c284:No. 77-2097

ROBB, Circuit Judge,
dissenting:
In 1971 the appellant Barnes was tried to a jury and convicted of murder and arson. The proof for the government, including the testimony of eyewitnesses, was that Barnes killed his wife by pouring gasoline on the floor of her room, lighting it with a match, and holding her in the flames. Immediately after the event he made three oral statements to the police, the substance of which was that he had caused the fire but it was an accident and he was sorry. At the trial he was vigorously defended by an experienced criminal lawyer. His defense, consistent with his statements to the police, was that the spilling of the gasoline and the fire were accidental.
Barnes appealed his conviction. In this court he was represented by another experienced and able criminal lawyer. The conviction was affirmed. United States v. Barnes, 150 U.S.App.D.C. 319, 464 F.2d 828 (1970).
The majority now proposes to retry the case, upon the newly minted theory that Barnes’ statements to the police might have been involuntary, that his due process rights might have been violated by their admission in evidence, and that trial counsel’s “repeated waiver of the voluntariness issue” might have been the result of “lack of adequate legal or factual preparation.” Being unable to accept this theory, which I consider unrealistic, I would affirm the denial of the petition to vacate sentence.
The three Barnes statements to the police and the circumstances under which they were made are recounted in the record as follows:
1. The first statement was made to police sergeant Layfield who responded to a “radio run” to investigate trouble at 1014-8th Street, N.W., the scene of the fire. Sgt. Layfield testified:
Upon my arrival I observed several Fire Department vehicles in the ten hundred block of the figure eight street, Northwest.
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As I was walking down towards that address I was approached by a male and a female subject.
The female subject, who was later identified as Dorothy Blizzard, said “That’s the man. That’s the man who started the fire.”
At this time I looked at the male subject, who was later identified as the defendant, and stated, “Is that true? Did you start the fire?”
He says, “I will take the blame for it.”
I said, “Sir, I am not asking you to take the blame. I asked you if you started the fire.”
He said, “Yes, I did. It was an accident.”
At this time I placed him under arrest.
Q. Now at the time that Mrs. Blizzard talked to you had you been into the premises at 1014 Eighth Street, Northwest?
A. No, sir, I had not been.
Q. Did you know what had happened at 1014 Eighth Street, Northwest?
A. No, sir.
I had not.
(Tr. 10, 11)
2. Sgt. Layfield turned Barnes over to Officer Tropf. Officer Tropf testified:
A. I took ahold of Mr. Barnes by the wrist and by the back and top and the rear of his trousers to take him back to the scout car.
Q. What happened then, if anything, Officer Tropf?
A. Before I could turn and leave with Mr. Barnes, a lady lying in front of 1014-8th Street, Northwest, looked up at Mr. Barnes and said to him,“You had no call to do that to me, Bennie,” and then lapsed back into moaning.
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Q. Now after she said that, what, if anything, happened then.
A. After she said that, I turned with the defendant to take him back to the scout car. And while en route back to the scout car, Mr. Barnes made a statement to me.
Q. He made a statement to you?
A. Yes, sir.
Q. Did you ask him to make a statement?
A. No, sir.
Q. Had you said anything to him?
A. No, sir.
Q. What did he say?
A. He said, “I am sorry I did it. What do you think they will do to me?”
Q. Did he say anything else, sir?
A. If he did, I don’t recall, sir.
(Tr. 57, 58)
3. When the patrol wagon arrived to take Barnes to the stationhouse Officer Fuksa advised him of his Miranda rights. At the stationhouse the officer again advised Barnes of his rights, asked him if he understood them; and Barnes said he did. The officer testified:
A. At that time I began filling out the forms which are needed, and I asked the defendant his name and his address.
And at that time he stated to me that Ella had called him over to 1014-8th Street. And he said that he responded over there and that when he arrived they got in an argument. And at this time she had picked up a plastic Clorox bottle which was filled with gasoline and was going to throw it on him. And he said to me that he acted like any man, and he tried to kiss her, and at that time the bottle dropped to the floor and ignited.
Q. Did he say anything further?
A. No, he didn’t.
Q. Had you asked him anything other than his name and address?
A. No, sir, just his name and address.
Q. No other questions at all?
A. No, sir.
(J.A. 35, 36)
A friend of Mrs. Barnes, Harley Davis, dragged her out of the fire. He testified that seeing Barnes standing nearby “I asked him, I said, ‘What did you do this for Bennie?’ Just like that. And he said, T am sorry. I was wrong.’ That’s all he said.” (Tr. 265) Within moments thereafter the police arrived and Barnes was arrested. The majority says that when he talked to the police Barnes was in such condition and subject to such handicaps that his statements to the officers may have been involuntary. My colleagues do not suggest that the statement to Davis was involuntary; yet when he made it Barnes was subject to the same conditions and handicaps that existed when he talked to the police, only moments later.
In my judgment there is no basis whatever for a contention that Barnes’ statements to the police were involuntary. If they were, then I do not see how any statement could be voluntary. Barnes spoke to the police of his own volition; no one coerced or pressed him to speak, nor did any of the circumstances mentioned by the majority exert any such pressure or coercion. In my opinion what the majority considers a “waiver of the involuntariness issue” by counsel was merely a sensible decision to refrain from frivolous argument.
I think the proceedings on remand which the majority orders will be a sterile academic exercise. Accordingly I dissent.

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