Frank M. Miller, Jr. v. Peter J. Fenton, Superintendent, Rahway State Prison, Irwin I. Kimmelman, Attorney General, State of New Jersey

This state habeas corpus appeal requires us to determine whether a confession to murder, alleged by the petitioner to have been secured by psychological coercion, was voluntary and hence admissible. After reviewing the circumstances of the confession under a plenary standard, see Miller v. Fenton, --- U.S. ----, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), rev'g Miller v. Fenton, 741 F.2d 1456 (3d Cir.1984), we find that the confession was voluntary. We therefore affirm.

On August 13, 1973, seventeen-year-old Deborah Margolin was brutally murdered. According to her brothers, she was sitting on the porch of her home in rural East Amwell Township when a stranger approached in an automobile and informed her that a heifer was loose at the bottom of the driveway. Ms. Margolin drove alone in her brother's car to retrieve the heifer. She never returned. Later that day, her father found her mutilated body lying face down in a creek.

When the New Jersey State Police arrived at the scene, the victim's brothers gave them a description of the stranger who had driven up to the house and of the car he had driven, an old white car with the trunk tied shut and two dents in the side. One of the officers recalled that the petitioner, Miller, who lived nearby, drove a car that matched that description. Detective Boyce of the State Police confirmed the description of the car and also concluded that the description of the stranger fit Miller, who had been convicted in 1969 of carnal abuse and arrested in 1973 for statutory rape.

At about 10:50 p.m. that day, the state police questioned Miller at his place of employment, P.F.D. Plastics in Trenton. After a brief discussion, he agreed to accompany the officers to the police barracks for further questioning. At the barracks, Miller spent about seventy-five minutes waiting with Trooper Scott, during which time he was not questioned. He was then taken into an interrogation room by Detective Boyce and read his Miranda rights. Miller signed a Miranda card, thus waiving his Miranda rights,1 and Boyce's interrogation ensued. One hour into the interrogation, Miller confessed to the murder of Deborah Margolin, then passed out.

Miller was indicted for first-degree murder. Before his trial, he moved to suppress the confession as involuntary, but the state trial court denied the motion. After a trial at which the confession was received as evidence, Miller was convicted. On appeal of the conviction, a three-judge panel of the Appellate Division of the New Jersey Superior Court unanimously reversed, finding that Detective Boyce's technique in eliciting the confession2 had denied Miller due process of law. Characterizing Boyce's method of interrogation as "psychological pressure," the panel held that as a result of that pressure, Miller's confession had not been voluntary.3 In a 4-3 decision, the New Jersey Supreme Court reversed the Appellate Division and reinstated the conviction. State v. Miller, 76 N.J. 392, 388 A.2d 218 (1978). Looking at the totality of the circumstances, the court held that Boyce's interrogation tactics had not overborne Miller's will, and that the confession had indeed been voluntary and thus properly admissible into evidence.

Miller petitioned for a writ of habeas corpus in the United States District Court for the District of New Jersey. The petition was referred to a magistrate, who recommended that the writ be denied. The district court agreed, rejecting Miller's contention that Boyce's questioning created psychological pressure that rendered the confession involuntary. Miller thereupon appealed to this Court.

In Miller v. Fenton, 741 F.2d 1456 (3rd Cir.1984), rev'd and remanded --- U.S. ----, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), we held that under 28 U.S.C. Sec. 2254(d), federal review of the state court's finding of voluntariness was deferential, limited to determining whether the state court had applied the proper legal test and whether the conclusion reached by the state court was supported by the record as a whole.4 Applying that standard, we upheld the determination that Miller's confession was voluntary. Although we noted in passing that even if our review on the question of voluntariness had been plenary, we would have reached the same result, id. at 1467 n. 21, we did not engage in any detailed analysis of the question of voluntariness under a plenary standard.

The United States Supreme Court granted certiorari and reversed. Miller v. Fenton, --- U.S. ----, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Stating that the issue of voluntariness is a legal, rather than a factual, question, the Court held that whether the challenged confession was voluntary is a matter for independent federal appellate determination. It remanded the case so that we might conduct a fuller analysis under the correct standard. We now engage in such an inquiry and conclude that Miller's confession was elicited in a manner compatible with the requirements of the Constitution.

