452 F.

2d 860

Karl G. EISEN, Petitioner, Appellant,

v.
Philip J. PICARD, Respondent, Appellee.
No. 71-1217.

United States Court of Appeals,

First Circuit.
Heard Oct. 4, 1971.
Decided Dec. 14, 1971.

Alexander Whiteside, II, Boston, Mass., for appellant.

Bernard Manning, Asst. Atty. Gen., with whom Robert H. Quinn, Atty.
Gen. and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Criminal Division,
were on brief, for appellee.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit
Judges.
McENTEE, Circuit Judge.

Defendant appeals from the denial, without a hearing, of his petition for a writ
of habeas corpus. He was convicted in the Superior Court of Massachusetts of
murder in the first degree by extreme atrocity and cruelty.1 The jury
recommended that the death penalty not be imposed. The Supreme Judicial
Court affirmed the conviction. Commonwealth v. Eisen, Mass., 267 N.E.2d 229
(1971).

At trial the evidence showed that Margot Eisen, defendant's wife, died of a
single axe blow to the head and that Gabrielle, his daughter, died of multiple
blows to the head. Their bodies were discovered on the morning of November
4, 1966. Expert testimony placed the time of death between the evenings of
November 2 and 3, or perhaps as early as the evening of November 1. Prior to
the discovery of the bodies on November 4 the defendant was seen going into
his house and leaving after a brief stay. On November 5 he approached two
hunters in the Connecticut woods, saying "Help, help. Shoot me. I killed my

wife and daughter. Call the police." At that time he appeared nauseated and was
wearing a red blanket over his head. The Connecticut State Police were called
and when they arrived on the scene, defendant made further incriminating
statements. He seemed very distraught, nervous, sick, appeared to have vomited
and defecated on his clothing and was at times incoherent. He was taken into
custody and on November 7 was committed to Bridgewater State Hospital
where he was subsequently found incompetent to stand trial. More than a year
later he was declared competent and his trial commenced in April 1968.
3

At trial one Marcia Reid testified that at about 11:30 on the morning of
November 4 she received a telephone call from the defendant who said, "This
is Karl," and asked her to call the police. He did not sound excited or disturbed.
Mrs. Reid then turned the telephone over to her husband, Kenneth, who
testified over objection that the defendant told him "that he had done something
terrible; that his wife and daughter were dead at home in Kingston, but he
couldn't go through with it with the other children. He had them locked in a
motel room." Over similar objection a Margaret Bernardo testified that on the
same morning the defendant telephoned her and said that his wife and daughter
had been dead at home for two days and that he was in Canada with three of the
children. He asked, "What shall I do?"

Chief Goonan of the Kingston police stated over objection that on November 5
while in custody the defendant said to him and several other policemen, "I
know I haven't got to say anything, but I got to say this. How can you people be
so nice to me after what I have done?"2 Somewhat similar incriminating
statements made to other officers at the time of defendant's arrest were admitted
without objection. Detective Sanga of the Connecticut State Police testified that
on Saturday, November 5, he was called to a state forest in Connecticut. There
he asked the defendant if he was Karl Eisen who was wanted by the
Massachusetts police authorities, and the defendant replied, "Yes I am, I did it, I
did it, I did it." Another State police officer who accompanied Detective Sanga
testified to the same effect.

The defense was based on insanity. The defendant took the witness stand and
stated as follows: on Wednesday, November 2, he did not eat all day; late in the
evening he had two small glasses of cognac and a bottle of beer and a sip from
a second bottle of beer; he did not feel well-was sick to his stomach; arrived
home about 10 or 10:30 p. m.; felt miserable and went to bed. The ceiling
seemed to be turning. During the night he heard somebody crying. He could not
awaken his wife; she did not move. He went upstairs to his sons' room and
tucked them in bed. The next thing he remembered was awakening in broad
daylight, kneeling by his son Dean's bed. Then he went downstairs and saw that

his wife was dead. He covered her face with a pillow, went upstairs and saw
that his daughter was dead and placed a bureau in front of the door to her room.
The defendant woke up his other children and drove off with them. His memory
of the events between November 3 and 5 was very incomplete, and he
maintained that he had no further recollection of the events of the night of
November 2. Defendant's medical expert testified that he was insane on the
date of the crime.
6

At the close of the defendant's direct testimony, his attorney moved to strike all
inculpatory statements made by the defendant, oral or written. This motion was
predicated on the testimony of the medical experts that the defendant was
insane at the time these statements were made. The motion was denied.

In this petition two issues arise from defendant's claim of insanity: whether his
in-custody statements were voluntary and whether his noncustodial inculpatory
statements were competent.3 A review of the expert testimony on defendant's
mental condition is a prerequisite to any consideration of these issues.
Dr. Mezer, defendant's expert, testified:

8
"[Defendant's]
psychotic-depressive reaction began some time between March 21,
1966, when Mr. Eisen's wife took an overdose of barbiturates in a suicidal attempt. It
was after that period of time; during the period of time when she was in the hospital.
9". . . .
10 was during this period of time that Mr. Eisen's depression began, because he had
"It
to take care of the children, and wasn't able to concentrate on his work; and the bills
piled up. So, that's really the beginning of the depression."
11

Dr. Allen, the state's medical expert, conceded that the defendant was insane
and incompetent on November 7. Despite some initial reluctance to do so, he
further stated that in his opinion the defendant was mentally ill and no longer
rational on November 3.

