first and second interrogations leaves us unable to determine whether the officers' request that Lane identify his wife's body was so coercive as to "overbear his will" and make his subsequent confession involuntary. As we noted before, we cannot tell to what extent Lane had been effectively assured of his right to remain silent prior to this time. The record is also silent as to how much the police had told Lane about the results of their investigation to that point. These were particularly gruesome murders and the body that Lane was being asked to view was later described to the jury as "just a big piece of ash, probably two, three feet long with skull. The head was looking up. There was no arms or legs on it. The ribs were sticking out." (Tr. 455). The extent to which Lane was aware of the condition of the body may well be critical to a determination of his mental state at the time of the confession, but there is nothing in the record which allows us to make a factual determination of that point. We therefore remand the case for an evidentiary hearing to receive whatever additional evidence the parties may wish to offer and to make a finding on the voluntariness of the petitioner's confession.

JURY INSTRUCTIONS

At the defendant's trial defense counsel did not seek an instruction as to the definition and elements of murder. The prosecutor also failed to request such an instruction and none was given. Petitioner now urges us to grant this petition for writ of habeas corpus on the grounds that the failure of the trial judge to give that instruction sua sponte constituted a denial of due process and of the defendant's right to a jury trial.

At trial Lane raised a defense of temporary insanity. Defense counsel's opening argument spoke only to that issue, arguing that "at the time in question [Lane] lacked the substantial capacity to appreciate the criminality of his conduct." (Tr. 542). In closing argument, despite defense counsels' reminders to the jury on two occasions that the government had a burden to prove all the allegations of the indictment (Tr. 653, 659), the only issue discussed in an argument that takes up 22 pages of transcript was that of intent. One of the defense attorneys told the jury "I feel that the issues are narrow and clear-cut in this case. They deal with intent." (Tr. 657). His co-counsel said it even more forcefully:

"There is one allegation in the indictment that I am interested in, and that one only. And I'm not interested in whether this person is Karen Lane, A6595, and I'm not interested in whether this happened in Winnebago County or Boone County. I'm interested in one material allegation here, and that happens to be the definition and meaning under the fact situation of this case of the word intent.... Now the question becomes, under the facts of this case, did David Lane on May 26, 1965, the date in question, and for the evidence that has been presented here, did he do this voluntarily? Did he do this freely? Did he do this intentionally? And this is the question for you to decide in this case." (Tr. 659-660).

The jury was properly instructed on the issue of intent. There was no controversy about any of the other allegations of the indictment. There is no reasonable possibility that the jury's verdict would have been different if they had been instructed as to the other elements of the murder charge. This is not a case where an erroneous instruction was given on a central issue, (compare Marks v. United States, 430 U.S. 188 (1977)), or where the omitted instruction is as fundamental to a fair trial as the presumption of innocence. (See Taylor v. Kentucky, U.S. , 98 S. Ct. 1930 (1978)). On the record before us we cannot say that the failure to give this instruction "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughton, 414 U.S. 141, 147 (1973) or was a denial of the petitioner's right to a jury trial. Henderson v. Kibbe, 431 U.S. 145 (1977). We therefore affirm the district court's denial of the petition on this issue.

Conclusion

The order granting summary judgment for the respondent is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.

PELL, Circuit Judge, dissenting.

The majority opinion requires that this case be returned to the district court, nearly fourteen years after the events giving rise to the litigation, for the purpose of an evidentiary hearing on two issues that were determined adversely to the petitioner in his state court trial, which also occurred nearly fourteen years ago. The evidentiary hearing now required will be in essence a retrial in a federal court of issues which appear to me to have been correctly decided when all of the pertinent facts were eidetically available. I therefore respectfully dissent.

It is not that there is any dispute about what the facts of this uxoricide were which led to the indictment and conviction for murder. While the majority opinion declines to concur in the analysis of the facts by the Illinois Appellate Court, I find no indication in the majority opinion that the following factual statement in that Illinois court's opinion in People v. Lane, 23 Ill.App.3d 287, 319 N.E. 2d 90, 92-93 (1974) is other than correct in every detail:

Defendant and his wife had been having marital problems; a divorce proceeding between them was pending in the Spring of 1965. Having consumed a substantial amount of alcohol throughout the day and evening of May 26, 1965, the defendant determined to find his wife, Karen, to attempt a reconciliation.When he located her, at approximately 10 p.m. in a rural section of Belvidere, Illinois she was accompanied by her friend Vicky Carlson.

