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decided: April 2, 1969.



Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall; Fortas took no part in the consideration or decision of this case.

Author: Stewart

[ 394 U.S. Page 478]

 MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was convicted in the Circuit Court of Morgan County, Alabama, of first-degree murder, and

[ 394 U.S. Page 479]

     was sentenced to death in accordance with the verdict of the jury. After the Alabama Supreme Court affirmed the conviction, 278 Ala. 437, 179 So. 2d 20, the petitioner instituted this habeas corpus proceeding in the United States District Court for the Middle District of Alabama. District Judge Frank M. Johnson, Jr., denied relief, 257 F.Supp. 1013, and the Court of Appeals for the Fifth Circuit affirmed. 385 F.2d 102, rehearing denied, 393 F.2d 932, 395 F.2d 169. We granted certiorari. 393 U.S. 822.


Although there was substantial additional evidence of the petitioner's guilt, his conviction was based in part on a confession he had made some days after his arrest. His request for habeas corpus relief rested on a claim that the introduction of that confession into evidence violated his rights under the Constitution.*fn1 Since his

[ 394 U.S. Page 480]

     trial antedated our decisions in Escobedo v. Illinois, 378 U.S. 478, and Miranda v. Arizona, 384 U.S. 436, that claim is essentially a contention that under the constitutional standards prevailing prior to those decisions, his confession was made involuntarily. See Johnson v. New Jersey, 384 U.S. 719; Davis v. North Carolina, 384 U.S. 737.

After holding a full hearing regarding the issue and considering the state court record, the District Court, in an opinion applying the proper constitutional standards, was unable to conclude that the petitioner's confession was "other than voluntarily made." The confession, the court found, "simply was not coerced." 257 F.Supp., at 1017, 1016. The Court of Appeals, likewise applying appropriate standards, similarly could "find from the record here no plausible suggestion that Boulden's will was overborne . . . ." 385 F.2d, at 107.*fn2

Little purpose would be served by an extensive summation of the record in the District Court proceedings and in the state trial court. The question whether a confession was voluntarily made necessarily turns on the "totality of the circumstances"*fn3 in any particular case, and most of the relevant circumstances surrounding the petitioner's confession are set out in the opinions of the District Court and the Court of Appeals. Suffice it to say that we have made an independent study of the entire record*fn4 and have determined that, although the

[ 394 U.S. Page 481]

     issue is a relatively close one, the conclusion reached by the District Court and the Court of Appeals was justified.


In seeking habeas corpus the petitioner challenged only the admission of his confession into evidence, and his petition for certiorari was limited to that claim. In his brief and in oral argument on the merits, however, he has raised a substantial additional question: whether the jury that sentenced him to death was selected in accordance with the principles underlying our decision last Term in Witherspoon v. Illinois, 391 U.S. 510.

We held in Witherspoon that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S., at 522. In the present case, the record indicates that no less than 15 prospective jurors were excluded by the prosecution under an Alabama statute that provides:

"On the trial for any offense which may be punished capitally, . . . it is a good cause of challenge by the state that the person has a fixed opinion against capital . . . punishmen[t] . . . ."*fn5

That statutory standard has been construed by the Alabama Supreme Court to authorize the exclusion of potential jurors who, although "opposed to capital punishment, . . . would hang some men." Untreinor v. State, 146 Ala. 26, 33, 41 So. 285, 287.

However, as we emphasized in Witherspoon, "The critical question . . . is not how the phrases employed in this area have been construed by courts and commentators.

[ 394 U.S. Page 482]

     What matters is how they might be understood -- or misunderstood -- by prospective jurors." 391 U.S., at 516, n. 9. "The most that can be demanded of a venireman in this regard," we said, "is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out . . . ." Id., at 522, n. 21. We made it clear that "unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." Id., at 516, n. 9.

It appears that at the petitioner's trial two prospective jurors were excluded only after they had acknowledged that they would "never" be willing to impose the death penalty.*fn6 Eleven veniremen, however, appear to have been excused for cause simply on the basis of their affirmative

[ 394 U.S. Page 483]

     answers to the question whether, in the statutory language, they had "a fixed opinion against" capital punishment. The following excerpt from the record is typical of those instances:

"THE COURT: Do you have a fixed opinion against capital punishment?

"MR. SEIBERT: Yes, sir.

"MR. HUNDLEY: We challenge.

"THE COURT: Defendant?

"MR. CHENAULT: No questions.

"THE COURT: Stand aside. You are excused."

Two other veniremen seem to have been excluded merely by virtue of their statements that they did not "believe in" capital punishment.*fn7 Yet it is entirely possible that

[ 394 U.S. Page 484]

     a person who has "a fixed opinion against" or who does not "believe in" capital punishment might nevertheless be perfectly able as a juror to abide by existing law -- to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.

