Davis v. North Carolina/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice HARLAN joins, dissenting.

The rationale of the Court's opinion is that Davis, 'an impoverished Negro with a third or fourth grade education,' was overborne when he gave his confession to the rape-murder.

Davis, a 39-year-old man, admits that he has 'been in a lot of jails.' The record indicates that his intelligence was far above that of a fourth grader. His own testimony at his trial reveals a highly retentive memory. He described in detail his numerous arrests, convictions, prison sentences, and escapes over a 15-year span. Furthermore, during the federal habeas corpus hearing Davis showed his awareness of legal technicalities. At one point the prosecutor sought to cross-examine Davis as to whether he had 'been tried and convicted of various offenses.' Despite the fact that there was no objection to the question by his lawyer, Davis turned to the judge and said: 'Your Honor, do I have to answer that question? This is in the past.' After some argument about the admissibility of the evidence, the judge recessed the hearing for 10 minutes to give counsel an opportunity to present legal authority. Davis' objection was thereafter sustained.

This case goes against the grain of our prior decisions. The Court first confesses that the rule adopted under the Fifth Amendment in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, i.e., that an accused must be effectively advised of his right to counsel before custodial interrogation, is not retroactive and therefore does not apply to this case. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. However, it obtains the same result by reading the Due Process Clause as requiring that heavy weight must be given the failure of the State to afford counsel during interrogation as 'a significant factor in considering the voluntariness of statements.' Through this change of pace Davis' guilty handwriting is stamped a forgery and his conviction is reversed.

I have found no case dealing with lengthy detention by state officers which supports reversal here. The Court cites three: Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); and Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949), all of which were treated in terms of due process. But these cases are clearly distinguishable on their facts with respect to the character of the accused and the circumstances under which interrogation took place. Culombe was a 'mental defective of the moron class' who had twice been in state mental institutions. He had no previous criminal record. Fikes was 'a schizophrenic and highly suggestible.' He had only one prior conviction-for burglary. The interrogation of both these men was more concentrated than that of Davis. Turner was subjected to continual interrogation by a relay of officers, falsely told that others had implicated him, and not permitted to see his family or friends. The prosecutor admitted that his arraignment was delayed, in violation of a state statute, until the police could secure a confession. Turner had no prior criminal record.

On the other hand, Davis had a long criminal record. At the time of his arrest he was an escapee from state prison, and so could be properly held in custody. It is therefore wrong to compare police conduct here to the detention of an ordinary suspect until he confesses. Moreover, the sporadic interrogation of Davis can hardly be denominated as sustained or overbearing pressure. From the record it appears that he was simply questioned for about an hour each day by a couple of detectives. There was no protracted grilling. Nor did the police officers operate in relays.

The Court makes much of an 'arrest sheet' which informed the jailer that Davis was being held in connection with the murder of Mrs. Cooper and that he was an escaped convict. This sheet further directed: 'Do not allow anyone to see Davis. Or allow him to use telephone.' No witness was able to identify the author of this notation. It is true Captain McCall said that he 'might' have done it. But he said that, even so, it was merely a notice to the jailer that Davis was an escapee and, therefore, not permitted to see or talk to anyone. On the contrary, however, the record shows that Davis was not held incommunicado. Upon his request, the police located his sister the second day after his arrest, informed her that Davis was in custody, and on two separate occasions invited her to visit him. The officers first called on his sister for the sole purpose of telling her that Davis wished to see her. A few days later they also asked whether she was missing any of the clothes which were found on Davis. He made no request to see anyone else. Moreover, it is undenied that visitors from churches and schools entered the jail with scripture pamphlets. And Davis had one of these booklets in his hands the day of his confession.

Witnesses testified that Davis told them that his treatment was 'very fine and that everybody was courteous and kind to him.' As for the hike of some 14 miles along the railroad tracks, Davis described the purpose of it clearly:

'Well, we had some clothes and things, what I took up there,     and we wanted to go up there and get it straightened out; but      the place where I took the stuff I couldn't locate the place      because it was at night, you understand, when I took the clothes and things off      the line.'

As to the 'prayer' of Lieutenant Sykes, there is no testimony whatever that it was in any way 'coercive.' Indeed, one witness, Davis' preacher, quoted him as saying 'that he had nothing but praise for Lieutenant Sykes, especially in the way in which he dealt with him.' At another point the parson testified: 'Elmer told me that he appreciated the prayer of Lieutenant Sykes.' The Court disregards the fact that Davis had a copy of the scriptures in his hands when Sykes came into the room and continued to hold them as they talked. After Sykes-a lay preacher-noticed the testament, it was only natural that the conversation would turn to the scriptures and prayer. Sykes asked if Davis wished him to give a prayer. Davis said that he did, and Sykes prayed with him. The prayer was entirely unsuggestive.

It is said also that the food was not sufficient. But the uncontradicted evidence is that Davis never complained about the meals he received while in custody. Davis testified that he lost 15 pounds in jail. But this does not warrant a finding that he was improperly fed. No one could contradict or substantiate this contention because the record does not show that his weight was taken upon arrest. And Davis was found to be untruthful in most of his testimony. Indeed, Davis did not paint his treatment with a black brush until his habeas corpus hearing, although he testified at length at his trial in the state court.

Under these circumstances, it appears to me that the trial judge's findings cannot be found to be clearly erroneous. To the contrary, they are fully supported by the entire record. I would affirm.