author: Mr. Chief Justice Warren,

text:
    JOHNSON et al. v. NEW JERSEY.
    No. 762.
    Argued February 28, March 1-2, 1966.
    Decided June 20, 1966.

      Stanford, Shmukler and M. Gene Haeberle argued the cause for petitioners. With them on the briefs was Curtis R. Reitz.

      Norman Heine argued the cause and filed a brief for respondent.

      Telford Taylor, by special leave of Court, argued the cause for the State of New York, as amicus curiae. With him on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Barry Mahoney and George D. Zuckerman, Assistant Attorneys General, joined by the Attorneys General for their respective States and jurisdictions as follows: Richmond M. Flowers of Alabama, Darrell F. Smith of Arizona, Bruce Bennett of Arkansas, Duke W. Dunbar of Colorado, David P. Buckson of Delaware, Earl Faircloth of Florida, Arthur K. Bolton of Georgia, Allan G. Shepard of Idaho, William G. Clark of Illinois, Robert C. Londerholm of Kansas, Robert Matthews of Kentucky, Jack P. F. Gremillion of Louisiana, Richard J. Dubord of Maine, Thomas B. Finan of Maryland, Norman H. Anderson of Missouri, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, Robert Y. Thornton of Oregon, Walter E. Ales-sandroni of Pennsylvania, J. Joseph Nugent of Rhode Island, Daniel R. McLeod of South Carolina, Waggoner

      Carr of Texas, Robert Y. Button of Virginia, John J. O’Connell of Washington, C. Donald Robertson of West Virginia, John F. Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico and Francisco Comeiro of the Virgin Islands.

      Duane R. Nedrud, by special leave of Court, argued the cause for the National District Attorneys Association, as amicus curiae, urging affirmance. With him on the brief was Marguerite D. Oberto.

      Anthony G. Amsterdam, Paul J. Mishkin, Raymond L. Bradley, Peter Hearn and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae.

   Opinion of the Court by

Mr. Chief Justice Warren,

announced by Mr. Justice Brennan.

In this case we are called upon to determine whether Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, ante, p. 436, should be applied retroactively. We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision. We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago. The convictions assailed here were obtained at trials completed long before Escobedo and Miranda were rendered, and the rulings in those cases are therefore inapplicable to the present proceeding. Petitioners have also asked us to overturn their convictions on a number of other grounds, but we find these contentions to be without merit, and consequently we affirm the decision below.

Petitioner Cassidy was taken into custody in Camden, New Jersey, at 4 a. m. on January 29, 1958, for felony murder. The police took him to detective headquarters and interrogated him in a systematic fashion for several hours. At 9 a. m. he was brought before the chief detective, two other police officers, and a court stenographer. The chief detective introduced the persons present, informed Cassidy of the possible charges against him, gave him the warning set forth in the margin, concluded that he understood the warning, and obtained his consent to be questioned. Cassidy was then interrogated until 10:25 a. m. and made a partial confession to felony murder. The stenographer recorded this interrogation and read it back to Cassidy for his acknowledgment. Police officers then took him to another part of the building and apparently questioned him further. At 12:15 p. m. he was brought back to the chief detective’s office for another half hour of recorded interrogation. Under circumstances similar to those already described, Cassidy amended his confession to add vital incriminating details. For the next 11 hours he was held in a detention room and may have been subjected to further questioning. At 11:40 p. m. the police returned him to the chief detective’s office for a final brief round of recorded interrogation. Taken together, Cassidy’s three formal statements added up to a complete confession of felony murder, and they were later introduced against him at his trial for that crime.

While the present collateral proceeding was pending following our decision in Escobedo, Cassidy filed affidavits in the New Jersey Supreme Court which detailed for the first time certain supposed circumstances of his confession. In his own affidavit, he claimed that on at least five separate occasions during his interrogation, he asked for permission to consult a lawyer or to contact relatives. The police allegedly either ignored these requests or told him that he could not communicate with others until his statement was completed. Cassidy also produced affidavits from his mother, his uncle, and his aunt, claiming that during this period they called the detective headquarters at least three times and once appeared there in person, seeking information about Cassidy and an opportunity to speak with him. Their efforts allegedly 'were thwarted by the police. These belated claims were left uncontroverted by the State and were accepted as true by the court below for purposes of the Escobedo issue.

The police took petitioner Johnson into custody in Newark, New Jersey, at 5 p. m. on January 29, 1958, for the same crime as Cassidy. He was taken to detective headquarters and was booked. Later in the evening the police brought him before a magistrate for a brief preliminary hearing. The record is unclear as to what transpired there. Both before and after the appearance in court, he was questioned in a routine manner. At 2 a. m. the police drove Johnson by auto to Camden, the scene of the homicide, 80 miles from Newark. During the auto ride he was again interrogated about the crime. Upon arrival in Camden at about 4:30 a. m., the police took him directly to detective headquarters and brought him before the chief detective, three other police officers, and a court stenographer. As in Cassidy’s case, Johnson was introduced to the persons present, informed of the possible charges against him, and given the same warning already set forth. He stated that he understood the warning and was willing to be questioned under those conditions. The police then interrogated him until 6:20 a. m., a period of about one and one-half hours. During the course of the questioning, he made a full confession to the crime of felony murder. This interrogation was recorded by the stenographer and read back to Johnson for his acknowledgment.

Like Cassidy, Johnson filed affidavits in the New Jersey Supreme Court in this collateral proceeding following our decision in Escobedo, detailing for the first time certain supposed circumstances of his confession. In his own affidavit, he claimed that at four separate points during the period described above, he asked for permission to consult a lawyer or to contact relatives so that they could obtain a lawyer for him. As in Cassidy’s case, the police allegedly either ignored these requests or told him that he could not communicate with others until he had given a statement. Johnson also produced affidavits from his mother and his girl friend, claiming that on three occasions after the homicide and prior to the confession, they called detective headquarters or went there in person, seeking information about Johnson and an opportunity to speak with him. Their efforts allegedly were rebuffed by the police. These belated claims, like Cassidy’s, were left uncontroverted by the State and were accepted as true by the court below for resolution of the Escobedo issue.