12

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)
requires a trial court to rule that statements to police officers were voluntarily
made before they are submitted to the jury. The court's "conclusion that the
confession is voluntary must appear from the record with unmistakable clarity."
Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967).
There is substantial doubt in the instant case that the trial court applied a proper
test in determining the voluntariness of custodial statements to police officers.

The court appears to have used the same standard for all its rulings on the
admissibility of defendant's inculpatory statements.4 While it considered it
relevant that there were no threats, pressure, or suggestions by police officers,
the court failed to take into account that the defendant's insanity may have
deprived him of his freedom of choice, the essence of his ability to make a
voluntary confession. Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4
L.Ed.2d 242 (1960). In ruling on the motion to strike, the court had before it
substantial evidence of defendant's insanity at the time of his custodial
inculpatory statements. Yet neither in its ruling on this motion5 nor in its charge
to the jury6 did the court appear to recognize that insanity relates to the issue of
volition as well as to the issue of competence.
13

Commonwealth v. Zelenski, 287 Mass. 125, 191 N.E. 355 (1934), on which
both the trial and the appellate courts relied, stands for the proposition that "it
was for the jury to determine upon all the evidence whether 'the mental
infirmities of the defendant deprived him of the faculty of consciousness of the
physical acts performed by him, of the power to retain them in his memory, and
of the capacity to make a statement of those acts with reasonable accuracy. An
insane person is not necessarily an incompetent witness."' Commonwealth v.
Eisen, supra (citation omitted). Competency, not voluntariness, was at issue in
Zelenski. Thus a finding of voluntariness using a test for determining
competency is not adequate because it does not take account of the possible
absence of free will. In discussing whether a confession is the product of a
man's free will, the court said in Pea v. United States, 130 U.S.App.D.C. 410,
397 F.2d 627, aff'd on rehearing, 397 F.2d 627 (1968) (en banc):

14 make-up of a free man includes his mechanisms for self-preservation, to refrain

"The
from speech that may endanger him. If he does speak out his statement is admissible
as the reflection of his free will if his selfpreservation mechanism, and its impetus to
silence, is overridden by pressures within his own personality, by his own
conscience, religious feelings, sense of duty, etc. But his statement does not reflect
his own free will or intellect if his statement is attributable in critical measure to the
fact that his self-protective mechanism is negated or overridden by external force or
fraud, a condition of insanity, the compulsion of drugs." Id. at 634. (Emphasis
added.)
15

Since it is clear that insanity may deprive a man of his ability to make a
voluntary confession, Blackburn v. Alabama, supra, the failure of the trial court
here to clearly consider whether defendant's confessions to the police officers
subsequent to his arrest were the product of a rational intellect requires a
reversal. In Blackburn the Court said:

16 the case at bar, the evidence indisputably establishes the strongest probability
"In
that Blackburn was insane and incompetent at the time he allegedly confessed.
Surely in the present stage of our civilization a most basic sense of justice is
affronted by the spectacle of incarcerating a human being upon the basis of a
statement he made while insane; and this judgment can without difficulty be
articulated in terms of the unreliability of the confession, the lack of rational choice
of the accused, or simply a strong conviction that our system of law enforcement
should not operate so as to take advantage of a person in this fashion." Id., at 207, 80
S.Ct. at 280.
17

Although the foregoing disposes of this appeal, we nevertheless address

ourselves to the issue of the defendant's competency, i. e., his memory, at the
time of his alleged noncustodial inculpatory statements. We do so because of
the likelihood of their introduction at a new trial. It was conceded that the
defendant was insane and incompetent to stand trial on November 7, and that
he continued in that state for more than a year. The experts agreed that
defendant had no memory of the events of the night of November 2 while at
Bridgewater. The defendant's expert testified that this state of memory loss
dated back to November 3, and that such memory loss was consistent with his
mental condition. While he acknowledged that it was possible that defendant's
memory was intact on November 3 and 4,7 he stated that it was likely that upon
discovery of the bodies defendant assumed responsibility for the deaths even
though he had no memory of the crime and might in fact be innocent. The
evidence, viewed as a whole, indicates a strong probability that defendant's
admissions were the result of such an assumption or of an insane compulsion to
confess and that they were not based on memory. Defendant's objection to the
admission of these statements raised an issue which should have been resolved
by the trial court on grounds more substantial than the barest possibility that
they might have been competent.8 In view of the nature and importance of
defendant's inculpatory statements and his prima facie claim of incompetence,
we would look askance at their admission without reliable evidence indicating
that they were in fact competent.

18

The judgment of the district court dismissing the petition is vacated. The case is
remanded to the district court with instructions to grant the writ, unless, within
a reasonable time set by the district court, the petitioner is retried by the
Commonwealth.

