APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA -- PITTSBURGH
Before: Hunter, Garth, Circuit Judges and Stern,*fn* District Judge
1. Petitioner Jon E. Yount was convicted in 1966 of first degree murder and rape in the Court of Oyer and Terminer and General Jail Delivery of Clearfield County, Pennsylvania. On direct appeal the Pennsylvania Supreme Court determined that petitioner had not received adequate warnings against self-incrimination. It reversed the judgment of sentence and granted a new trial. Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397 U.S. 925 (1970) ("Yount I "). After a retrial before the same court, petitioner was convicted of first degree murder and was again sentenced to life imprisonment. The Pennsylvania Supreme Court on direct appeal affirmed the judgment of sentence. Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974) ("Yount II ").
2. In 1981 petitioner filed a petition for a writ of habeas corpus in United States District Court.*fn1 Petitioner alleged, inter alia, that his conviction had been obtained in violation of his fifth and fourteenth amendment privilege against self-incrimination and his sixth and fourteenth amendment right to a fair trial by an impartial jury.*fn2 The federal magistrate concluded that petitioner's privilege against self-incrimination had not been violated, but recommended that the petition be granted because petitioner had been denied a fair and impartial jury. App. at 124a-41a. The district court agreed on the former issue, rejected the magistrate's recommendation on the latter issue, and denied the petition. Yount v. Patton, 537 F. Supp. 873 (W.D. Pa. 1982).
3. We agree with the district court that petitioner's privilege against self-incrimination was not infringed.We conclude, however, that the petitioner's right to trial by a fair annd impartial jury was violated. We will therefore remand that portion of the case to the district court.
4. During the early evening of April 28, 1966, the body of Pamela Rimer, an 18-year old high school student, was found in a wooded area near her home in Luthersburg, Clearfield County. There were numerous wounds about her head, apparently caused by a blunt instrument. There were also cuts caused by a sharp instrument on her throat and neck. One of her stockings was knotted and tied around her neck. An autopsy showed that she had died of strangulation when blood from the throat and neck wounds was drawn into the lungs. Except for her stocking and shoe she remained fully clothed. The autopsy revealed no indication that she had been sexually assaulted.
5. Neighbors gave state police a description of a station wagon which they had seen at approximately the time and place at which the body was found. E.g., Testimony of Trial beginning November 17, 1970, at 143-48 ("T.T."). Sometime after two o'clock on the morning of April 29, 1966, state policemen learned that petitioner, the victim's high school mathematics teacher, had on prior occasions been seen in a station wagon fitting that description. T.T. at 290-93; Transcript of Proceedings -- August 17, 1970, at 17-18, 20-21 ("T.P.").
6. At approximately 5:45 that morning, petitioner voluntarily appeared at the State Police Substation in DuBois, Clearfield County. The occupants of the substation had participated in the investigation of the Rimer homicide, T.T. at 198-201, 203-05, 255-56, but had gone to sleep unaware of any link between the homicide and petitioner or his vehicle. T.T. at 275, 277; T.P. at 13, 20.*fn4 Petitioner rang the doorbell. A trooper awoke, opened the door and asked whether he could be of assistance. Petitioner stated, "I am the man you are looking for." The trooper asked petitioner to repeat what he had said, app. at 11a; T.T. at 250-51, and then asked whether petitioner was referring to "the incident in Luthersburg." Petitioner said yes. The trooper then asked petitioner to come in and be seated.
7. Leaving petitioner unattended, the trooper went to a back bedroom and roused a detective and a second trooper. The first trooper informed them that "there was a man in the front that said we are looking for him" in connection with the Luthersburg incident. See T.T. at 276; T.P. at 6. The first trooper then returned to the front office where petitioner had removed his coat, hat and gloves. The trooper asked petitioner for his identification. Petitioner gave the trooper his wallet, which the trooper returned after removing petitioner's automobile operator's license. T.T. at 252.