The confessions of Johnson and Cassidy were offered in evidence by the State at their joint trial for felony murder. The judge held a hearing out of the presence of the jury on the voluntariness of the confessions. Petitioners made no effort to rebut the testimony adduced by the State relating to this issue. The judge found the confessions voluntary and admitted them into evidence. Petitioners then expressly relinquished their right under state law to have the issue of voluntariness, and the accompanying evidence, submitted to the jury for redetermination. They did not introduce any testimony to dispute the correctness of their confessions.

In summation at the close of trial, defense counsel explicitly asserted that the confessions were truthful and pleaded for leniency on this ground. Cassidy’s lawyer stated to the jury:

“Whatever is in this statement made by Stanley Cassidy is true. I know it is true. . . . [M]y reason for knowing that it is true is because of the meetings and consultations I have had with Stanley. We have been over this many, many times.
“I know it is true because I know Chief Dube, and Chief Dube is a fine interrogator. If you do not answer truthfully, believe me, he will question you until he does get the truth, and Chief Dube got the truth.”

Likewise Johnson’s lawyer told the jury:

“The statement of Johnson was truthful and honest, because when that was finished, that was the end of it.
“There were no threats. There was no attempt to evade. There was no trickery. Anything that Chief Dube asked him he answered honestly and truthfully.”

The jury found Johnson and Cassidy guilty of murder in the first degree without recommendation of mercy, and they were sentenced to death.

The convictions of Johnson and Cassidy became final six years ago, when the New Jersey Supreme Court affirmed them upon direct appeal and the time expired for petitioners to seek certiorari from the decision. There followed a battery of collateral attacks in state and federal courts, based on new factual allegations, in which petitioners repeatedly and unsuccessfully assailed the vol-untariness of their confessions. This proceeding arises out of still another application for post-conviction relief, accompanied by a fresh set of factual allegations, in which petitioners have argued in part that their confessions were inadmissible under the principles of Escobedo. The court below rejected the claim, holding that Esco-bedo did not affect convictions which had become final prior to the date of that decision, and it is this holding which we are principally called upon to review. In view of the standards announced one week ago concerning the warnings which must be given prior to in-custody interrogation, this case also obliges us to determine whether Miranda should be accorded retroactive application.

In the past year we have twice dealt with the problem of retroactivity in connection with other constitutional rules of criminal procedure. Linkletter v. Walker, 381 U. S. 618 (1965); Tehan v. Shott, 382 U. S. 406 (1966). These cases establish the principle that in criminal litigation concerning constitutional claims, “the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application.” 381 U. S., at 628; 382 U. S., at 410. These cases also delineate criteria by which such an issue may be resolved. We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda. See 381 U. S., at 636; 382 U. S., at 413.

In Linkletter we declined to apply retroactively the rule laid down in Mapp v. Ohio, 367 U. S. 643 (1961), by which evidence obtained through an unreasonable search and seizure was excluded from state criminal proceedings. In so holding, we relied in part on the fact that the rule affected evidence “the reliability and relevancy of which is not questioned.” 381 U. S., at 639. Likewise in Tehan we declined to give retroactive effect to Griffin v. California, 380 U. S. 609 (1965), which forbade prosecutors and judges to comment adversely on the failure of a defendant to testify in a state criminal trial. In reaching this result, we noted that the basic purpose of the rule was to discourage courts from penalizing use of the privilege against self-incrimination. 382 U. S., at 414.

As Linkletter and Tehan acknowledged, however, we have given retroactive effect to other constitutional rules of criminal procedure laid down in recent years, where different guarantees were involved. For example, in Gideon v. Wainwright, 372 U. S. 335 (1963), which concerned the right of an indigent to the advice of counsel at trial, we reviewed a denial of habeas corpus. Similarly, Jackson v. Denno, 378 U. S. 368 (1964), which involved the right of an accused to effective exclusion of an involuntary confession from trial, was itself a collateral attack. In each instance we concluded that retroactive application was justified because the rule affected “the very integrity of the fact-finding process” and averted “the clear danger of convicting the innocent.” Linkletter v. Walker, 381 U. S., at 639; Tehan v. Shott, 382 U. S., at 416.

We here stress that the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved. The right to be represented by counsel at trial, applied retroactively in Gideon v. Wainwright, supra, has been described by Justice Schaefer of the Illinois Supreme Court as “by far the most pervasive ... [o]f all of the rights that an accused person has.” Yet Justice Brandéis even more boldly characterized the immunity from unjustifiable intrusions upon privacy, which was denied retroactive enforcement in Linkletter, as “the most comprehensive of rights and the right most valued by civilized men.” To reiterate what was said in Linkletter, we do not disparage a constitutional guarantee in any manner by declining to apply it retroactively. See 381 U. S., at 629.

We also stress that the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved. Accordingly as Linkletter and Tehan suggest, we must determine retroactivity “in each case” by looking to the peculiar traits of the specific “rule in question.” 381 U. S., at 629; 382 U. S., at 410.

Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. On the other hand, we denied retroactive application to Griffin v. California, supra, despite the fact that comment on the failure to testify may sometimes mislead the jury concerning the reasons why the defendant has refused to take the witness stand. We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial.