At the outset of our analysis, it is essential that we review the salient features of the interrogation.5 Because the state police taped the interrogation, we have had an opportunity actually to hear Detective Boyce's questions and Miller's responses. A significant portion of the questioning was in the typical police interrogation mode, developing chronologically Miller's whereabouts on the day in question, confronting him with the identification of his car, asking him point-blank whether he committed the crime, challenging his answers, and attempting to discover the details of the crime. This element of the interrogation is unexceptionable and unchallenged. We shall therefore focus primarily on the features of the interrogation that are at issue.

It is clear that Boyce made no threats and engaged in no physical coercion of Miller. To the contrary, throughout the interview, Detective Boyce assumed a friendly, understanding manner and spoke in a soft tone of voice. He repeatedly assured Miller that he was sympathetic to him and wanted to help him unburden his mind. As the following excerpts demonstrate, the Detective's statements of sympathy at times approached the maudlin:

Boyce: Now listen to me, Frank. This hurts me more than it hurts you, because I love people.

* * *

* * *

Boyce: Let it come out, Frank. I'm here, I'm here with you now. I'm on your side, I'm on your side, Frank. I'm your brother, you and I are brothers, Frank. We are brothers, and I want to help my brother.

* * *

* * *

Boyce: We have, we have a relationship, don't we? Have I been sincere with you, Frank?

Boyce also gave Miller certain factual information, some of which was untrue. At the beginning of the interrogation, for example, Boyce informed Miller that the victim was still alive; this was false. During the interview, Boyce told Miller that Ms. Margolin had just died, although in fact she had been found dead several hours earlier.

Detective Boyce's major theme throughout the interrogation was that whoever had committed such a heinous crime had mental problems and was desperately in need of psychological treatment. From early in the interview, Detective Boyce led Miller to understand that he believed that Miller had committed the crime and that Miller now needed a friend to whom he could unburden himself. The Detective stated several times that Miller was not a criminal who should be punished, but a sick individual who should receive help. He assured Miller that he (Detective Boyce) was sincerely understanding and that he wished to help him with his problem. The following excerpts from the transcript of the interrogation provide examples of the statements about Miller's having psychological problems, as well as of the assurances of help:

Boyce: [L]et's forget this incident, [l]et's talk about your problem. This is what, this is what I'm concerned with, Frank, your problem.

Miller: Right.

Boyce: If I had a problem like your problem, I would want you to help me with my problem.

Miller: Uh, huh.

Boyce: Now, you know what I'm talking about.

Miller: Yeah.

Boyce: And I know, and I think that, uh, a lot of other people know. You know what I'm talking about. I don't think you're a criminal, Frank.

Miller: No, but you're trying to make me one.

Boyce: No I'm not, no I'm not, but I want you to talk to me so we can get this thing worked out.

* * *

* * *

Boyce: I want you to talk to me. I want you to tell me what you think. I want you to tell me how you think about this, what you think about this.

Miller: What I think about it?

Boyce: Yeah.

Miller: I think whoever did it really needs help.

Boyce: And that's what I think and that's what I know. They don't, they don't need punishment, right? Like you said, they need help.

Miller: Right.

Boyce: They don't need punishment. They need help, good medical help.

Miller: That's right.

Boyce: [T]o rectify their problem. Putting them in, in a prison isn't going to solve it, is it?

Miller: No, sir. I know, I was in there for three and a half years.

* * *

* * *

Boyce: You can see it Frank, you can feel it, you can feel it but you are not responsible. This is what I'm trying to tell you, but you've got to come forward and tell me. Don't, don't, don't let it eat you up, don't, don't fight it. You've got to rectify it, Frank. We've got to get together on this thing, or I, I mean really, you need help, you need proper help, and you know it, my God, you know, in God's name, you, you, you know it. You are not a criminal, you are not a criminal.

Boyce also appealed to Miller's conscience and described the importance of Miller's purging himself of the memories that must be haunting him. This aspect of the interrogation is exemplified in the preceding passage--"Don't, don't, don't let it eat you up, don't, don't fight it. You've got to rectify it, Frank." The following excerpts are representative of Boyce's arguments along this line:

Boyce: Frank, listen to me, honest to God, I'm, I'm telling you, Frank, (inaudible). I know, it's going to bother you, Frank, it's going to bother you. It's there, it's not going to go away, it's there. It's right in front of you, Frank. Am I right or wrong?