While Karen Lane and Vicky Carlson were stopped at a stop sign, defendant approached their vehicle and asked his wife if he could talk to her. She agreed to talk to defendant and he then entered the rear seat of the car which Karen was driving. Karen then drove down a Belvidere rural road. Upon being told by his wife that she was no longer interested in saving their marriage and that she had "found someone else", defendant began beating her in the head. Consequently the car swerved off the road and hit a utility pole. Vicky Carlson was knocked unconscious; and defendant knocked his wife unconscious with either his fist or a whiskey bottle.

Defendant then walked or ran approximately 1 mile back to his automobile and secured a half gallon can of gasoline and returned to the car wherein the two young women still lay unconscious. After soaking the car with gasoline, defendant ignited it with a match. As a result, the bodies of the two women were burned beyond recognition.

Thereafter, defendant returned to his car and drove home to Rockford where he resided with his sister. He told his sister what he had done and then directed her to burn his clothing, which she did.

Not only did the sister relate this information to the state police prior to their interview with the defendant, but the sister testified at the trial, "I asked him again what had happened. And he said that he had killed his wife and girlfriend."

Indeed, as the majority opinion demonstrates in its reference to the defense final argument, the contention on trial was not that the act of killing two persons in a particularly gruesome manner was not committed by the defendant but rather that he lacked the mental capacity required for legal guilt.

I am not unmindful that the present state of the law is that fundamental constitutional rights must be preserved and upheld no matter how clear the guilt may be and no matter how difficult it may be, because of lapse of time, to preserve and uphold the public interest in seeing that the guilty are successfully prosecuted. In the present case, however, it appears to me that the fundamental constitutional rights were sufficiently protected as to indicate that the federal courts should refrain from intervening in this case of state law enforcement.

The crime and the trial both occurring prior to the decision in Miranda v. Arizona, 384 U.S. 436 (1966), the full scale warnings required by that case to secure the Fifth Amendment's privilege against self-incrimination were not required. On the other hand, the events did occur in the year following Escobedo v. Illinois, 378 U.S. 478 (1964) and People v. Hartgraves, 31 Ill. 2d 375 (1964), although the record does not reveal that either was cited to the trial court, nor that any argument whatsoever was advanced to the court in support of this phase of the motion to suppress.

While the Escobedo rule of the right to consult counsel is certainly not confined to the facts of that case, it must be observed that the situation in the present case is a far cry from that in Escobedo where not only had the defendant had an attorney who earlier had secured his release on habeas but in the incident in question the defendant several times had requested to see the lawyer who though present in the building had been refused access to the client despite the lawyer's persistent efforts to see him. The situation was made more egregious, as the Court observed, by the fact that the defendant, a layman, was undoubtedly unaware that under Illinois law an admission of mere complicity in the murder plot was legally as damaging as an admission of firing the fatal shots. I do not read Escobedo as laying down an absolute rule that every state denial of a request to contact counsel is an infringement of the constitutional right without regard to the circumstances of the case. Id. at 491. See also, Frazier v. Cupp, 394 U.S. 731, 739 (1969).

While the majority opinion declines to concur in the analysis of the Illinois Appellate Court that the testimony of the law enforcement officers and defendant presented a factual question which the trial court could, and did, resolve unfavorably to the defendant, it appears to me that upon a close analysis of the testimony at the suppression hearing, the trial court, despite the regrettable fact of not articulating a specific basis or specific bases for its decision, did properly resolve the Escobedo issue as found by the Illinois Appellate Court.

I turn to an examination of the testimony of Lane at the suppression hearing and note that the clear focus was on his not being permitted to call his divorce lawyer or to make a telephone call until he had signed a statement.