Having in mind the course of the prior cases, we turn now to the problem presented here: whether Escobedo and Miranda should be applied retroactively. Our opinion in Miranda makes it clear that the prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice. See, ante, pp. 458-466. They are designed in part to assure that the person who responds to interrogation while in custody does so with intelligent understanding of his right to remain silent and of the consequences which may flow from relinquishing it. In this respect the rulings secure scrupulous observance of the traditional principle, often quoted but rarely heeded to the full degree, that “the law will not suffer a prisoner to be made the deluded instrument of his own conviction.” Thus while Escobedo and Miranda guard against the possibility of unreliable statements in every instance of in-custody interrogation, they encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious coercion.

At the same time, our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. See Fay v. Noia, 372 U. S. 391 (1963). Prisoners may invoke a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years. See Reck v. Pate, 367 U. S. 433 (1961). That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. See Haynes v. Washington, 373 U. S. 503 (1963) ; Spano v. New York, 360 U. S. 315 (1959). Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has not already been afforded them. See Townsend v. Sain, 372 U. S. 293 (1963). Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the non-retroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.

Nor would retroactive application have the justifiable effect of curing errors committed in disregard of constitutional rulings already clearly foreshadowed. We have pointed out above that past decisions treated the failure to warn accused persons of their rights, or the failure to grant them access to outside assistance, as factors tending to prove the involuntariness of the resulting confessions. See Haynes v. Washington, supra; Spano v. New York, supra. Prior to Escobedo and Miranda, however, we had expressly declined to condemn an entire process of in-custody interrogation solely because of such conduct by the police. See Crooker v. California, 357 U. S. 433 (1958); Cicenia v. Lagay, 357 U. S. 504 (1958). Law enforcement agencies fairly relied on these prior cases, now no longer binding, in obtaining incriminating statements during the intervening years preceding Escobedo and Miranda. This is in favorable comparison to the situation before Mapp v. Ohio, 367 U. S. 643 (1961), where the States at least knew that they were constitutionally forbidden from engaging in unreasonable searches and seizures under Wolf v. Colorado, 338 U. S. 25 (1949).

At the same time, retroactive application of Escobedo and Miranda would seriously disrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards. Prior to Escobedo and Miranda, few States were under any enforced compulsion on account of local law to grant requests for the assistance of counsel or to advise accused persons of their privilege against self-incrimination. Compare Crooker v. California, 357 U. S., at 448, n. 4 (dissenting opinion). By comparison, Mapp v. Ohio, supra, was already the law in a majority of the States at the time it was rendered, and only six States were immediately affected by Griffin v. California, 380 U. S. 609 (1965). See Tehan v. Shott, 382 U. S., at 418.

In the light of these various considerations, we conclude that Escobedo and Miranda, like Mapp v. Ohio, supra, and Griffin v. California, supra, should not be applied retroactively. The question remains whether Escobedo and Miranda shall affect cases still on direct appeal when they were decided or whether their application shall commence with trials begun after the decision^ were announced. Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced. See 381 U. S., at 622 and n. 4; 382 U. S., at 409, n. 3. On the other hand, apart from the application of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue.

All of the reasons set forth above for making Escobedo and Miranda nonretroactive suggest that these decisions should apply only to trials begun after the decisions were announced. Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused. Prospective application only to trials begun after the standards were announced is particularly appropriate here. Authorities attempting to protect the privilege have not been apprised heretofore of the specific safeguards which are now obligatory. Consequently they have adopted devices which, although below the constitutional minimum, were not intentional evasions of the requirements of the privilege. In these circumstances, to upset all of the convictions still pending on direct appeal which were obtained in trials preceding Escobedo and Miranda would impose an unjustifiable burden on the administration of justice.

At the same time, we do not find any persuasive reason to extend Escobedo and Miranda to cases tried before those decisions were announced, even though the cases may still be on direct appeal. Our introductory discussion in Linkletter, and the cases cited therein, have made it clear that there are no jurisprudential or constitutional obstacles to the rule we are adopting here. See 381 U. S., at 622-629. In appropriate prior cases we have already applied new judicial standards in a wholly prospective manner. See England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 (1964); James v. United States, 366 U. S. 213 (1961). Nor have we been shown any reason why our rule is not a sound accommodation of the principles of Escobedo and Miranda.

In the light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced. We recognize that certain state courts have perceived the implications of Escobedo and have therefore anticipated our holding in Miranda. Of course, States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.

Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial,

“[where] the investigation is no longer a general inquiry into 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 . . . .” 378 U. S., at 490-491.

Because Escobedo is to be applied prospectively, this holding is available only to persons whose trials began after June 22, 1964, the date on which Escobedo was decided.

As for the standards laid down one week ago in Miranda,. if we were persuaded that they had been fully anticipated by the holding in Escobedo, we would measure their prospectivity from the same date. Defendants still to be tried at that time would be entitled to strict’ observance of constitutional doctrines already clearly foreshadowed. The disagreements among other courts concerning the implications of Escobedo, however, have impelled us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda, and these guidelines are therefore available only to persons whose trials had not begun as of June 13, 1966. See Tehan v. Shott, 382 U. S., at 409, n. 3, in relation to Malloy v. Hogan, 378 U. S. 1 (1964), and Griffin v. California, supra.

Petitioners challenge the validity of their convictions on several other grounds, all of which we have examined with great care, including the claim that their confessions were coerced. We conclude without unnecessary discussion that those grounds which may be tested on this review of the judgment of the New Jersey Supreme Court are without merit. We further find that petitioners’ contentions relating to the voluntariness of their confessions are beyond the scope of our review in this proceeding.

Petitioners’ coerced confession claim was fully litigated and rejected both at trial and in prior post-conviction hearings in the state courts. On neither occasion, however, did petitioners attempt to substantiate certain allegations made for the first time in the present proceeding. As stated above, petitioners now assert that they were prevented from obtaining outside assistance while they were being interrogated. The police allegedly refused them access to their families or a lawyer and also thwarted the efforts of their, relatives and friends to contact them. We have already pointed out that allegations of this kind are directly relevant to a coerced confession claim and that such a claim presents no problem of retroactivity. See also Davis v. North Carolina, post, p. 737.