Miller: Yeah.

* * *

* * *

Boyce: Honest, Frank. It's got to come out. You can't leave it in. It's hard for you, I realize that, how hard it is, how difficult it is, I realize that, but you've got to help yourself before anybody else can help you.

* * *

* * *

Boyce: First thing we have to do is let it all come out. Don't fight it because it's worse, Frank, it's worse. It's hurting me because I feel it. I feel it wanting to come out, but it's hurting me, Frank.

* * *

* * *

Boyce: No, listen to me, Frank, please listen to me. The issue now is what happened. The issue now is truth. Truth is the issue now. You've got to believe this, and the truth prevails in the end, Frank. You have to believe that and I'm sincere when I'm saying it to you. You've got to be truthful with yourself.

* * *

* * *

Boyce: That's the most important thing, not, not what has happened, Frank. The fact that you were truthful, you came forward and you said, look I have a problem. I didn't mean to do what I did. I have a problem, this is what's important, Frank. This is very important, I got, I, I got to get closer to you, Frank, I got to make you believe this and I'm, and I'm sincere when I tell you this. You got to tell me exactly what happened, Frank. That's very important. I know how you feel inside, Frank, it's eating you up, am I right? It's eating you up, Frank. You've got to come forward. You've got to do it for yourself, for your family, for your father, this is what's important, the truth, Frank.

When Miller at last confessed, he collapsed in a state of shock. He slid off his chair and onto the floor with a blank stare on his face. The police officers sent for a first aid squad that took him to the hospital.

The sole question before this Court is whether Miller's confession was voluntary. Miller contends that Detective Boyce's method of interrogation constituted psychological manipulation of such magnitude that it rendered his confession involuntary. The government counters that Miller's confession was voluntary and hence properly admissible.

It is well established that an involuntary confession may result from psychological, as well as physical, coercion. See, e.g., Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960) ("A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of 'persuasion'."); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (1949); Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). However, while a per se involuntariness rule applies when an interrogation is accompanied by physical violence, see Stein v. New York, 346 U.S. 156, 182, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522 (1953), no such rule applies when the alleged coercion is psychological. Id. at 184, 73 S.Ct. at 1092. As the Supreme Court has noted, "[t]he line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused." Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963).

To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 489, 27 L.Ed.2d 524 (1971); Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969); Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139, 22 L.Ed.2d 433 (1969); Blackburn v. Alabama, supra, 361 U.S. at 206, 80 S.Ct. at 279; Fikes v. Alabama, supra, 352 U.S. at 197, 77 S.Ct. at 284. The question in each case is whether the defendant's will was overborne when he confessed. See, e.g., Schneckloth v. Bustamonte, supra, 412 U.S. at 225-26, 93 S.Ct. at 2046-47; Procunier v. Atchley, supra, 400 U.S. at 453, 91 S.Ct. at 489; Haynes v. Washington, supra, 373 U.S. at 513, 83 S.Ct. at 1342 (1963); Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961); Leyra v. Denno, supra, 347 U.S. at 558, 74 S.Ct. at 717 (1954); Watts v. Indiana, supra, 338 U.S. at 53, 69 S.Ct. at 1349. Factors to be considered include:

the youth of the accused; his lack of education or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of physical punishment such as the deprivation of food or sleep.

Schneckloth v. Bustamonte, supra, 412 U.S. at 226, 93 S.Ct. at 2047 (1973) (citations omitted). As the Eighth Circuit has explained, "[u]sing the flexible totality of the circumstances approach requires the reviewing court to consider the specific tactics utilized by the police in eliciting the admissions, the details of the interrogation, and the characteristics of the accused...." Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983) (citations omitted). Although at the trial level the burden is on the government to establish, by a preponderance of the evidence, that a challenged confession was voluntary, see Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972), on collateral review, the habeas corpus petitioner must prove involuntariness by a preponderance of the evidence. See Martin v. Wainwright, 770 F.2d 918, 925 (11th Cir.1985); Jurek v. Estelle, 623 F.2d 929, 937 (5th Cir.1980); Bruce v. Estelle, 536 F.2d 1051, 1059 (5th Cir.1976).

