Dupes v. Johnson

• Decision Date: 03 December 1965
• Docket Number: No. 16602.,16602.
• Citation: 353 F.2d 103
• Parties: Edgar DUPES, Petitioner-Appellee, v. Wilburn C. JOHNSON, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

353 F.2d 103 (1965)

Edgar DUPES, Petitioner-Appellee, v. Wilburn C. JOHNSON, Warden, Respondent-Appellant.

No. 16602.

United States Court of Appeals Sixth Circuit.

December 3, 1965.

Ed R. Davies, Special Counsel for State of Tennessee, Nashville, Tenn., Henry C. Foutch, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., on brief; George F. McCanless, Atty. Gen. and Reporter, State of Tennessee, Nashville, Tenn., of counsel, for appellant.

Robert H. Dedman, Nashville, Tenn., for appellee.

Before PHILLIPS and CELEBREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

Edgar Dupes, petitioner-appellee herein, was convicted of first degree murder at the May 1960 term of Criminal Court of Monroe county, Tennessee, and was sentenced to fifty years' imprisonment. He was charged jointly with two other accomplices of killing one J. R. Giles, on February 6, 1960. Upon conviction the appellee was confined in the Tennessee State Penitentiary.

The appellee, after exhausting his remedies by direct appeal and habeas corpus in the state courts of Tennessee, petitioned the United States District Court for the Middle District of Tennessee, Nashville Division, for a writ of habeas corpus. The district judge granted the appellee a hearing and upon the evidence adduced determined that a confession, admitted into evidence at the trial was coerced and involuntary. The court held that the conviction and judgment obtained by use of these statements were obtained without due process of law and that the judgment was therefore void. The judge then ordered the appellee released from further custody within ten days. The state of Tennessee appealed in the name of Wilburn C. Johnson, Warden, Tennessee State Penitentiary.

Counsel for the state disagree with the conclusion of the district judge but concede that there was evidence to support his findings and that they are not clearly erroneous. We are likewise of the opinion that the findings and conclusion of the district judge are supported by the evidence.

The argument is now advanced on behalf of the state that the appellee through his counsel, privately employed, waived the right to now object in this proceeding to the admission of the confession into evidence at the trial. In support of this argument, it is claimed that appellee's counsel did not object at the trial to the introduction of the statements at the time they were offered into evidence.

This defense to the action in habeas corpus was not made in the District Court either by pleading or argument. Generally this Court will not consider questions on appeal that were not first heard and determined by the trial court. Duignan v. United States, et al., 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996; Blair, Commissioner, v. Oesterlein Machine Company, 275 U.S. 220, 225, 48 S.Ct. 87, 72 L.Ed. 249; Burnet, Commissioner v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; General Utilities & Operating Co. v. Helvering, Commissioner, 296 U.S. 200, 206, 56 S.Ct. 185, 80 L.Ed. 154; Helvering, Commissioner v. Salvage, 297 U.S. 106, 56 S.Ct. 375, 80 L.Ed. 511; Helvering, Commissioner v. Tex-Penn Oil Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755; Helvering, Commissioner v. Wood, 309 U.S. 344, 60 S.Ct. 551, 84 L.Ed. 796.

A coerced confession is a violation of a constitutional right. Lee v. State of Mississippi, 332 U.S. 742, 745, 68 S.Ct. 300, 92 L.Ed. 330; Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Canty v. State of Alabama, 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988; White v. State of Texas, 309 U.S. 631, 60 S.Ct. 706, 84 L.Ed. 989, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342; Lomax v. State of Texas, 313 U.S. 544, 61 S.Ct. 956, 85 L.Ed. 1511; Vernon v. State of Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, 327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667; Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 12 L.Ed.2d 908; Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. Constitutional rights cannot be waived without a knowledge and understanding of them and without a clear and voluntary intention to waive them. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680, reh. den. Kretske v. United States, 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222; Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 277. It is not necessary to decide in this proceeding whether the mere failure to make an objection would constitute a waiver of a constitutional right.

An examination of excerpts from the transcript of the record of the trial submitted to the District Court by stipulation of counsel, discloses that an objection was made to the introduction of the alleged confession. Bob Cooley, Sheriff of Monroe County, was asked if Dupes, the appellee, had made a confession. The sheriff answered that he had. He was then asked if Dupes repeated this statement in the presence of his co-defendant Kirklan...