288 F.2d 530 (6th Cir. 1961), 14278, Cato v. Alvis

Docket Nº:14278.
Citation:288 F.2d 530
Party Name:Floyd CATO, Petitioner-Appellant, v. Ralph W. ALVIS, Warden, Ohio State Penitentiary, Respondent-Appellee.
Case Date:April 04, 1961
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 530

288 F.2d 530 (6th Cir. 1961)

Floyd CATO, Petitioner-Appellant,

v.

Ralph W. ALVIS, Warden, Ohio State Penitentiary, Respondent-Appellee.

No. 14278.

United States Court of Appeals, Sixth Circuit.

April 4, 1961

Clifford F. Brown, Norwalk, Ohio, for appellant.

John J. Connors, Jr., Asst. Atty. Gen. of Ohio, Mark McClroy, Atty. Gen. of Ohio, on brief, for appellee.

Before SIMONS, Senior Circuit Judge, CECIL, Circuit Judge, and THORNTON, District Judge.

CECIL, Circuit Judge.

This appeal involves the denial of a petition for a writ of habeas corpus by the District Court, for the Eastern Division, of the Southern District of Ohio.

The Petitioner-Appellant is confined in the Ohio State Penitentiary on conviction of a three-count indictment from the Court of Common Pleas, of Erie County, Ohio.

The appellant's conviction was affirmed by the Court of Appeals of Erie County, and the Supreme Court of Ohio, Cato v. State, 167 Ohio St. 320, 147 N.E.2d 857, dismissed the appeal. His petition to the Supreme Court of the United States for a writ of certiorari was also denied 357 U.S. 931, 78 S.Ct. 1377, 2 L.Ed.2d 1374.

The appellant was represented by counsel and was accorded a hearing in the District Court. That court had before it the testimony of the petitioner and a transcript of the evidence taken at the trial, which was submitted by stipulation of counsel.

It is undisputed that the petitioner was arrested on February 6th without a warrant and was held without a warrant until February 11th. At that time, he was taken before a court on a warrant and held for the grand jury. During the interval, recorded statements were taken from him on February 7th, 8th and 11th. These statements were admitted in evidence at the trial. Shirley Hale Cato, the common-law wife of the appellant, was present at the time the second and third statements were taken.

The petitioner complains that, during the time he was held without a warrant, he was not advised of his right to secure a lawyer, or to remain silent, or to be taken before a court, or a magistrate. He further complains that he was subjected to persistent and prolonged interrogation

Page 531

and was prohibited from seeing his purported wife, until after he had made a statement.

The District Judge held that the undisputed testimony was insufficient to establish that the petitioner's confessions were involuntary. He further held 'that the trial court's resolution of conflicting testimony, as to the voluntariness of petitioner's confession, cannot now be reviewed in habeas corpus.'

The petitioner was indicted along with his brother Wilford and Lester McCoy, on three counts, charging in the first count that on the evening of January 24, 1957, they assaulted one Kenneth Cullen, with intent to rob him, in the second count, that at the same time they shot Kenneth Cullen, with intent to wound him, and in the third count, that at the same time and as a part of the same attempted robbery, they shot at Victor C. Adcock with intent to wound him.

The appellant was prosecuted as an aider and abettor, under section 1.17 of the Ohio Revised Code, which reads: 'Any person who aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.'

Immediately preceding the robbery, Richard Shimer, an F.B.I. agent, was in the Fisher market and observed the appellant, whom he did not know, leave the store. A few days later he identified this man in a blue Oldsmobile on the street. He took the license number of the car and followed the appellant to the Wayne hotel, where he roomed. Mr. Shimer gave this information to the police and it was from this slender clue that the crime was solved.

The police first contacted Shirley Hale, the woman with whom Floyd Cato, the appellant, was living. She was sometimes referred to as his purported or common-law wife. Through her all three of the men were identified and implicated. Floyd was then arrested.

In his statement of February 7th, Floyd told of going to the Fisher market to look it over for his brother who had said he would rob it. In this statement he involved himself as a participant in the crime, as well as his brother and Lester McCoy.

The evidence does not support his claim that he was told that he could not see his wife unless he made a statement. As a matter of fact, he did see his wife in the presence of the officers before he gave his first statement. The officers were holding her as a witness and would not let her talk to him until they had his story. She was held in the detention home rather than the jail. Their baby was put in the custody of the couple's own baby sitter,...

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