The New Jersey Supreme Court invoked a state procedural rule, previously applied in another confession case, as a bar to reconsideration of petitioners’ coerced confession claim, even in the light of their new allegations regarding the denial of outside assistance; See N. J. Rev. Rules 3:10A-5 (1965 Supp.); State v. Smith, 43 N. J. 67, 202 A. 2d 669 (1964). This is an adequate state ground which precludes us from testing the coerced confession claim on the present review, whatever may be the significance of the state court’s reliance on its procedural rule in federal habeas corpus proceedings. See Fay v. Noia, 372 U. S. 391 (1963).

The judgment of the Supreme Court of New Jersey is

Affirmed.

Mr. Justice Clark concurs in the opinion and judgment of the Court. He adheres, however, to the views stated in his separate opinion in Miranda v. Arizona, ante, p. 499.

Mr. Justice Harlan, Mr. Justice Stewart, and Mr. Justice White concur in the opinion and judgment of the Court. They continue to believe, however, for the reasons stated in the dissenting opinions of Mr. Justice Harlan and Mr. Justice White in Miranda v. Arizona and its companion cases, ante, pp. 504, 526, that the new constitutional rules promulgated in those cases are both unjustified and unwise.

Mr. Justice Black, with whom Mr. Justice Douglas joins, dissents from the Court’s holding that the petitioners here are not entitled to the full protections of the Fifth and Sixth Amendments as this Court has construed them in Escobedo v. Illinois, 378 U. S. 478, and Miranda v. Arizona, ante, p. 436, for substantially the same reasons stated in his dissenting opinion in Linkletter v. Walker, 381 U. S. 618, at 640.

       “I am going to ask you some questions as to what you know about the hold-up, but before I ask you these questions it is my duty to warn you that everything you tell me must be of your own free will, must be the truth, without any promises or threats having been made to you, and knowing anything you tell me can be used against you, or any other person, at some future time.”

       The procedure prescribed by state law was outlined in the opinion below as follows:
      “Under the New Jersey procedure for the admission in evidence of a confession, the trial judge must first determine whether the confession was voluntary. If he finds the confession to be voluntary, and hence admissible, he instructs the jury to also consider the voluntariness of the confession and to disregard it unless the State proves it was voluntarily given.” 43 N. J. 572, 586, n. 9, 206 A. 2d 737, 744-745, n. 9.

       A third defendant, Wayne Godfrey, was also found guilty and sentenced to death. His conviction was subsequently overturned by a federal court in post-conviction proceedings. Upon retrial for felony murder, he pleaded non vult and was sentenced to life imprisonment.

        State v. Johnson, 31 N. J. 489, 158 A. 2d 11 (1960).

        State v. Johnson, 63 N. J. Super. 16, 163 A. 2d 593 (1960), aff’d, 34 N. J. 212, 168 A. 2d 1, cert. denied, 368 U. S. 933 (1961); United States ex rel. Johnson v. Yeager, 327 F. 2d 311 (C. A. 3d Cir.), cert. denied, 377 U. S. 984 (1964). See also State v. Johnson, 71 N. J. Super. 506, 177 A. 2d 312, aff’d, 37 N. J. 19, 179 A. 2d 1, cert. denied, 370 U. S. 928 (1962).

       43 N. J. 572, 206 A. 2d 737.

       Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956).

        Olmstead v. United States, 277 U. S. 438, 478 (1928) (dissenting opinion).

       Coerced confessions are, of course, inadmissible regardless of their alleged truth or falsity. See Rogers v. Richmond, 365 U. S. 534 (1961).

       It appears that every state supreme court and federal court of appeals which has discussed the question has declined to apply the tenets of Escobedo retroactively. For example, see In re Lopez, 62 Cal. 2d 368, 42 Cal. Rptr. 188, 398 P. 2d 380 (1965); Ruark v. People, — Colo. —, 405 P. 2d 751 (1965); Commonwealth v. Negri, 419 Pa. 117, 213 A. 2d 670 (1965); United States ex rel. Walden v. Pate, 350 F. 2d 240 (C. A. 7th Cir. 1965). The commentators, however, are divided on this issue. Compare Mishkin, The Supreme Court 1964 Term — Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56 (1965), which opposes retroactive application, with Comment, Linkletter, Shott, and the Retroactivity Problem in Escobedo, 64 Mich. L. Rev. 832 (1966).

       2 Hawkins, Pleas of the Crown 595 (8th ed. 1824).

       For example, compare People v. Dorado, 62 Cal. 2d 338, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965), and People v. Dufour, — R. I. —, 206 A. 2d 82 (1965), which construe Escobedo broadly with People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33 (1964) and Browne v. State, 24 Wis. 2d 491, 131 N. W. 2d 169 (1964).


source: Caselaw Access Project

author: Mr. Chief Justice Warren, Mr. Justice Clark,

license: Public Domain

text:
    DAVIS v. NORTH CAROLINA.
    No. 815.
    Argued April 28, 1966.
    Decided June 20, 1966.

      Charles V. Bell argued the cause for petitioner. With him on the brief were Walter B. Nivens and Calvin Brown.

      James F. Bullock, Assistant Attorney General of North Carolina, argued the cause for respondent. With him on the brief was T. W. Bruton, Attorney General.
   Opinion of the Court by

Mr. Chief Justice Warren,

announced by Mr. Justice Brennan.

Petitioner, Elmer Davis, Jr., was tried before a jury in the Superior Court of Mecklenburg County, North Carolina, on a charge of rape-murder. At trial, a written confession and testimony as to an oral confession were offered in evidence. Defense counsel objected on the ground that the confessions were involuntarily given. The trial judge heard testimony on this issue, ruled that the confessions were made voluntarily, and permitted them to be introduced in evidence. The jury returned a verdict of guilty without, a recommendation for life imprisonment, and Davis was sentenced to death.

