Kinder v. Boles
| Decision Date | 21 April 1966 |
| Docket Number | Civ. A. No. 1516-W. |
| Citation | 253 F. Supp. 817 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | Roy E. KINDER, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent. |
Richard H. Talbott, Jr., Elkins, W. Va., for petitioner.
C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, W. Va., for respondent.
This is a habeas corpus proceeding, brought by Roy E. Kinder, an inmate of the West Virginia State Penitentiary. Kinder is serving a life sentence for two acts of first degree murder, imposed on January 19, 1960, by the Intermediate Court of Kanawha County, West Virginia. Several months earlier, a Kanawha County jury had found Kinder guilty of these charges and had recommended mercy.
Kinder is a man with a sixth grade education, who was unemployed at the time of the killings. His earlier employment had been as a maintenance man. During trial, he was described by medical witnesses as "mildly retarded" and as a "schizoid personality with the added complications of intellectual deficiency."
The transcript of the state trial also shows that the jury was presented with the following testimony. On the evening of March 1, 1959, Dave Ellis and Mrs. Elma Dodd, for whose subsequent murders that evening Kinder was found guilty, Kinder's wife, Charma (who was Mrs. Dodd's sister), along with two other men, paid several visits to a local tavern, then returned to Mrs. Dodd's house trailer. There, a fight ensued between Kinder, who had appeared on the scene, and Ellis, whom Kinder had caught acting improperly with his wife, Charma. Kinder was badly beaten around the face and forced to leave.
Approximately three hours later, Kinder reappeared with his shotgun, fired twice into Mrs. Dodd, who had tried to stop him at the trailer door, then, stepping into the trailer, shot Ellis. After having been told that his wife was no longer there, Kinder left, not noticing that she was hiding nearby.
State troopers were thereafter called to the scene, and the testimony of at least one of them indicated not only that Kinder's deserted auto was later found close to the trailer, but that three fired shells, found in and around the trailer, had been fired from Kinder's shotgun.
Kinder, in the meantime, still bloodied and weak from his earlier scuffle with Ellis, made his way by foot over five or six miles of rough countryside to the home of a friend. From there, on March 2, 1959, the sheriff and state police were called. The officer who actually arrested Kinder and took him to the state police barracks for interrogation testified before the jury that Kinder's face, at this time, was blood covered.
Kinder was detained at the state police barracks for approximately two and one-half hours, during which time a signed confession was obtained.1 Afterwards, he was taken to a nearby hospital by the troopers and given medical attention.
In addition to other exhibits, and to the lengthy testimony, above summarized, the Petitioner's confession was also presented to the jury at the state trial. During the trial proceedings, defense counsel never specifically questioned its voluntariness. But the record discloses that during a hearing held by the trial judge, out of the presence of the jury, the prime purpose of which was to determine whether a certain photograph of the defendant should be admitted in evidence, the trial judge noted that he would also allow the introduction of the confession.
The trial proceedings related to the introduction of the confession, as recorded on pages 160-4 of the State Trial Transcript, read as follows:
In other words, two facts are apparent: (1) defense counsel Sprouse indicated that the voluntariness of the confession had not been stipulated, if in fact such could properly be done, and that the jury, in some manner, and at least to a limited degree, was to consider the voluntariness of the confession; and (2) the trial judge permitted the confession to be introduced but, as the trial record later reflects, without jury instructions on this matter.
In 1964 Kinder unsuccessfully petitioned the West Virginia Supreme Court of Appeals for a writ of state habeas corpus, primarily alleging a deprivation of his Fourteenth Amendment rights, under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Another of his primary allegations was that he had been refused medical care by the state authorities, until after he had signed the above mentioned confession.
These two arguments are specifically urged before this Court by way of federal habeas corpus relief. From a reading of the state trial transcript, however, it is apparent that a third question is also involved. This issue is whether the manner by which Kinder's confession was submitted to the jury deprived Kinder of a reliable, judicial determination of its voluntariness, now necessitated by Jackson v. Denno, 378 U.S. 368, 376-377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This third issue Kinder has not articulated.
Before looking at the merits of this case more closely, it should be noted that Charles F. Paul, District Judge, now deceased, originally issued an order to show cause in this case, and that the Respondent answered. After the death of Judge Paul, the case was ordered transferred from the Wheeling, West Virginia, Civil Docket to the Civil Docket in Elkins, West Virginia. Counsel for the Petitioner was thereafter appointed, and a plenary hearing was held before this Court on October 12, 1965.
In addition to the testimony offered at this plenary hearing, this Court has given consideration to the reports, the pleadings and the orders that are a part of the records. As a result, it has arrived at the following determinations.
Petitioner's first contention, raising Escobedo ramifications, is that he was not afforded the assistance of counsel after having been placed in police custody. More specifically, he alleges that he was not effectively advised of his "absolute constitutional right against self-incrimination," and that he was not advised of his "absolute constitutional right to have the assistance of counsel before he made the said statement."
The United States Supreme Court, however, has recently heard arguments on several cases dealing with the scope, applicability and retroactivity of the Escobedo rule. California v. Stewart (No. 584) (62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, 86 S.Ct. 882, argued March 2, 1966; Miranda v. Arizona (No. 759) (98 Ariz. 18, 401 P.2d 721, 86 S.Ct. 885, argued February 28 and March 1, 1966; Vignera v. New York (No. 760) (15 N.Y.2d 970, 259 N.Y.S.2d 857, 207 N.E. 2d 527), 86 S.Ct. 885, argued March 1, 1966; Westover v. United States (No. 761) (342 F.2d 684, 9th Cir. 1965), 86 S.Ct. 885, argued March 1, 1966; and Johnson v. New Jersey (No. 762) (43 N. J. 572, 206 A.2d 737), 86 S.Ct. 886, argued March 1-2, 1966. ...
To continue reading
Request your trial
-
Clifton v. United States, 19757.
...determination of the voluntariness of the confession" is required. 379 U.S. at 45, 85 S.Ct. at 176. See also Kinder v. Boles, 253 F.Supp. 817, 823 (N.D.W.Va.1966). 7 See also State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966); People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d ......
-
State v. Vance
...W.Va. 755, 768-770, 105 S.E.2d 140, 147 (1958); State v. Brady, 104 W.Va. 523, 529-530, 140 S.E. 546, 549 (1927); See also Kinder v. Boles, 253 F.Supp. 817 (D.C.1966), while it appears the "humane" approach was employed in State v. Richards, 101 W.Va. 136, 145, 132 S.E. 375, 379 (1926) and ......