It appears, therefore, that the sentence of death imposed upon the petitioner cannot constitutionally stand under Witherspoon v. Illinois. We do not, however, finally decide that question here, for several reasons. First, the Witherspoon issue was not raised in the District Court, in the Court of Appeals,*fn8 or in the petition for certiorari filed in this Court. A further hearing directed to the issue might conceivably modify in some fashion the conclusion so strongly suggested by the record now before us. Further, it is not clear whether the petitioner has exhausted his state remedies with respect to this issue. Finally, in the event it turns out, as now appears, that relief from this death sentence must be ordered, a local federal court will be far better equipped than are we to frame an appropriate decree with due regard to available Alabama procedures.

Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court,

[ 394 U.S. Page 485]

     where the issue that has belatedly been brought to our attention may be properly and fully considered.

It is so ordered.

MR. JUSTICE BLACK, while still adhering to his dissent in Witherspoon v. Illinois, 391 U.S. 510, 532, acquiesces in the Court's judgment and opinion.

MR. JUSTICE FORTAS took no part in the consideration or decision of this case.


385 F.2d 102, vacated and remanded.

MR. JUSTICE HARLAN, whom THE CHIEF JUSTICE and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part.

I agree that the case must be remanded to the District Court for a determination of the Witherspoon question, and I therefore join in Part II of the Court's opinion. However, I believe that on remand the District Court should also consider an aspect of petitioner's coerced confession claim which the opinions in the two courts below completely ignore, and to which this Court pays only passing attention.

The Court states that "two confessions were in fact obtained, although only the second was actually introduced into evidence." Ante, at 479, n. 1. The first of these was obtained during several hours of interrogation in the Limestone County jail on the night of petitioner's arrest, May 1, 1964. The second was obtained during petitioner's re-enactment of the crime on May 6. The courts below examined the circumstances in which both confessions were obtained, and concluded that both were voluntary. In my opinion this does not exhaust the coerced confession issue.

As the Court is compelled to recognize, petitioner made inculpatory statements on, not two, but three different occasions. The first of these was on the afternoon

[ 394 U.S. Page 486]

     of May 1, preceding the interrogation at the jail.*fn1 On that afternoon, petitioner was apprehended by law enforcement officers near the scene of the crime. According to petitioner, an officer of the Highway Patrol approached him and asked his name:

"I told him; then he told me to run because he had been wanting to kill him a nigger a long time . . . . He told me to run, and then he throwed the rifle up like he was getting ready to shoot there." Record Transcript 539-540.

Petitioner was taken to the scene of the crime, where he was placed, in handcuffs, in a police car alone with Highway Patrol Captain Williams. He was not given any of the Miranda warnings.*fn2 As petitioner related:

"Captain Williams asked me what had happened, and I started to tell him; he cussed me and told

[ 394 U.S. Page 487]

     me it wasn't . . . . I told Captain Williams I didn't do it, and he told me that I did . . . and he told me I was lying again. And he got mad and start cussing. . . . Well, he called me a little bastard and few more names . . . . Then he told me about if I didn't confess, that the officers that was wanting to kill me, he wasn't going to stop them. . . . I told him if he would get me out of there and wouldn't let them bother me, I would confess."

Later, two other officers got into the back of the car. One of them "asked me how old I was, and I told him, and he told me I was old enough to die." Record Transcript 544.

There were about 15 or 20 officers at the scene, some of whom were armed with rifles and shotguns. Captain Williams testified that a "pretty good size crowd" was gathering -- "I would say, in my best judgment, twenty-five or thirty cars . . . and people milling around out in the road." Record Transcript 647-648. It was under these circumstances that petitioner first admitted to Captain Williams that he had committed the crime.

Apparently because of the hostile crowd, petitioner was finally carried away from the area in a convoy of three cars; he was taken to a jail in another county as a precautionary measure. Thereafter he made what the courts have treated as the "first" confession.

The District Court was not, of course, obliged to credit petitioner's testimony concerning the officers' threats -- some of which, but by no means all, was controverted by respondent's witnesses. But the court did not even address itself to the testimony. Indeed, except for the oblique statement that "there was no evidence . . . that the protection afforded Boulden on this occasion was inadequate," 257 F.Supp. 1013, 1014 (1966); 385 F.2d 102, 104 (1967), neither of the courts below alluded to, let alone examined, the circumstances or the factual and

[ 394 U.S. Page 488]

     legal consequences of the events occurring on the afternoon of May 1, 1964.*fn3

Without speculating as to the possible explanations for this disturbing lacuna in the opinions below, I would broaden the remand of this case so as to allow the District Court to consider whether petitioner was subjected to improper coercion on the afternoon of May 1, and what effect the events of that afternoon had on the voluntariness of the confession introduced into evidence at petitioner's trial. See Darwin v. Connecticut, 391 U.S. 346 (1968); id., at 350 (separate opinion).

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