The conviction was affirmed on appeal by the Supreme Court of North Carolina, 253 N. C. 86, 116 S. E. 2d 365, and this Court denied certiorari. 365 U. S. 855. Davis then sought a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. The writ was denied without an evidentiary hearing on the basis of the state court record. 196 F. Supp. 488. On appeal, the Court of Appeals for the Fourth Circuit reversed and remanded the case to the. District Court for an evidentiary hearing oh the issue of the voluntariness of Davis’ confessions. 310 F. 2d 904. A hearing was held in the District Court, following which the District Judge again held that the confessions were voluntary. 221 F. Supp. 494. The Court of Appeals for the Fourth Circuit, after argument and then resubmission en banc, affirmed with two judges dissenting. 339 F. 2d 770. We granted certiorari. 382 U. S. 953.

We are not called upon in this proceeding to pass on the guilt or innocence of the petitioner of the atrocious crime that was committed. Nor are we called upon to determine whether the confessions obtained are true or false. Rogers v. Richmond, 365 U. S. 534 (1961). The sole issue presented for review is whether the confessions were voluntarily given or were the result of overbearing by police authorities. Upon thorough review of the record, we have concluded that the confessions were not made freely and voluntarily but rather that Davis’ will was overborne by the sustained pressures upon him. Therefore, the confessions are constitutionally inadmissible and the judgment of the court below must be reversed.

Had the trial in this case before us come after our decision in Miranda v. Arizona, ante, p. 436, we would reverse summarily. Davis was taken into custody by Charlotte police and interrogated repeatedly over a period of 16 days. There is no indication in the record that police advised him of any of his rights until after he had confessed orally on the 16th day. This would be clearly improper under Miranda. Id., at 478-479, 492. Similarly, no waiver of rights could be inferred from this record since it shows only that Davis was repeatedly interrogated and that he denied the alleged offense prior to the time he finally confessed. Id., at 476, 499.

We have also held today, in Johnson v. New Jersey, ante, p. 719, that our decision in Miranda, delineating procedures to safeguard the Fifth Amendment privilege against self-incrimination during in-custody interrogation is to be applied prospectively only. Thus the present case may not be reversed solely on the ground that warnings were not given and waiver not shown. As we pointed out in Johnson, however, the nonretroactivity of the decision in Miranda does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo v. Illinois, 378 U. S. 478 (1964). This Court has undertaken to review the voluntariness of statements obtained by police in state cases since Brown v. Mississippi, 297 U. S. 278 (1936). The standard of voluntariness which has evolved in state cases under the Due Process Clause of the Fourteenth Amendment is the same general standard which applied in federal prosecutions — a standard grounded in the policies of the privilege against self-incrimination. Malloy v. Hogan, 378 U. S. 1, 6-8 (1964).

The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo and Miranda is not limited in any manner by these decisions. On the contrary, that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made. This factor has been recognized in several of our prior decisions dealing with standards of voluntariness. Haynes v. Washington, 373 U. S. 503, 510-511 (1963); Culombe v. Connecticut, 367 U. S. 568, 610 (1961); Turner v. Pennsylvania, 338 U. S. 62, 64 (1949). See also Gallegos v. Colorado, 370 U. S. 49, 54, 55 (1962). Thus, the fact that Davis was never effectively advised of his rights gives added weight to the other circumstances described below which made his confessions involuntary.

As is almost invariably so in cases involving confessions obtained through unobserved police interrogation, there is a conflict in the testimony as to the events surrounding the interrogations. Davis alleged that he was beaten, threatened, and cursed by police and that he was told he would get a hot bath and something to eat as soon as he signed a statement. This was flatly denied by each officer who testified. Davis further stated that he had repeatedly asked for a lawyer and that police refused to allow him to obtain one. This was also denied. Davis’ sister testified at the habeas corpus hearing that she twice came to the police station and asked to see him, but that each time police officers told her Davis was not having visitors. Police officers testified that, on the contrary, upon learning of Davis’ desire to see his sister, they went to her home to tell her Davis wanted to see her, but she informed them she was busy with her children. These factual allegations were resolved against Davis by the District Court and we need not review these specific findings here.

It is our duty in this case, however, as in all of our prior cases dealing with the question whether a confession was involuntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness. E. g., Haynes v. Washington, 373 U. S. 503, 515-516 (1963); Blackburn v. Alabama, 361 U. S. 199, 205 (1960); Ashcraft v. Tennessee, 322 U. S. 143, 147-148 (1944). Wholly apart from the disputed facts, a statement of the case from facts established in the record, in our view, leads plainly to the conclusion that the confessions were the product of a will overborne.

Elmer Davis is an impoverished Negro with a third or fourth grade education. His level of intelligence is such that it prompted the comment by the court below, even while deciding against him on his claim of involuntariness, that there is a moral question whether a person of Davis’ mentality should be executed. Police first came in contact with Davis while he was a child when his mother, murdered his father, and thereafter knew him through his long criminal record, beginning with a prison term he served at the age of 15 or 16.

In September 1959, Davis escaped from a state prison camp near Asheville, North Carolina, where he was serving sentences of 17 to 25 years. On September 20, 1959, Mrs. Foy Belle Cooper was raped and murdered in the Elmwood Cemetery in the City of Charlotte, North Carolina. On September 21, police in a neighboring county arrested Davis in Belmont, 12 miles from Charlotte. He was wearing civilian clothes and had in his possession women’s undergarments and a billfold with identification papers of one Bishel Burén Hayes. Hayes testified at trial that his billfold and shoes had been taken from him while he lay in a drunken sleep near the Elmwood Cemetery on September 20.