We emphasize that the test for voluntariness is not a but-for test: we do not ask whether the confession would have been made in the absence of the interrogation. Few criminals feel impelled to confess to the police purely of their own accord, without any questioning at all. See Stein v. New York, supra, 346 U.S. at 186, 73 S.Ct. at 1093 ("Of course, these confessions were not voluntary in the sense that petitioners wanted to make them or that they were completely spontaneous, like a confession to a priest, a lawyer, or a psychiatrist. But in this sense no criminal confession is voluntary."); United States v. Wertz, 625 F.2d 1128, 1134 (4th Cir.1980). Thus, it can almost always be said that the interrogation caused the confession.

Moreover, it is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect.6 See Haynes v. Washington, supra, 373 U.S. at 514-15, 83 S.Ct. at 1343-44. For example, the interrogator may play on the suspect's sympathies or explain that honesty might be the best policy for a criminal who hopes for leniency from the state, see Rachlin v. United States, supra, 723 F.2d at 1378 (agents may have told suspect that it was in his best interest to cooperate, but resulting confession was voluntary); United States v. Vera, 701 F.2d 1349, 1363-64 (11th Cir.1983) (agent told suspect that he could help himself by cooperating, but resulting confession was voluntary). These ploys may play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary. The question we must answer, then, is not whether Detective Boyce's statements were the cause of Miller's confession--indeed, we assume that to be the case--but whether those statements were so manipulative or coercive that they deprived Miller of his ability to make an unconstrained, autonomous decision to confess. To that inquiry we now turn.

B. The Circumstances of the Miller Interrogation

A "totality of the circumstances" inquiry defies strictly analytic treatment. We cannot reach a conclusion simply by scrutinizing each circumstance separately, for the concept underlying the phrase "totality of the circumstances" is that the whole is somehow distinct from the sum of the parts. See United States v. Wertz, supra, 625 F.2d at 1134. Nevertheless, we can understand the totality only after reviewing the constituent elements of the situation. We shall therefore discuss each relevant circumstance of the interrogation before addressing the question whether all of the circumstances, taken together, indicate that Miller's confession was voluntary.7

Miller is a mature adult, thirty-two years of age. He is of normal intelligence and has some high school education. Such a person is more resistant to interrogation than a person who is very young, uneducated or weak-minded. Cf. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (detainee had third- or fourth-grade education and very low IQ); Fikes v. Alabama, supra (detainee was uneducated person of low intelligence, possibly with mental illness); Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (detainee was mentally retarded). Miller was suffering from no painful physical ailment that would have impelled him to confess simply to put an end to the detention. Cf. Reck v. Pate, supra (detainee physically ill, at one point vomiting blood on the floor of the interrogation room); Leyra v. Denno, supra (detainee suffering from acutely painful sinus condition); Ziang Sun Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131 (1924) (detainee suffering from spastic colitis).

Moreover, Miller had had previous experience with the criminal system; indeed, he had served a jail sentence. Thus, he was aware of the consequences of confessing. In addition to this experience, he received Miranda warnings. The Seventh Circuit has recently stressed the importance of a detainee's prior experience, as well as age and education, in determining whether a confession was voluntary. In United States v. Oglesby, 764 F.2d 1273, 1278 (7th Cir.1985), the court noted that the accused had three prior felony convictions, had earned a substantial number of college credit hours and was fifty-four years old at the time of his confession. The court stated that "the record reveals that the defendant was not disadvantaged by youthful ignorance or the naivete born of inexperience" and concluded that he "was able to resist whatever pressure was brought to bear on him by the FBI agent's promise to make his cooperation known to the United States Attorney...."8

Detective Boyce's interrogation of Miller lasted less than an hour. It was not "a process of interrogation ... so prolonged and unremitting, especially when accompanied by deprivation of refreshment, rest or relief, as to accomplish extortion of an involuntary confession." Stein v. New York, supra, 346 U.S. at 184, 73 S.Ct. at 1092. It is thus distinguishable from the lengthy interrogations during incommunicado detention that have been held to result in involuntary confessions. See, e.g., Davis v. North Carolina, supra (sixteen days); Reck v. Pate, supra (four days); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (forty-nine hours); Fikes v. Alabama, supra (two weeks); Ashcraft v. Tennessee, supra (thirty six hours); Ziang Sung Wan v. United States, supra (seven days). It is significant that cases in which psychological coercion has been found typically involved longer periods of interrogation than that to which Miller was submitted. See, e.g., Blackburn v. Alabama, sup