390 F.2d 261 (5th Cir. 1968), 24326, State of Texas v. Payton

Docket Nº:24326.
Citation:390 F.2d 261
Party Name:The STATE OF TEXAS and Dr. George J. Beto, Director, Texas Department of Corrections, Appellants, v. Melvin Alexander PAYTON, Appellee.
Case Date:February 12, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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390 F.2d 261 (5th Cir. 1968)

The STATE OF TEXAS and Dr. George J. Beto, Director, Texas Department of Corrections, Appellants,

v.

Melvin Alexander PAYTON, Appellee.

No. 24326.

United States Court of Appeals, Fifth Circuit.

February 12, 1968

Page 262

Lonny F. Zwiener, Robert E. Owen, Asst. Attys. Gen., Austin, Tex., for appellants.

J. R. Ramsey, Houston, Tex., for appellee.

Before BROWN, Chief Judge, SIMPSON, Circuit Judge, and SUTTLE, District Judge.

SIMPSON Circuit Judge:

We review on appeal a judgment of the District Court granting the Writ of Habeas Corpus upon the petition of Payton, a State prisoner under sentence of death following his conviction of murder in the first degree, discharging him from the custody of the respondent, Dr. Beto, Without prejudice to the right of the State of Texas to retry petitioner upon the indictment within sixty days form the date of judgment or within sixty days of final decision on appeal in event of appeal. We conclude that the writ was improvidently granted, reverse the District Court and remand for dismissal by the lower court without prejudice to Payton's right to seek relief in the Texas court where he was originally tried and convicted.

The appellee (hereinafter Payton) was tried February 3, 1965, in the Criminal District Court No. 4 of Harris County, Texas, for murder with malice and pursuant to the jury's verdict was sentenced to death. On November 24, 1965, this conviction was affirmed by the Court of Criminal Appeals of Texas. 1 His application for Writ of Habeas Corpus to the Texas Court of Criminal Appeals was denied without hearing May 3, 1966. The Petition for Writ of Habeas Corpus to the United States District Court for the Southern District of Texas followed on May 9, 1966. After response to the petition by appellant a full plenary hearing was held on June 14, 1966, evidence was presented and argument of counsel heard. Post-hearing briefs were filed. Final judgment granting the Writ of Habeas Corpus was rendered October 27, 1966. The District Court filed a memorandum opinion which is unreported. State remedies available 2 at the time 3 were exhausted before the application for habeas was made to the court below. Indeed, Texas has not asserted the contrary, either by brief or upon oral argument. Despite this posture of the case, we conclude (Part II) that Payton should be required to pursue the presently available Texas post-conviction procedure. (See footnote 3, supra).

I.

The single question presented on this appeal is whether or not an oral

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confession made by Payton at the time of his arrest was improperly admitted at his State trial in denial of his Fourteenth Amendment rights of due process and equal protection of the law. The District Court reached its conclusion, not on the basis that the oral confession was coerced, upon consideration of the 'totality of circumstances', 4 but rather upon the narrow ground that Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), stands for the proposition that the failure to warn a suspect of his 'absolute constitutional right to remain silent', regardless of any other circumstances, vitiates a confession later used against him in a criminal trial, as violative of Fifth Amendment rights enforced against the states by the Fourteenth Amendment. 5 As the quotation

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(Footnote 5) from the District Court's memorandum indicates, Payton claimed other violations of constitutional rights arising from the trial which were not considered by the court below. Summarized, these were:

(1) Inflammatory arguments to the jury by the prosecutor;

(2) Denial of the right of confrontation by the acceptance of the testimony of the Harris County Medical Examiner as to the autopsy of the deceased rather than requiring the State to produce the physician who actually performed the autopsy;

(3) The exclusion of all prospective jurors who indicated scruples against the infliction of the death penalty;

(4) The denial of the motion for new trial on the grounds of newly discovered evidence relating to the petitioner's prior history of mental disorder;

(5) The receipt in evidence of the alleged weapon, a pistol found as a result of information supplied by a person not called as a witness, but identified by Payton in his oral statement at the time of arrest as the weapon used to commit the homicide;

(6) The reception in evidence of the oral statement prior to Payton being informed of his rights, including his right to remain silent as well as his right to counsel, and before the witness to the statement, a deputy sheriff, was allowed to be examined outside the presence of the jury to determine the admissibility of such statement, either as to law or as to its voluntary nature;

(7) Claimed deprivation of due process of law by the refusal of the trial court to provide Payton, an indigent person, the benefit of psychiatric evaluation by a physician other than one dependent upon the State for his salary (a county psychiatrist); and

(8) Other related and peripheral claims of violation of due process, some of which may have and others of which clearly do not have the constitutional import.

We reach the conclusion that the granting of the writ upon the narrow ground cited by the trial judge cannot be sustained. We reach this decision upon careful examination of the Escobedo opinion and upon close study of the interpretation of the Escobedo holding in later Supreme Court cases, specifically Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967).

We agree with the trial judge that this case, tried in February 1965 is governed by Escobedo but not by Miranda. Johnson v. State of New Jersey, supra.

First of all, the quotation from pages 490-491 of 378 U.S., 84 S.Ct. 1758 Escobedo (see Footnote 5) does not warrant the flat assertion that 'Justice Goldberg, in delivering the opinion in Escobedo, specifically stated that a suspect must be warned of his 'absolute constitutional right to remain silent' if any statement made by him is to be used in a criminal trial.' Actually, the reference in Escobedo to the 'absolute constitutional right to remain silent' is coupled with the statement that the suspect after the inquiry focused upon him and he had been

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taken into police custody, had requested and been denied an opportunity to consult with his lawyer. The significant language is 'the accused has been denied 'the Assistance of Counsel ". The reference to the Fifth Amendment right to remain silent is present, but present only as coupled with the holding that the Sixth Amendment right to the assistance of counsel was violated.

The validity of this reading is clarified by reference to the introductory paragraph of the Court's opinion as follows (page 479, of 378 U.S. at page 1759 of 84 S.Ct.):

'The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner's request to consult with his lawyer during the course of an interrogation constitutes a denial of 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. 335, 342, (83 S.Ct. 792, 795, 9 L.Ed.2d 799,) and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation.'

From this, and from the concluding sentences at page 492 of 378 U.S., at page 1766 of 84 S.Ct. we conclude that Escobedo may not be construed as an enunciation of Fifth Amendment rights, its ambit being limited to rights arising under the Sixth Amendment. The concluding sentences referred to are as follows:

'Nothing we have said today affects the powers of the police to investigate 'an unsolved crime,' Spano v. (People of State of) New York, 360 U.S. 315, 327, (79 S.Ct. 1202, 3 L.Ed.2d 1265) (Stewart, J., concurring), by gathering information from witnesses and by other 'proper investigative efforts.' Haynes v. (State of) Washington, 373 U.S. 503, 519 (83 S.Ct. 1336, 10 L.Ed.2d 513). We hold only that when the process shifts from investigatory to accusatory-- when its focus is on the accused and its purpose is to elicit a confession-- our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.' (Emphasis supplied)

In Miranda, on the other hand, the Court's opinion stated in its introductory paragraph (384 U.S., at page 439, 86 S.Ct., at page 1609):

'More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.' (Emphasis added)

The Miranda opinion refers to the varying conclusions reached by state and federal courts in assessing the implications of Escobedo, the debate by legal scholars tracing its 'ramifications and underpinnings', and continues:

'We granted certiorari in these cases, in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow.

...

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