Looking at his testimony as it came in he stated that officers Prentice and Carr of the Rockford Police Department came to his home about nine o'clock and said that he was being arrested for some charge, not that of the crime in question, and he was then taken to the City of Rockford Police Department. According to him, the officers did question him as to where he had been the night before. They asked him what time he got home and he told them, and he also told them he had been to a couple of taverns. They asked whether his sister was home at the time he got home. In response to the question when after 9:30 did he next see a police officer, he said it was after lunch, "must have been 12:30," but when asked what happened between 9:30 and after lunch at the police station he said he was taken into a room and fingerprinted and had his picture taken and was questioned as to where he was born. This occurred "somewhere around 12:30." No one else was present besides Prentice and Carr at this time. He specifically said that neither Prentice nor Carr advised him he had a right to be represented by counsel at that time. This, of course, is not the same as saying he asked for a lawyer. When he was later taken to the interrogation room, he was asked to sign a statement. It is clear from the evidence, however, that the only statement that was written that he was asked to sign was the one based upon the information that he had given to the state police officer, which was after he had been asked about viewing the body of his wife. This statement, according to Prentice, was signed at 1:55 p.m. Lane, returning to his testimony, said he did not want to sign a statement and when asked, "what else," he gave no response. He was asked in regard to a specific question as to whether he asked the police officers to call an attorney and he said he had asked Prentice and Carr and he thought Wise and Bales and they had said he was not to see an attorney or anyone until a statement was made and signed. In response to a general question but without reference to a specific time, Lane testified that he had asked several different times to call an attorney and several different times to use the telephone but when this was followed by his being asked what he had been told he said that he was told he was not to make any phone calls or talk to anyone until the statement was made and signed. At the conclusion of his direct testimony he said, "they [Wise and Bales] said I wouldn't have to view the bodies if I signed the confession."

On cross-examination he was asked whom he told that he wanted to talk to his divorce lawyer. He replied that this was Wise, Bales, and Prentice, and he told them several different times and this was in the interrogation room. He was asked if he kept repeating this to them while the statement was being typed or when it was, to which he gave no response and he was then asked if he could answer that and he then responded that he said "that I would much rather talk with an attorney." But when he was further asked if he had said "I would much rather talk to an attorney," or "I demand to talk to an attorney," he said that it was the latter and that he had used these remarks to all of those officers. The specific time was not stated but it seems clear to me that this had reference to the time in the interrogation room when by his testimony on direct examination he was being asked to sign a statement. The evidence shows only one statement being prepared, that which he subsequently sought to suppress. Finally, on cross-examination he did say that he had asked to use the telephone not in his house, when he was arrested, but it was at the police station that he had asked to call his attorney. Again, no time is specified in this general testimony. He admitted that he had signed a statement but when he was presented his statement at the suppression hearing and asked if it was his signature he said it did not look like it and he wouldn't say that he had signed that statement.

Despite the lack of any precision in his testimony as to when he supposedly asked to make a telephone call or to speak to his lawyer the clear tenor of it is that he was in the interrogation room after lunch and was told that unless he signed the statement he would not be permitted either to call the lawyer who had represented him in his divorce action or anyone else.This was clearly contradicted by the officers' testimony. Carr testified in response to a question from the court that Lane did not ask him to use the telephone. The focus of the trial court clearly, it seems to me, was whether Lane was denied his asserted request for an attorney before he would give or sign a statement. To this Carr testified he had not heard anyone tell Lane he couldn't call a lawyer until he signed the statement. What did occur according to officer Prentice's testimony when the state police officers returned to the police station and asked Prentice to type a statement was the following:

So we went up to the Interrogation Room, put the paper in the typewriter, and I told Mr. Lane, I said, "According to our rules in the police station, as long as I am taking the statement, I have to tell you that you have the right to have an attorney, y/u do not have to make a statement unless you want to, and you decide what you want to do." And he said, "I don't really care." He said, "It isn't going to do me any good anyhow."

The state police officers, Wise and Bales, first saw Lane in the interrogation room some time shortly after 12:00 noon. Bales testified that he advised Lane of his rights when he first identified himself to Lane. After they had returned from the automobile when Lane had said he would give a statement, according to Bales' testimony:

We advised him that he had a right to remain silent, that he had a right to an attorney, and that he had a right to have an attorney present when his statement was taken. And he told me, he said, "That won't be necessary, it wouldn't do me any good anyway."

Prentice proceeded with the typing and Lane read and signed the statement, initialing the mistakes made in the typing.

Insofar as the Escobedo issue is concerned I am satisfied that the trial court viewed the issue as being whether Lane was to be believed that he had asked for an attorney but was told he would not get one until he gave or signed a statement or whether the officers were to be believed that Lane had been told before he either gave or signed a statement that he had a right to have an attorney and did not have to make a statement. Rather obviously the trial court believed the officers and the Illinois Appellate Court affirmed the trial court on this basis. I see no reason on these facts for a further evidentiary hearing on the issue.