Charlotte police learned of Davis’ arrest and contacted the warden of the state prison to get permission to take Davis into their custody in connection with the Cooper murder and other felonies. Having obtained permission, they took Davis from Belmont authorities and brought him to the detective headquarters in Charlotte. From the testimony of the officers, it is beyond dispute that the reason for securing Davis was their suspicion that he had committed the murder.

The second and third floors of the detective headquarters building contain lockup cells used for detention overnight and occasionally for slightly longer periods. It has no kitchen facilities for preparing meals. The cell in which Davis was placed measures 6 by 10 feet and contains a solid steel bunk with mattress, a drinking fountain, and a commode. It is located on the inside of the building with no view of daylight. It is ventilated by two exhaust fans located in the ceiling of the top floor of the building. Despite the fact that a county jail equipped and used for lengthy detention is located directly across the street from detective headquarters, Davis was incarcerated in this cell on an upper floor of the building for the entire period until he confessed. Police Chief Jesse James testified: “I don’t know anybody who has stayed in the city jail as long as this boy.”

When Davis arrived at the detective headquarters, an arrest sheet was prepared giving various statistics concerning him. On this arrest sheet was typed the following illuminating directive: “HOLD FOR HUCKS & FES-PERMAN RE-MRS. COOPER. ESCAPEE FROM HAYWOOD COUNTY STILL HAS 15 YEARS TO PULL. DO NOT ALLOW ANYONE TO SEE DAVIS. OR ALLOW HIM TO USE TELEPHONE.” Both at trial and at the habeas corpus hearing the testimony of police officers on this notation was nearly uniform. Each officer testified that he did not put that directive on the arrest sheet, that he did not know who did, and that he never knew of it. The police captain first testified at trial that there had never been an order issued in the police department that Davis was not to see or talk to anybody. He cited as an example the fact that Davis’ sister came to see him (after Davis had confessed). He testified later in the trial, however:

“I don’t know, it is possible I could have ordered this boy to be held without privilege of communicating with his friends, relatives and held without the privilege of using the telephone or without the privilege of talking to anybody. . . . No, I did not want him to talk to anybody. For the simple reason he was an escaped convict and it is the rules and regulations of the penal system that if he is a C grade prisoner he is not permitted to see anyone alone or write anyone letters and I was trying to conform to the state regulations.”

The District Court found as a fact that from September 21 until after he confessed on October 6, neither friend nor relative saw Davis. It concluded, however, that Davis was not held incommunicado because he would have been permitted visitors had anyone requested to see him. In so finding, the District Court noted specifically the testimony that police officers contacted Davis’ sister for him. But the court made no mention whatever of the notation on the arrest sheet or the testimony of the police captain.

The stark wording of the arrest sheet directive remains, as does Captain McCall’s testimony. The denials and evasive testimony of the other officers cannot wipe this evidence from the record. Even accepting that police would have allowed a person to see Davis had anyone actually come, the directive stands unassailably as an indicium of the purpose of the police in holding Davis. As the dissenting judges below stated: “The instruction not to permit anyone access to Davis and not to allow him to communicate with the outside world can mean only that it was the determination of his custodians to keep him under absolute control where they could subject him to questioning at will in the manner and to the extent they saw fit, until he would confess.” 339 F. 2d, at 780. Moreover, the uncontested fact that no one other than the police spoke to Davis during the 16 days of detention and interrogation that preceded his confessions is significant in the determination of voluntariness.

During the time Davis was held by Charlotte police, he was fed two sandwiches, described by one officer as “thin” and “dry,” twice a day. This fare was occasionally supplemented with peanuts and other “stuff” such as cigarettes brought to him by a police officer. The District Court found that the food was the same served prisoners held overnight in the detention jail and that there was no attempt by police to weaken Davis by inadequate feeding. The State contends that “two sandwiches twice a day supplemented by peanuts ‘and other stuff’ was not such a poor diet, for an idle person doing no work, as to constitute a violation of due process of law.” Brief for Respondent, p. 7.

We may readily agree that the record does not show any deliberate attempt to starve Davis, compare Payne v. Arkansas, 356 U. S. 560 (1958), arid that his diet was not below a minimum necessary to sustain him. Nonetheless, the diet was extremely limited and may well have had a significant effect on Davis’ physical strength and therefore his ability to resist. There is evidence in the record, not rebutted by the State, that Davis lost 15 pounds during the period of detention.

From the time Davis was first brought to the overnight lockup in Charlotte on September 21, 1959, until he confessed on the 16th day of detention, police officers conducted daily interrogation sessions with him in a special interrogation room in the building. These sessions each lasted “forty-five minutes or an hour or maybe a little more,” according to one of the interrogating officers. Captain McCall testified that he had assigned his entire force of 26 to 29 men to investigate the case. From this group, Detectives Hucks and Fesperman had primary responsibility for interrogating Davis. These officers testified to interrogating him once or twice each day throughout the 16 days. Three other officers testified that they conducted several interrogation sessions at the request of Hucks and Fesperman. Although the officers denied that Davis was interrogated at night, one testified that the interrogation periods he directed were held some time prior to 11 p. m. Captain McCall also interrogated Davis once.

According to each of the officers, no mention of the Cooper murder was made in any of the interrogations between September 21 and October 3. Between these dates they interrogated Davis extensively with respect to the stolen goods in his possession. It is clear from the record, however, that these interrogations were directly related to the murder and were not simply questioning as to unrelated felonies. The express purpose of this line of questioning was to break down Davis' alibis as to where he had obtained the articles. By destroying Davis’ contention that he had taken the items from homes some distance from Charlotte, Davis could be placed at the scene of the crime.

