Lyles v. Beto

• Decision Date: 24 April 1964
• Docket Number: No. 20658.,20658.
• Citation: 329 F.2d 332
• Parties: Burl Eugene LYLES, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

329 F.2d 332 (1964)

Burl Eugene LYLES, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 20658.

United States Court of Appeals Fifth Circuit.

March 12, 1964.

Rehearing Denied April 24, 1964.

Robert Coffey, Houston, Tex., for appellant.

Sam R. Wilson, Houston, Tex., J. G. Davis, Asst. Atty. Gen., Huntsville, Tex., George W. Gray, III, Asst. Atty. Gen., Austin, Tex., for appellee.

Before HUTCHESON, BREITENSTEIN,^* and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

Lyles, the appellant here, as a result of information received from an accomplice, was indicted by the grand jury of Ector County, Texas in February of 1961 for the crime of burglary. A warrant was then issued for his arrest. Upon waiving extradition, he was returned to Ector County from California and placed in the Odessa City jail at 12:05 A.M. He spent the remainder of the night sleeping. Around noon on that day he was asked by a detective lieutenant if he wished to make a statement concerning the charges pending against him. He replied that he did. The lieutenant then removed him from the jail and took him to his office where he was given the warning required by Texas law that he need not make a statement, but if made it might be used against him on any trial of the charges in question.¹ Lyles recites in his statement that he was told that he did not have to make a statement at all and that any statement made "may" be used in evidence on the trial. The lieutenant testified that this warning was in fact given.

Appellant gave an oral recitation of his participation in the crime with which he was charged. He asked only, as did his accomplice who had previously given written statements to other detectives, that he not be required to name his accomplice in writing. The lieutenant then took his statement down by longhand, and he again repeated the story of his participation. The statement was thereafter typed by a secretary, and signed in the presence of witnesses, although only appellant and the lieutenant were present when the statement was made. The entire interview including the time consumed in typing and signing the statement took about two hours. A lady called to see appellant while he was making his statement, and was advised that she could see him in a few minutes if she would wait. The inference from the record is that this was appellant's sister. She did see him afterwards but the record is not clear as to the hour.

He did not have counsel at the time. He did not request counsel, and counsel was not offered him until later when an experienced criminal lawyer was appointed to defend him on the day before his case came to trial. The state proved the corpus delicti, introduced the written statement of confession, and appellant was thereupon convicted by a jury. The same lawyer filed a motion for a new trial which was overruled, and then unsuccessfully appealed to the Court of Criminal Appeals of Texas, making a personal appearance to argue the case before that court. Lyles v. State of Texas, 1961, Tex.Cr.App., 351 S.W.2d 886. A subsequent petition for a writ of habeas corpus to that court was denied.

This appeal comes from the denial of a petition for a writ of habeas corpus by the United States District Court for the Southern District of Texas. That court held a full hearing on the petition with appellant, represented by counsel appointed by that court, present and testifying. The court heard the testimony of other witnesses, considered documentary and stipulated evidence, and the record in the state court.

It was the position of appellant there that the statement was obtained through coercion, and that his trial counsel was negligent in failing to object to the admission of the statement in evidence, in failing to put his sister on the stand as an alibi witness, and in failing to put an alleged accomplice, who later plead guilty, on the stand to testify that he did not participate in the crime. The District Court resolved each of these contentions against appellant on the facts.

It appears from the record that no objection was made on the trial to the statement other than on the basis that the testimony of the detective lieutenant showed that the warning required under the Texas statute, Footnote 1, supra, was not given in proper form.² However, the contention on the habeas corpus hearing in the District Court was that the detective lieutenant composed the statement, based upon his own knowledge of the crime, and forced appellant to sign it. It is to be noted that the statement went into minute detail as to the commission of the crime and differed in material degree from statements theretofore taken from the accomplice. The lieutenant testified that there was no coercion whatever, but that the statement was voluntarily made. The testimony of appellant was that he was slapped anywhere from two to several times by the lieutenant, and that this caused him to sign the statement. He did not testify that any such conduct on the part of the lieutenant caused him to give the statement. The court chose to believe the lieutenant after hearing from both, and after both had undergone searching cross-examination.

The accomplice was brought to the hearing from the Texas State Penitentiary where he was lodged with appellant. He testified that appellant did not participate in the crime and that he had so told the lieutenant before trial. His story was patently unworthy of belief in view of his prior statements, and from the standpoint of the physical impossibility of him having alone committed the burglary, it having been carried out in such a way as to require the services of at least two people. He had previously obtained leniency in the form of a concurrent state sentence for his help in convicting appellant.³

It developed that the sister who was asserted to be an alibi witness sat in the courtroom during the trial in the state court but did not testify. Although notified by letter, and called on the telephone by counsel for appellant in the District Court, she failed to appear.

On the appeal here we appointed new and different counsel to represent appellant, and proceeding diligently in the performance of his duty, the thrust of the case has been somewhat modified or refined. First, it is claimed that counsel was in fact ineffective because of late appointment or otherwise. Second, he relies on Lee v. United States, 5 Cir., 1963, 322 F.2d 770, a case decided by this court since the District Court decision in the case at bar, as supporting the proposition that his client was entitled to counsel after indictment as a matter of law, including the time when the statement in question was made, with the result that the statement was inadmissible.

The right of an indigent state prisoner to counsel in a case of this kind is undoubted. It rests on the Sixth Amendment and its inclusion in the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. And the right to counsel includes the right to have the assistance of counsel in preparing for the trial, or, stated differently, the effective assistance of counsel. Powell v. Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

Appellant had trial counsel, and his claim that he was deprived of the effective assistance of counsel is without merit. It appears without dispute that the lawyer appointed to represent him was experienced in criminal trials, that appellant had previously told his sister to get in touch with the same lawyer with regard to obtaining his services in the same case, that the lawyer successfully defended a person charged with another burglary on the day before this trial, and that appellant asked to go to trial on the next day in the hope of obtaining the advantage of what he thought might be a favorable panel of jurors. This is the same lawyer who handled the appeal of the case through the Texas Court of Criminal Appeals. He orally argued the appeal there and was commended by that court for his diligence. Contrasted with this state of the record is the fact that there is no showing whatever of prejudice to appellant on account of having gone to trial when he did, or because of the late appointment of counsel.

The claim of negligence on the part of the lawyer rested on the statement of appellant that the lawyer was told of the police brutality and coercion and of the alibi witness, but failed to object to the admission of the statement in evidence or to use the witness. The predicate for this claim fell in the District Court for lack of proof of the alleged brutality and coercion, or that there was an alibi witness. In our view this holding was well founded.

This leaves for decision the question of the right to counsel at the time the confession was made. Powell v. Alabama, supra, indicates that the right to counsel encompasses the guiding hand of counsel at every step of the proceedings against a defendant, and appellant urges that this means every step after indictment, and that his giving of the written statement was a step. He assumes a state of indigency at the time the statement was made. Indigency is a fact question, and there was no determination of it in the District Court although an inference of indigency might fairly be drawn from the fact that counsel was later appointed for him. At any rate, we will proceed on that basis. Moreover, there is no contention that appellant waived his right to counsel. See Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; and Carnley v. Cochran, 1962, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. Thus our determination is within the frame of a voluntary statement by an indigent defendant after indictment.

A panel of this court in the Lee case, supra, with Judge Hutcheson dissenting, held that oral admissions voluntarily made by a prisoner to two government agents upon secret interrogation in his prison cell,...