"Murder committed with deliberately premeditated malice aforethought, or with

extreme atrocity or cruelty, or in the commission or attempted commission of a

crime punishable with death or imprisonment for life, is murder in the first
degree." Mass.Gen.Laws ch. 265 Sec. 1. Because of our resolution of other
issues in this case we do not reach the troublesome question of whether this
statute as applied is impermissibly vague
2

Although Chief Goonan relayed to the defendant instructions from an attorney

to make no statements, he did not otherwise advise the defendant of his
constitutional rights. Defendant had previously been advised of his rights by the
Connecticut police, and his statement indicated an awareness of his right to
remain silent

The credibility of defendant's statements, properly a jury question, is not before

us here. Moreover, in view of our disposition of this appeal, we do not reach the
issue of whether a standard of voluntariness is applicable to non-custodial
statements

The court appears to have blurred the distinction between competency and
voluntariness, as is evident from its ruling on the admission of Kenneth Reid's
testimony of defendant's noncustodial statements:
"It obviously was voluntary. It was made over the telephone; it wasn't made to
anyone in authority.
". . ..
"Obviously, it is not the result of any threats or pressure. Insane people can
make confessions, under certain circumstances. Drunken people can make
them.
". . ..
"Well, I will admit the evidence-I will admit the alleged statement as a
voluntary confession, having in mind that there is no evidence to indicate that
the defendant, at the time of making the statement, was unbalanced. And I will
leave it to the jury-as is the practice of any confession-I will leave it to the jury
to say, in the last analysis, whether he was competent or not."
Subsequently defendant's statements to Margaret Bernardo and Milton Young
(the hunter whom the defendant approached in the Connecticut woods) were
admitted on the same grounds. It appears that statements to police officers were
admitted essentially on the same basis.

"I will deny the motion and rule the statements were voluntarily made, in some
instances to persons not in authority, by the defendant

"And on the theory of the Zelenski Case, an insane person or an intoxicated

person may make a valid confession.
"I will allow the statements to stand and instruct the jury at the appropriate
time."
6

"Now, in this case here, I have admitted for your consideration statements
alleged to have been made by this defendant:-'I did it, I did it,' and statements
allegedly made over the telephone. Those are direct acknowledgments of guilt.
But a humanitarian rule prevails in this Commonwealth
"The Trial Judge holds a preliminary hearing in the absence of the jury, as I
have done in these cases. If he determines that the confession was voluntary,
made by a person with the mental competency to make it, he admits it for the
consideration of the jury. But the jury in turn may consider all of the evidence
and make their own determination. It may be contrary to the finding of the Trial
Judge. So, you may consider these alleged confessions, the manner in which
they were made, by whom they were made, when. You may arrive at a
different conclusion, or you may agree. It is for you to say.
"There is some question here about the mental capacity of this defendant, it
being alleged that he was mentally incompetent to make the confession. I invite
your attention to the principles of law applicable:
"'An insane person is not necessarily an incompetent witness. A confession
made by a defendant more or less under the influence of intoxicating liquor is
not inadmissible as evidence unless the degree of intoxication is so great as to
deprive him of understanding what he was confessing.'
"And, again, a person who is of more or less mental instability arising from
intoxication or insanity may make a valid confession." (Emphasis added.)

This is essentially the only evidence of defendant's ability to remember when

the inculpatory statements were made

Cf. Pittsburgh & W. Ry. v. Thompson, 82 F. 720 (6th Cir. 1897) (applying state
law in terms of general common law principles of competency) where the court
said, "That the person has been found insane, and is an inmate of an insane
asylum, affords prima facie evidence that he is of unsound mind . . . and
operates to throw the burden of proving competency upon the party offering
him." Id. at 727
Note also that the federal rule regarding testimony by insane witnesses is that
their competence is to be determined by the trial court. District of Columbia v.

Armes, 107 U.S. 519, 2 S. Ct. 840, 27 L.Ed. 618 (1882). We believe that in the
absence of an opportunity to make a first hand determination of the witness's
competence, as in the case of hearsay, there should be some reliable evidence
that the witness's statements are competent where a prima facie case of
incompetence has been made. The preponderance of cases following Armes
deal with testimony at a proceeding where the court may observe the witness.
See, e. g., Carter v. United States, 332 F.2d 728 (8th Cir.), cert. denied, 379
U.S. 841, 85 S.Ct. 79, 13 L.Ed.2d 47 (1964); Shibley v. United States, 237 F.2d
327 (9th Cir.), cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 77 (1956); In
re Loughran, 276 F.Supp. 393 (C.D.Cal.1967). But see Robinson v. United
States, 113 U.S.App.D.C. 372, 308 F.2d 327 (1962), cert denied, 374 U.S. 836,
83 S.Ct. 1887, 10 L.Ed.2d 1058 (1963) (hearsay of witness incompetent to
stand trial); Lockard v. Parker, 164 F.2d 804 (4th Cir. 1947) (hearsay of
plaintiff who testified at trial). Massachusetts law is essentially identical to the
Armes rule. Commonwealth v. Reagan, 175 Mass. 335, 56 N.E. 577 (1900).