In order to put pressure on Davis with respect to these alibis, police took him from the lockup on October 1 to have him point out where he had stolen the goods. Davis had told the officers that he took the items from houses along the railroad line between Canton and Asheville. To disprove this story, Davis was aroused at 5 a. m. and driven to Canton. There his leg shackles were removed and he walked on the railroad tracks, handcuffed to an officer, 14 miles to Asheville. When Davis was unable to recognize any landmark along the way or any house that he had burglarized, an officer confronted him with the accusation that his story was a lie. The State points out that Davis was well fed on this day, that he agreed to make the hike, and contends that it was not so physically exhausting as to be coercive. The coercive influence was not, however, simply the physical exertion of the march, but also the avowed purpose of that trek— to break down his alibis to the crime of murder.

On the afternoon of October 3, two officers planned and carried out a ruse to attempt to get Davis to incriminate himself in some manner. They engaged Davis in idle conversation for 10 to 20 minutes and then inquired whether he would like to go out for “some fresh air.” They then took Davis from the jail and drove him into the cemetery to the scene of the crime in order to observe his reaction.

The purpose of these excursions and of all of the interrogation sessions was known to Davis. On the day of the drive to the cemetery, the interrogators shifted tactics and began questioning Davis specifically about the murder. They asked him if he knew why he was being held. He stated that he believed it was with respect to the Cooper murder. Police then pressed him, asking, “Well, did you do it?" He denied it. The interrogation sessions continued through the next two days. Davis consistently denied any knowledge of the crime.

On October 6, Detectives Hucks and Fesperman interrogated Davis for the final time. Lieutenant Sykes, who had known Davis’ family, but who had not taken part in any of the prior interrogation sessions because he had been away on vacation, asked to sit in. During this interrogation, after repeated earlier denials of guilt, Davis refused to answer questions concerning the crime. At about 12:45 p. m., Lieutenant Sykes inquired of Davis if he would like to talk to any of the officers alone about Mrs. Cooper. Davis said he would like to talk to Sykes. The others left the room. Lieutenant Sykes then asked Davis if he had been reading a testament which he was holding. Davis replied that he had. Sykes asked Davis if he had been praying. Davis replied that he did not know how to pray and agreed he would like Sykes to pray for him. The lieutenant offered a short prayer. At that point, as the dissent below aptly put it, the prayers of the police officer were answered — Davis confessed. He was driven to the cemetery and asked to re-enact the crime. Police then brought him back to the station where he repeated the confession to several of the officers. In the presence of six officers, a two-page statement of the confession Davis had made was transcribed. Although based on the information Davis had given earlier, Captain McCall dictated this statement employing his own choice of format, wording, and content. He paused periodically to ask Davis if he agreed with the statement so far. Each time Davis acquiesced. Davis signed the statement. Captain McCall then contacted the press and stated, “He finally broke down today.”

The concluding paragraphs of this confession, dictated by the police, contain, along with the standard disclaimer that the confession was free and voluntary, a statement that unwittingly summarizes the coercive effect on Davis of the prolonged period of detention and interrogation. They read:

“In closing, I want to say this. I have known in my own mind that [sic] you people were holding me for, and all the time I have been lying in jail, it has been worrying me, and I knew that sooner or later, I would have to tell you about it.
“I have made this statement freely and voluntarily. Captain McCall has dictated this statement in the presence of Detectives W. F. Hucks, E. F. Fesperman, H. C. Gardner, C. E. Davis, and Detective Lieutenant C. L. Sykes. I am glad it is over, because I have been going thru a big strain.”

The facts established on the record demonstrate that Davis went through a prolonged period in which substantial coercive influences were brought to bear upon him to extort the confessions that marked the culmination of police efforts. Evidence of extended interrogation in such a coercive atmosphere has often resulted in a finding of involuntariness by this Court. E. g., Culombe v. Connecticut, 367 U. S. 568 (1961); Fikes v. Alabama, 352 U. S. 191 (1957); Turner v. Pennsylvania, 338 U. S. 62 (1949). We have never sustained the use of a confession obtained after such a lengthy period of detention and interrogation as was involved in this case.

The fact that each individual interrogation session was of relatively short duration does not mitigate the substantial coercive effect create'd by repeated interrogation in these surroundings over 16 days. So far as Davis could have known, the interrogation in the overnight lockup might still be going on today had he not confessed. Moreover, as we have noted above, the fact that police did not directly accuse him of the crime until after a substantial period of eroding his will to resist by a tangential line of interrogation did not reduce the coercive influence brought to bear upon him. Similarly, it is irrelevant to the consideration of voluntariness that Davis was an escapee from a prison camp. Of course Davis was not entitled to be released. But this does not alleviate the coercive effect of his extended detention and repeated interrogation while isolated from everyone but the police in the police jail.

In light of all of the factors discussed above, the conclusion is inevitable — Davis’ confessions were the involuntary end product of coercive influences and are thus constitutionally inadmissible in evidence. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit must be reversed and the case remanded to the District Court. On remand, the District Court should enter such orders as are appropriate and consistent with this opinion, allowing the State a reasonable time in which to retry petitioner.

Reversed and remanded.

Mr. Justice Black concurs in the result.

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, ante, p. 436, 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, ante, p. 719. 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 (1961); Fikes v. Alabama, 352 U. S. 191 (1957); and Turner v. Pennsylvania, 338 U. S. 62 (1949), all of which were treated in terms of due process. But these cases are clearly distinguishable on their facts with re-speet 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 had 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.

       The written confession which Davis subsequently signed contained a notation that he was advised he did not have to make a statement and that any statement made could be used for or against him in court. A police officer testified at trial that he told Davis if the statement was not the truth he did not have to sign it.

       The State adds in its brief: “Surely, Davis was not such a sensitive person, after all his years in prison, that ‘cussing’ and being called ‘Nigger’ constituted any degree of fear or coercion.” Brief for Respondent, p. 8.

