Davis v. State of North Carolina

• Decision Date: 10 September 1963
• Docket Number: Civ. No. 1302.
• Citation: 221 F. Supp. 494
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Elmer DAVIS, Jr. v. STATE OF NORTH CAROLINA.

221 F. Supp. 494

Elmer DAVIS, Jr. v. STATE OF NORTH CAROLINA.

Civ. No. 1302.

United States District Court E. D. North Carolina, Raleigh Division.

September 10, 1963.

Charles V. Bell, W. B. Nivens, Calvin L. Brown, Charlotte, N. C., for petitioner.

T. Wade Bruton, Atty. Gen. of North Carolina, Raleigh, N. C. (Harry W. McGalliard and James F. Bullock, Asst. Attys. Gen. of Atty. Gen.'s Staff at Hearing), Kenneth R. Downs, Charlotte, N. C., for respondent.

BUTLER, Chief Judge.

This is an application for a writ of habeas corpus on behalf of Elmer Davis, Jr., now confined in the State Prison at Raleigh, North Carolina, under a sentence of death imposed by the Superior Court of Mecklenburg County, North Carolina, upon the applicant's conviction of murder while perpetrating the crime of rape.

The basis of the application is the admission of a confession in the state trial which the applicant contends was involuntary and obtained in violation of his right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution.¹ At the trial objection to the introduction of the confession on this ground was timely made and determined adversely to the applicant. The finding of the trial Judge was affirmed on appeal as supported by substantial evidence. State of North Carolina v. Davis, 1960, 253 N.C. 86, 116 S.E.2d 365, rehearing denied November 18, 1960, cert. denied, 1961, 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.2d 819. Thereafter, application was made to this court and relief was denied without a hearing upon consideration of the state court records. Davis v. State of North Carolina, D.C.N.C., 1961, 196 F.Supp. 488. The Fourth Circuit Court of Appeals, 310 F.2d 904, reversed and remanded for a hearing. Accordingly, a plenary hearing was held in order to determine the unresolved issues of fact surrounding the confession.

The facts in the case are sharply in dispute. The evidence offered at the time of trial is set out in the above-cited opinion of the North Carolina Supreme Court and is substantially the same as that produced at the hearing before this court.² Upon consideration of the record in the state court and the evidence offered at the hearing, the court finds the following historical facts:

1. On September 21, 1959, the day after the murder of Mrs. Foy Bell Cooper in Charlotte, North Carolina, Elmer Davis, Jr. was arrested and brought to the city jail in Charlotte, where he was held until October 6, 1959, the date of his confession.

2. At the time of arrest Davis was an escapee from a North Carolina prison where he was confined under sentences of 17 to 25 years for robbery and assault with intent to commit rape.³ He was wearing clothing other than his prison uniform and had in his possession several articles of women's underwear and a billfold containing papers bearing the name of Bishel Buren Hayes.⁴

Davis had been previously convicted of five criminal offenses, including housebreaking and entering, larceny, robbery, and assault with intent to commit rape, and had served three prior prison sentences aggregating 7 to 8 years in addition to his currrent sentences of 17 to 25 years. He had escaped four times during his several prison terms, resulting in additional prison sentences. Davis was 29 years old. He had completed the third or fourth grade, and from his testimony at the hearing he appeared to be of low average intelligence.

3. Upon taking Davis into custody, the police notified the State's Director of Prisons and obtained permission to hold the prisoner pending an investigation of the sources of the articles found in his possession at the time of arrest and his activities since his escape. At all times from September 21 through October 6, Davis was held under the authority of the North Carolina Director of Prisons and was serving the sentences from which he had escaped.

4. The Charlotte City Jail, where Davis was confined, is an "overnight" jail without facilities for the preparation of hot meals. Prisoners who are held by the Charlotte Police Department for more than a few days are generally confined in the Mecklenburg County Jail in Charlotte, where cooking facilities are available. Prisoners in the city jail are fed twice daily, each meal consisting of two or more sandwiches. While confined, Davis received food similar to that of other prisoners at regular intervals. During one day, he received two hot meals outside the jail and on another occasion received two hamburgers and milk. Periodically, he was provided with peanuts, soft drinks, cigarettes, and like items. On one occasion he informed the officers that he was hungry and they furnished him food. Otherwise, he made no complaint to the jailers who fed him or to the officers who talked with him that he was hungry or that the food was inadequate. Subsequent to October 6, he stated that he had been well-treated in this respect. There was no attempt by the police to weaken the prisoner by inadequate feeding.