The issue of the voluntariness of the confession is arguably a closer one. The trial judge, who had an opportunity to hear the testimony concerning the occurrences of the day of the arrest, and who expressed a primary interest in determining whether the statement was volunatary, effectively answered that question in the negative after hearing Lane's testimony.

The majority opinion holds that an evidentiary hearing is now necessary to develop further information reflecting on "the totality of the circumstances." Regarding the record we now have as sufficient for the purpose I cannot agree to the necessity of what amounts to a new trial fourteen years later on this issue.

The majority opinion notes that "much of the testimony at the hearing involved possible deprivations of food and medical care, the duration of the interrogation... and the warnings provided to Lane at the time of the third interrogation." With regard to the matter of food, Lane's own testimony showed he was picked up about 9:00 or 9:30 and no claim is made that he had not had breakfast.

Significantly Lane, himself, referred to the interrogation as being "after lunch." While the Rockford officers had asked routine police station booking questions when they brought him in, it is apparent they were not really involved in the homicide investigation which was being handled by the state police officers who did not see Lane for the first time until shortly after 12 o'clock noon. The Rockford officers were present during the 15 to 20 minutes of state police interrogation*fn1 and Prentice did type the statement as Lane related the facts. The record fairly indicates that the interrogation occurred after Lane had had lunch and no claim of lack of food is made in the habeas petition. It does not appear to have any bearing on the issue of voluntariness.

As to medi al care, the testimony fairly shows that Lane had received an injury to his ankle at his place of employment, that he had not bothered to go to the nurse to report it but had bandaged it himself. Prentice described the injury as more of a scratch or a scrape. Carr said Lane was asked if he had reported the injury which had been received at Lane's place of work the night before and Lane had stated he had not because "I didn't feel it was serious enough." In a question to Carr, Lane's attorney referred to "seven stitches" in the ankle but this was never followed up with proof when Lane testified. The injury does not appear to have had any significance on the issue of voluntariness. The statement was signed at 1:55 p.m. and Lane's testimony clearly indicates there was a substantial period of no activity between the time he arrived at the station and the interrogation "after lunch." During part of the time he was fingerprinted and asked routine background questions such as birthplace. Before the officers actually started to take the statement, Lane was given a warning which bordered on a Miranda warning.

As to Lane's drinking heavily the night before no claim was made either at the suppression hearing or in the habeas petition that he was other than sober at the time he first was picked up by the Rockford policemen and thereafter.

I find no basis for thinking that Lane had any specific knowledge of the condiion of hi wife's body. He left the scene promptly after setting the car afire. His attorney at the suppression hearing did not bring out any such information nor was it mentioned in the habeas petition. This seems to me to be unduly straining to find a lack of totality of circumstances.

I likewise find no reason for thinking that a person with a ninth grade education is particularly susceptible because of that fact to having his will overborne.

The trial judge had before him clear and explicit testimony from the officers that they did not engage in repressive or threatening tactics during the interrogation. The interrogation by the state police officers before Lane was taken to the automobile could not have exceeded a half an hour. If the officers had told Lane that they already had other incriminating evidence such as what the sister told them I cannot believe it would not have surfaced either at the suppression hearing or in the habeas petition, which it did not.

I am unable to avoid the feeling that the majority opinion ultimately turns on what it regards as an unfair police trick in telling Lane it would be necessary for him to identify his wife's body, notwithstanding that there may have been a real identification problem because there were two bodies neither of which was easily recognizable because each had been a human torch. I agree, whatever we may think of this particular police ploy, with the majority that the mere use of deceit in the obtaining of a statement does not make it involuntary per se. As the Illinois Appellate Court pointed out the psychiatrists' testimony at the trial indicated that, despite certain characterological impairment, Lane's process had not reached psychotic, or severely harmful proportions.

Remorse following a crime by one not habitually a criminal is not a strange phenomenon and if the thought of seeing the burnt body of a woman he had vainly tried to get to return to him activated remorse which precipitated a desire to tell all, it does not mean that his testimony was not voluntary.

In sum, I think the judgment of the district court should be affirmed at this time on both issues without the necessity of a further evidentiary hearing.


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