8. Shortly thereafter, the detective and the second trooper entered the front office. The detective was handed petitioner's license and learned that petitioner was Jon Yount. App. at 12a; T.T. at 259, 262-63, 271. The detective requested that petitioner be seated inside a smaller adjacent office, and gave petitioner something to eat. See Yount I, 435 Pa. at 278, 256 A.2d at 465; T.P. at 15. The detective asked, "Why are we looking for you?" Petitioner replied, "I killed that girl." Upon hearing that answer, the detective inquired, "What girl?", and petitioner responded, "Pamela Rimer."
9. The detective then asked, "How did you kill this girl?" Petitioner answered, "I struck her with a wrench and I choked her." At that time the detective undertook to advise petitioner of his rights. The detective, however, failed to tell petitioner of his right to court-appointed counsel if he could not afford his own attorney. The detective then conducted an interrogation regarding the details of the crime. At some point the second trooper searched petitioner and confiscated his penknift. T.T. at 265-66, 267-68, 272-73.*fn5 Petitioner gave his first written confession to the detective. Later the district attorney after giving similarly inadequate warnings, questioned petitioner and obtained another written confession.
B. State Proceedings and Proceedings Below
10. Before the first trial petitioner moved to suppress his statements and confessions as violative of Miranda v. Arizona, 384 U.S. 436 (1966). After a hearing the motion was denied. The petitioner's statements and confessions were admitted in the first trial over petitioner's objections.
11. The Pennsylvania Supreme Court held that the warnings given by the detective and district attorney were inadequate under Miranda v. Yount I, 534 Pa. at 279, 256 A.2d at 464 (Roberts, J., plurality opinion). The court rejected the Commonwealth's argument that the confessions were volunteered. "After indicating a willingness to talk, [petitioner] was interrogated about details of the crime, and his formal confession followed." 435 Pa. at 279-80, 256 A.2d at 465 (emphasis in original); see 435 Pa. at 281, 256 A.2d at 468 (Jones, C.J., concurring). The court found the confessions invalid and granted a new trial. 435 Pa. at 281, 256 A.2d at 466.
12. Prior to the second trial petitioner requested that his oral and written statements be suppressed. The trial court on the authority of Young I suppressed the written confessions, as well as the question "How did you kill this girl?" and its answer. The trial court ruled, however, that petitioner's statement "I killed that girl" and his identification of "that girl" as "Pamela Rimer" were admissible under Yount I. App. at 748a, 755a. It concluded that petitioner's statements were made before petitioner was in custody. App. at 755a.
13. On appeal the Pennsylvania Supreme Court did not determine whether petitioner was in "custody" when he made the statements to the detective. Young II, 455 Pa. at 311 n.4, 314 A.2d at 247 n.4. Instead it ruled that the statements were volunteered and not the product of interrogation. The court said that the detective's first question, "Why are we looking for you?", was simply an extemporaneous response "of neutral character." 455 Pa. at 310, 314 A.2d at 246. In the court's view the detective's question "What girl?" after petitioner had responded, "I killed that girl," was merely "a clarifying inquiry." Id. The supreme court therefore concluded that the questions were not calculated, expected or likely to elicit an incriminating response. 455 Pa. at 309, 314 A.2d at 246.
14. In his petition for a writ of habeas corpus, petitioner again argued that his fifth and fourteenth amendment privilege against self-incrimination had been violated by the admission of his responses to the detective's questions. The magistrate ruled that the responses were properly admitted because only after those responses, when "the police recognized that petitioner was present to confess his participation in a crime, did his presence become custodial." App. at 132a. The magistrate did not consider whether the questions constituted interrogation. The district court adopted the magistrate's findings. 537 F. Supp. at 875.
15. Miranda held that unless the government has advised a defendant of his rights, if cannot put into evidence statements stemming from the "custodial interrogation" of the defendant. 384 U.S. at 444. The Supreme Court defined "custodial interrogation" to mean
questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
16. Petitioner argues on appeal that his statements "I killed that girl" and "Pamela Rimer" must be excluded as the products of custodial interrogation. He contends that the detective's questions, constituted "interrogation," and asserts that the state policemen would not have allowed him to leave the substation when the questions were posed. We need not consider whether the questions "Why are we looking for you?" and "What girl?" constituted interrogation under Miranda because we conclude that petitioner was not in "custody" until after he had answered those questions. See Beckwith v. United States, 425 U.S. 341, 345-46 (1976); United States v. Mesa, 638 F.2d 582, 588 (3d Cir. 1980) (opinion of Seitz, C.J.).