5. The cell in which Davis was held was similar to the other cells in the jail, six by ten feet, equipped with a bed, mattress, drinking fountain, and commode. Ventilation was supplied by ceiling fans. Davis was permitted to use a shower bath located near his cell.

6. From September 21 through October 6, neither friend nor relative saw the applicant; however, he was not held incommunicado and he would have been permitted visitors had they come to the city jail and requested to see him. Davis' sole request for visitors was to see his sister, Eloise Stowe, who lived in Charlotte. The officers to whom he made this request contacted his sister and conveyed this message to her. He made no request for counsel.

7. The investigation into the death of Mrs. Cooper was conducted by the Detective Division of the Charlotte Police Department, under the supervision of Captain W. A. McCall. The Cooper case was specifically assigned to Detectives W. F. Hucks and Harold Fesperman. From September 21 through October 6, Detectives Hucks and Fesperman talked with Davis once or twice daily. The interviews were conducted in the detectives' interrogation room of the city jail during the daytime and were approximately one hour long. Davis was a suspect in the Cooper case from the time of his arrest because of the nature and location of the crime; however, the questions prior to October 3 were directed to his background, the sources of the articles in his possession at the time of arrest, and the thefts and unlawful entries which Davis told the officers he had committed after his escape in the vicinity of Asheville, North Carolina. During this period the officers attempted to verify his statements, and Davis was taken to Asheville and vicinity in order to identify the scenes of the crimes to which he professed. Detective Homer C. Gardner, who had known Davis previously, assisted Hucks and Fesperman in the interrogation of Davis on three occasions.

8. On October 2 Detectives Jack W. Porter and W. O. Holmeberg questioned Davis for a short period of time on two occasions concerning his abnormal sex habits. During the afternoon of October 3 Detectives Porter and Holmeberg asked Davis if he would like to go out for some fresh air. They took Davis in an automobile through the Elmwood Cemetery, the scene of the rape-murder, but failed to observe any reactions.

On the afternoon of October 3 the Cooper case was mentioned to Davis for the first time. Detectives Holmeberg and Porter asked Davis if he knew why he was incarcerated. Davis replied that he believed it was becasue of the death of Mrs. Cooper. He was then asked if he committed the crime and he denied it.

9. On October 5 Davis was interrogated concerning the Cooper case a second time. Detective Hucks asked Davis what he knew about the murder and his whereabouts on September 20. He stated that he was in Belmont on that day. He again denied committing the crime.

10. On October 6, at about 12:30 p. m., Davis was questioned for the third time concerning the death of Mrs. Cooper. He was questioned by Detectives Hucks and Fesperman in the city jail in the office of Detective Lieutenant Sykes. Lieutenant Sykes, who had been on vacation during the period of Davis' confinement, came to his office during the questioning and requested that he be allowed to sit in. Sykes had known Davis' family and had talked with Davis some years before concerning other offenses. Davis was asked if he had anything to do with the murder and if he was in the cemetery on the day of the crime. He was asked where he had discarded his prison clothes and where he had obtained the clothing he was wearing and other items of personal property. Davis stated that he had discarded his prison clothes in the mountains when he escaped. He told the officers where he had obtained the clothing and other effects. He would not answer questions concerning the death of Mrs. Cooper. About 12:45 p. m. Lieutenant Sykes asked Davis if he would like to talk to any of the officers alone concerning the death of Mrs. Cooper. Davis stated that he would like to talk to Lieutenant Sykes. Hucks and Fesperman left the room. Sykes observed that Davis was holding a testament which had been distributed to prisoners by the local churches. Thereupon, the following colloquy occurred:

Sykes: "Elmer, have you been reading the scriptures?"

Davis: "I have."

Sykes: "Since you have been here have you also talked with your Almighty?"

Davis: "I have not; I do not know how to pray. I wish you would pray for me."

Sykes then offered the following prayer:

"O God, You are now a witness to and the watcher over both of us. I have been asked to pray. I want You to be with me in this prayer. I want You to watch over the person that is present with me; also be with me. I do not only ask prayers for myself, I ask for You to be with all people."

After a short period of silence following the prayer, the colloquy continued:

Davis: "I'd like to tell you something."

Sykes:

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