Marion v. Harrist

Decision Date29 August 1966
Docket NumberNo. 22649.,22649.
Citation363 F.2d 139
PartiesJames Lee MARION, Appellant, v. Grady HARRIST, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Garland Casebier, Carl Steckelberg, Midland, Tex., for appellant.

Allo B. Crow, Jr., Asst. Atty. Gen., Austin, Tex., Alton R. Griffin, Dist. Atty., Lubbock, Tex., for appellee.

Before BELL and THORNBERRY, Circuit Judges, and FISHER, District Judge.

GRIFFIN B. BELL, Circuit Judge:

Appellant is under a death sentence for murder. He was charged with bludgeoning Mrs. Fred Turner to death at her home in Midland County, Texas on October 29, 1963. Venue of the case was transferred by the state district court on its own motion from Midland County, Texas to Lubbock County, Texas. The jury returned a verdict of guilty on a plea of not guilty, and also found that appellant was sane at the time the act was committed and at the time of trial. The Texas Court of Criminal Appeals affirmed the judgment of conviction. Marion v. State of Texas, 1964, 387 S.W.2d 56. That court also denied two motions for rehearing. This appeal followed the denial of his petition for a writ of habeas corpus after a plenary hearing in the Federal District Court.

Mrs. Turner was alone in her home in Midland, Texas on the night in question. She was sleeping in an upstairs bedroom with the door locked. Her neighbors heard screams shortly after 4:00 a. m. The police were called and reconnoitered the area without success. They did not go into her home which occupied an entire block. Mrs. Turner's maid arrived shortly before 8:00 a. m. and noticed muddy tracks both outside and inside the house and that the drapes and venetian blinds were in a different position from the night before. This alarmed her to the extent that she went to a neighbor's house to call Mrs. Turner's son-in-law and daughter. The sheriff was also called at about the same time. The son-in-law, daughter and maid entered the home a few minutes later. The son-in-law and maid found Mrs. Turner's body upstairs. They went outside the house almost immediately to meet the sheriff and his deputy. Mrs. Turner's daughter was left alone in the library. A man, identifed by her at the trial as appellant, walked in on her in the library and struck her on the head with a pistol. The sheriff, his deputy and the son-in-law walked in at this time. The man, also identified by them as appellant, held the gun on them and escaped. The maid and yard man were outside and identified appellant as the man escaping.

Appellant was found in the attic of a nearby building in Midland shortly before noon. He was armed with a pistol. He had a purse which belonged to Mrs. Turner in his pocket when he was seen in the house. An identification holder containing a picture of Mrs. Turner was found in a room under the attic where he was apprehended. Buttons which were missing from his shirt, and which matched those left on his shirt, were found in the house near the body of Mrs. Turner. A hole had been knocked in the door to Mrs. Turner's bedroom so that it might be unlocked. A crowbar was found near the door. Despite this and other evidence connecting appellant to the crime, two written incriminating statements were taken from him. The first was taken shortly after he was arrested, and prior to his arraignment at 3:50 p. m. on the same day.

With respect to the first statement, there is ample evidence that appellant was advised by the police that it was not necessary for him to make a statement, that he might remain silent, and that any statement made might be used against him in court, and that he was also advised that he could obtain his own counsel. He had prior burglary convictions and had used a Midland lawyer on the occasion of the disposition of four separate indictments for burglary. It was suggested to him that he call this same lawyer. The evidence was that he stated that he did not want a lawyer. There was a telephone in the room where he was being interrogated and the evidence was that he was offered the use of the telephone to call the lawyer.

Two days later appellant refused to give a second statement when requested to do so by the district attorney. Fifteen days later appellant did give a second statement which cleared up some inconsistencies between the first and some of the evidentiary facts. The evidence was that he was also offered a lawyer on this occasion but he stated that he did not wish counsel. One of the police officers had asked him to give the second statement and he stated that he would think about it. He, in fact, gave the statement two days later.

The court appointed trial counsel for him two or three days thereafter on the basis that he was an indigent person. There is no evidence that he was ever advised prior thereto that he was entitled to the appointment of counsel without charge. No contention whatever is made that he was coerced into giving the statements or that his will was in anywise overborne.

Subsequent to his trial in March 1964, the case of Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, was decided, and appellant predicates his claim to relief on the proposition that he was entitled, under that authority, to be advised of the right to the assistance of court appointed counsel during the times when he made the incriminating statements. It cannot be disputed that the investigation, at the time these statements were made, had reached the accusatory stage within the meaning of Escobedo. However, we hold the Escobedo doctrine inapplicable and affirm.

Escobedo applied the right of counsel to the interrogation stage of criminal investigations. It followed from this application that incriminating statements were inadmissible where, as was the case there,

"* * * the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent * * *" 378 U.S., at 490-491, 84 S.Ct. at 1765.

The Supreme Court spelled out the bare bones holding of Escobedo in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, by laying down conditions precedent to the use of in-custody confessions obtained after police interrogation. To guarantee full effectuation of the privilege against self-incrimination the court said:

"* * * the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he
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  • Labat v. Bennett
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 30, 1966
    ...on another day. On the question of piecemeal appeals see Paige v. Potts, 5 Cir., 1965, 354 F.2d 212, Footnote 2; and cf. Marion v. Harrist, 5 Cir., 1966, 363 F.2d 139, where at least one constitutional question was held out for future The only question for decision, assuming no waiver, and ......
  • Marion v. Beto
    • United States
    • U.S. District Court — Northern District of Texas
    • July 30, 1969
    ...his Petition for a Writ of Habeas Corpus, which was denied May 5, 1965. The Court of Appeals for the Fifth Circuit affirmed, Marion v. Harrist, 363 F.2d 139, and certiorari was denied by the United States Supreme Court, 386 U.S. 934, 87 S.Ct. 960, 17 L.Ed.2d 807. Some of the grounds alleged......
  • Marion v. Beto
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 4, 1971
    ...for writ of habeas corpus.1 A prior appeal to this Court from a district court denial of habeas relief is reported as Marion v. Harrist, 5 Cir. 1966, 363 F.2d 139, cert. denied 386 U.S. 934, 87 S.Ct. 960, 17 L.Ed.2d 807. Both petitions stem from the petitioner's conviction for murder and re......
  • Boulden v. Holman
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 3, 1967
    ...363 F.2d 822 (5th Cir. 1966); Lyles v. Beto, 363 F.2d 503 (5th Cir. 1966); Gamble v. Beto, 363 F.2d 831 5th Cir. 1966); Marion v. Harrist, 363 F.2d 139 (5th Cir. 1966). 3 Johnson et al. v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Marion v. Harrist, 363 F.2d 1......
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