17. To determine whether an individual is in custody, we use the "objective test of whether the "government has in some meaningful way imposed restraints on [a person's] freedom of action." Steigler v. Anderson, 496 F.2d 793, 798 (3d Cir.) (quoting United States v. Jaskiewicz, 433 F.2d 415, 419 (3d Cir. 1970), cert. denied, 400 U.S. 1021 (1971)), cert. denied, 419 U.S. 1002 (1974). Where, as here, the individual has not been openly arrested when the statements are made,
something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart.
Id. at 799 (quoting United States v. Hall, 421 F.2d 540, 545 (2d Cir. 1969), cert. denied, 397 U.S. 990 (1970)); accord Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam); see Mesa, 638 F.2d at 587 n.4 (opinion of Seitz, C.J.). When the questioning occurs in a police station we must scrutinize the circumstances surrounding the statements with extreme care for any taint of phychological compulsion or intimidation. Steigler, 496 F.2d at 799.
18. In making our determination, we are mindful of the Supreme Court's caution that "custody" must not be read too broadly:
[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.
Mathiason, 429 U.S. at 495; accord Steigler, 496 F.2d at 799. In particular we note the Court's statement in Miranda:
There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statements he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
384 U.S. at 478 (note omitted).
19. Petitioner came voluntarily and on his own initiative to the substation. The state police did not know why he was there. The first trooper left petitioner unattended while petitioner on his own accord removed his outer clothing. The detective testified that before he posed the questions he would have returned petitioner's operator's license and allowed him to leave had petitioner so requested. T.P. at 15-16. On this record we have no difficulty in concluding that petitioner was not in custody when the detective asked, "Why are we looking for you?" Sullivan v. Alabama, 666 F.2d 478, 482 (11th Cir. 1982); see Mathiason, 429 at 495; Orozco v. Texas, 394 U.S. 324, 325 (1969); Barfield v. Alabama, 552 F.2d 1114, 1118 (5th Cir. 1977). The admission of petitioner's response to that question therefore did not violate his fifth and fourteenth amendment privilege against self-incrimination.
20. Petitioner's response, "I killed that girl," was obviously highly incriminating. Although such an incriminating response undoubtedly heightened the detective's suspicion, it is police compulsion, and not the strength of police suspicious, which places a suspect in custody. See Beckwith, 425 U.S. at 346-47.
The more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation and to create the kind of atmosphere of significant restraint that triggers Miranda. . . . But this is simply one circumstance, to be weighed with all the others.
Steigler, 496 F.2d at 799-800 (quoting Hall, 421 F.2d at 545).
21. The detective testified that petitioner remained free to leave the substation when the detective asked, "What girl?" T.P. at 5. The detective explained that only after petitioner gave the name of the girl and how he had killed her could the detective determine that the petitioner was not merely seeking personal aggrandizement by confessing to a sensational crime in which he had no part. T.P. at 3-4. Petitioner, on the other hand, does not allege that the state police did "anything different" after he had stated, "I killed that girl." See Brief for Petitioner on Petition for Writ of Habeas Corpus at 19-20, 22-23 ("Brief for Petitioner"). Instead petitioner takes the position that he was in custody from the moment he identified himself, and that "either all the statements were voluntary or all were involuntary." Id. at 19; see Appellant's Brief at 33. In addition, we can find no evidence that the detective at that juncture used any additional "force or intimidation, physical or phychological, actual or implied," Government of Virgin Islands v. Berne, 412 F.2d 1055, 1060 (3d Cir.), cert. denied, 396 U.S. 837 (1969).
22. Both the state trial court and the federal magistrate concluded that petitioner was not in custody until he responded, "Pamela Rimer." The district court agreed. After examining the peculiar facutal circumstances of this case we cannot conclude that the district court erred. We therefore hold that petitioner's privilege against self-incrimination was not violated by the admission of his statements "I killed that girl" and "Pamela Rimer."