       Some of the officers testified that they had no idea why Davis was being brought to Charlotte except as an escapee or in relation to the stolen goods in his possession. Captain McCall, who was in charge of the entire detective division of the Charlotte Police, stated at trial, however: “He was brought over here for the purpose of being an escaped convict and as a likely suspect in the murder case .... We were not holding him for the State when he was in Gaston County jail, but were making an investigation in reference to our murder case.” At the habeas corpus hearing, he testified: “[H]e was in our custody primarily because he was a suspect in Mrs. Cooper’s case . . . .” Davis’ prior offenses included an assault in the vicinity of the cemetery, and his home had been nearby. See also note 9, infra.

       The only exception to this incarceration was a day spent near Asheville, described infra, and a night in the Asheville jail.

       Transcript of Evidence on Appeal. His testimony at the habeas corpus hearing was very similar. He first stated somewhat confusingly:
      “Inasmuch as he was an escaped convict, I would have asked them what was the purpose of placing this do not allow anyone to see Davis or allow him to use the telephone. To be perfectly honest with you, why put it in writing when you can do the same thing verbally. I mean there is no question about it. The question is that each individual is allowed due process of law. And if they had been asked in any way or if I had been asked for anyone to see Elmer, they would have been given permission. Nobody asked to my knowledge.”
      He later testified:
      “I didn’t want anybody to talk to him without me knowing it as he was a prisoner of the State of North Carolina, and he was a C grade prisoner and not entitled to visitors without the permission of the warden.”

       During the 16-day period, this diet varied only for two meals on the day he was taken to Asheville and on one other occasion when an officer brought him two hamburgers.

       As the Police Chief explained: “An interrogation room should be void of all materials so that you can talk to a man in complete quiet and keep his attention.”

       After the officer admitted that the sessions might have been up to 11 p. m., the following question was posed and answered:
      “Q. Well, he could have been interrogated by you at night, couldn’t he?
      “A. I’ll say no and I’ll say yes.”
      Another officer testified as follows:
      “Q. At the time you interrogated him up in the Police Department, was it daylight or dark?
      “A. Well, it could have been both, if I remember correctly. I’ll just leave it that way: it could have been both, because that’s the way it is.”

       Further graphic evidence of the obvious purpose of the police in detaining and repeatedly interrogating Davis is found in statements made to the press during this period:
      “Detective Capt. W. A. McCall said Davis had not implicated himself in the Sunday slaying.
      “ ‘We’re still talking to him,’ he said.” Charlotte Observer, Sept. 23, 1959, B-l.
      “A Negro man was seen crouching in the bushes at Elmwood Cemetery shortly before the rape-slaying of an elderly widow there Sunday afternoon, Charlotte detectives said Wednesday.
      “Charlotte detectives . . . continued interrogating E. J. Davis, the escapee who was arrested in Belmont Monday night.
      “ ‘We questioned him twice today,’ Capt. McCall said Wednesday night. ‘He has given us some conflicting information, and we’re checking all his alibis.’
      “ ‘We’ll give him a lie detector test if necessary. But so far we have had no positive results from our interrogation.’” Charlotte Observer, Sept. 24, 1959, B-l.
      “ ‘Everybody . . . everybody is a suspect in this case until we sign a murder warrant.’
      “Detective Capt. W. A. McCall spoke these words Thursday as police continued their search for the man who killed and raped a 78-year-old widow in a local graveyard Sunday afternoon.
      “But the main emphasis Thursday continued to be on E. J. Davis, a 32ryear-old Negro prison escapee who was convicted of raping an elderly woman here in 1949.
      “Davis was questioned at length Thursday for the third straight day.
      “ ‘We know he’s telling us some lies,’ Capt. McCall said. ‘We’re checking every alibi and every story he gives us, and some of them just aren’t true.
      “ ‘We don’t have enough facts yet to give him a lie detector test, though.’ ” Charlotte Observer, Sept. 25, 1959, B-l.
      “Being questioned presently in connection with the slaying of 78-year-old Mrs. Foy Belle Cooper is E. J. Davis, a 32-year-old Negro escapee who was arrested Monday in Belmont. Davis has a prior record for rape in 1949.” Charlotte Observer, Sept. 26, 1959, B-l.
      “Charlotte detectives concentrated Monday on a 32-year-old escaped convict in an effort to find who raped and murdered a 78-year-old widow here a week ago.
      “Davis has been questioned closely several times in connection with the rape-slaying of Mrs. Foy Belle Cooper, 78.” Charlotte Observer, Sept. 29, 1959, 14-A.
      “City detectives were still probing a man’s alibis for loopholes Friday in an investigation into the rape-slaying of a 78-year-old white woman in Charlotte Sept. 20.
      “The suspect is an escaped convict, E. J. Davis. . . .” Charlotte Observer, Oct. 3, 1959, B-l.

       Although the District Court found that police did not interrogate Davis directly about the Cooper case until October 3, the testimony was not uniform on this point. There is testimony in the record by police officers that the first interrogation about the murder was on the Friday before he confessed — October 2, 1959. See 253 N. C. 86, 90, 116 S. E. 2d 365, 367. See also Charlotte Observer, Oct. 7, 1959, A-1, Oct. 8, 1959, B-1.

       Although the record does not show the tenor of the interrogation on October 4, it is established that Davis was interrogated every day and that he denied any connection with the crime until October 6.

       After Davis signed the written confession, Police Chief Jesse James appeared to question Davis about his treatment. In response to this questioning, Davis stated that he had been treated all right. The following morning, a minister who knew Davis’ family and had read of his arrest 16 days earlier in the newspaper, appeared to talk to Davis. He testified that Davis told him his treatment had been very fine and that everyone had been courteous and kind to him. The minister indicated further that he often cooperated with police in such matters.

       Charlotte Observer, Oct. 7, 1959, A-l-2.

      On the morning that Davis left the jail to walk along the railroad tracks, a police officer asked him “if he was hungry,” and his natural reply at that time of day was “yes.” The officer then gave Davis breakfast.