II. FAIR AND IMPARTIAL JURY
A. Facts and State Proceedings
23. Clearfield County is a rural county with a population of approximately seventy thousand served by two newspapers with a total circulation of approximately twenty-five thousand.On April 29, 1966, each of the newspapers devoted its front page to the Rimer homicide and to petitioner's appearance at the substation. Both newspapers gave front-page coverage to the pre-trial proceedings, the voir dire of 104 veniremen, and the nine-day trial. In the Dubois Courier Express the publicity culminated in seventeen consecutive editions each bearing banner headlines and carrying at least two feature articles. The Clearfield Progress gave the case similarly intense coverage. As the papers related, public interest in the proceedings was unprecedented; The Progress later adjudged petitioner's trial the top news item of 1966.*fn6
24. The coverage was as detailed as it was extensive, see app. at 135a, 136a. The newspapers related in full petitioner's detailed written confessions as well as his testimony at trial retelling the homicide. They also detailed petitioner's defense of temporary insanity, the charge and evidence of rape, and finally petitioner's conviction on October 7, 1966, of both rape and first-degree murder.
25. Petitioner's cause continued to receive front-page coverage at every step of his appeal. Banner headlines announced the reversal of the conviction in Yount I. The dissent was reprinted in full, and a local radio program became a forum in which callers expressed their hostility to petitioner. As the second trial approached, newspaper coverage increased. The selection of each juror merited an article and often a profile. By the close of voir dire the two newspapers had printed sixty-six front-page articles on the appeal and retrial.*fn7
26.Petitioner was returned to Clearfield for retrial before the same judge. On May 5, 1970, petitioner requested a change of venue. He claimed that the publicity which had saturated the county since the murder, and the continuing discussion of the case among residents, made a fair trial in Clearfield County impossible. In particular, petitioner alleged that the dissemination of prejudicial information outside of evidence was so widespread that it could not be eradicated from the minds of potential jurors. The prosecution argued in response that the case had received so much publicity across the state that it would be useless to change the venue. The trial court found that after the initiation of the appeal the newspapers had merely publicized the actions of the courts "without editorial comment of any kind." App. at 748a-49a. It denied the petition for change of venue on September 12, 1970.
27. Jury selection began on November 4, 1970, and took ten days, seven jury panels, 292 veniremen and 1186 pages of testimony. One hundred and twenty-five of the 292 veniremen were executed because they had not been chosen properly. Four others were dismissed for cause before they were questioned on the case. Of the 163 remaining veniremen who were questioned, all but two had read of the case in the newspapers, had heard about it on radio or television, or were otherwise familiar with it. See app. at 135a, 137a. When asked whether they had discussed the case, had heard it discussed, or had heard others express their opinion as to petitioner's guilt or innocence, over ninety percent said that they had. See app. at 135a, 137a.*fn8
28. Of the 163 veniremen questioned on the case, 121 were dismissed for cause.*fn9 Ninety-six of those 121 veniremen were successfully challenged after they testified that they had firm and fixed opinions*fn10 which could not be changed regardless of what evidence was presented. See app. at 135a & n.13.*fn11 An additional 21 of the 121 veniremen were dismissed for cause after they said that they had an opinion which they could change only if the petitioner could convince them to do so. See app. at 135a-36a & nn. 14, 15.*fn12 Thus 117 out of the 163 veniremen questioned were successfully challenged for cause after they said they could not set their opinion aside before entering the jury box.
29. There were also nine ther veniremen, unsuccessfully challenged for cause by petitioner, who indicated that they had an opinion which they could change only if the petitioner could convince them to do so.*fn13 When we combine those nine with the 117 veniremen dismissed for cause, we find that a total of 126 out of the 163 veniremen questioned on the case were willing to admit on voir dire that they would carry their opinion into the jury box.*fn14
30. Voir dire gave other indications of the depth of community sentiment. One venireman, the wife of a minister, testified that she had heard too many opinions to be sure of her own. She was then asked:
Q. Would your presence in serving as a juror create a difficulty in your parish?
A. Why yes -- when people heard my name was on for this -- countless people of the church have come to me and said they hoped I would take -- the stand I would take in case I was called. I have had ...