395 F.2d 958 (5th Cir. 1968), 22130, Smith v. State of Texas
| Citation | 395 F.2d 958 |
| Party Name | Joe Edward SMITH, Appellant, v. The STATE OF TEXAS, Appellee. |
| Case Date | June 10, 1968 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit |
Page 958
James J. Hippard, Houston, Tex., for appellant.
Samuel Robertson, Jr., Houston, Tex., for appellee.
Before WISDOM and GEWIN, Circuit Judges, and BREWSTER, District Judge.
BREWSTER, District Judge:
This appeal is from a judgment denying the appellant's petition for writ of habeas corpus attacking the validity of his state court conviction on the ground that there had been no determination of the voluntariness of his confession in the manner required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964).
The appellant was convicted of murder with malice aforethought and assessed the death penalty in a trial in a Criminal District Court of Harris County, Texas in April, 1960. The conviction was upheld on direct appeal. Smith v. State, 171 Tex.Cr.R. 313, 350 S.W.2d 344, cert. den. 368 U.S. 883, 82 S.Ct. 126, 7 L.Ed.2d 83 (1961). The usual course of piecemeal, post-conviction, collateral litigation of issues that followed now has the question of the validity of this conviction before this Court for the third time. The appellant here has suffered adverse decisions on his claims that his confession was involuntary as a matter of law (Smith v. Heard, S.D.Tex., 214 F.Supp. 909 (1962), affirmed, 5 Cir., 315 F.2d 692, cert. den. 375 U.S. 883, 84 S.Ct. 154, 11 L.Ed.2d 113), and that the prosecution failed to offer evidence meeting the requirements of Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654,
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and Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (Smith v. State of Texas, S.D.Tex. 225 F.Supp. 150 (1963), affirmed, 5 Cir., 329 F.2d 498). He has been blessed from the beginning with able counsel, experienced in trials of criminal cases, who have advocated his claims aggressively all the way. It finally appeared for a short time, however, that the opinion of this Court in 329 F.2d 498, above referred to, had put an end to the appellant's post-conviction litigation, for in a motion filed for a second stay of mandate on that appeal, he said:
'On 20 May 1964 this Court issued a stay of mandate in the above cause (in which the Court affirmed the District Court's denial of appellant's application for writ of habeas corpus) to enable appellant to apply for a writ of certiorari from the Supreme Court of the United States. An intensive reexamination of the law in light of the Court's opinion has convinced counsel for appellant of the futility of such application and so none has been made.'
Jackson v. Denno, decided by the Supreme Court shortly before the filing of such second motion for stay of mandate, dispelled his feeling of futility and brought about the filing of the application for writ of habeas corpus which is now before this Court.
In this case, as in Jackson v. Denno, a heinous crime was committed, and the issue of the voluntariness of the confession was raised primarily by the testimony of the accused himself.
The facts of the brutal murder for which appellant was convicted and the circumstances of the making of the confession appear fully in the opinions above stated. The appendix to Judge Noel's opinion, 225 F.Supp. 150, at 155, et seq., contains an admittedly correct detailed account of the crime. Only a brief factual summary is therefore required here.
Mrs. Bodenheimer, obviously acting under the impression that an innocent child ought to be safe on the public streets of a city that claimed to be civilized, permitted her little twelve year old boy to go for a swim on a July afternoon in 1959. He was to travel on his bicycle from his home to the pool and back. The entire route was within the city limits of Houston, Texas. The little boy lost his life under the most merciless circumstances at the hands of the appellant and four confederates on his way back home that afternoon. The murder was perpetrated in a small unoccupied metal shack located on an otherwise vacant lot in Houston. The tract was known as 'the dirt yard lot' because it had formerly served as a place to pile dirt to be sold for use around residences. The appellant and his gang knocked the Bodenheimer boy off his bicycle as he was riding along the street in the area of some unoccupied lots, and forcibly dragged him into the metal shack. When they got him inside, they stripped off all his clothes and each one of the gang committed anal sodomy upon him. One or two members of the group would hold him while another one was engaged in the act of sodomy. That process was repeated until each one of the five assailants had taken his turn. The child's resistance and screams were suppressed by constant choking of him. When the gang had finished with the boy, they stuffed his limp body into an unused ice box in the shack, closed the box and left. An all night search finally led to the discovery of the nude, lifeless body in a sitting and cramped position in a pool of blood in the box. His clothes were still on the floor of the shack and his bicycle was just outside. Injuries apparent on his neck and the upper portion of his body indicated that he had been severely choked and that his left chest had been crushed. The pathologist found that death was due to asphyxiation from suffocation 'due to pressure on the neck, and on the left chest.'
A gang of young Negroes, ranging from juvenile age to twenty-two years had been robbing newsboys at the point of a knife over an area in Houston that
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included the place where the boy was murdered. The appellant and two of his confederates were arrested and jailed in connection with some of those robberies. One of them other than the appellant readily confessed, and, in so doing, also told about killing the Bodenheimer boy. The officers had not associated them with that homicide until that time. In a short time, all of the participants made written statements to Negro detectives of the City of Houston confessing to the murder. The appellant's confession showed that he took a leading part in it.
The appellant contended that his confession was obtained as the result of threats and severe beatings. His claims were refuted by the testimony of ten witnesses, by photographs of him taken within a short time after the confession, and by the circumstances. All interviews of him by the officers were conducted in a room at the police station with the door to the hall open. Several representatives of the news media were in the hall in the area of the door at all times. One of the newsmen was in and out of the room during the interrogation. The other two, who were television cameramen, took pictures of appellant an hour or so after the confession. All three of them said they neither saw nor heard any indication of abuse. The television film which was offered in evidence was taken within about an hour after the confession was made. It showed no evidence of the swelled and lacerated lip the appellant claimed he had as a result of being struck in the face during the interrogation. All of the officers involved denied any mistreatment of the appellant. The confession was strongly corroborated. Smith v. State of Texas, 329 F.2d 498.
The evidence on the issue of voluntariness of the confession was heard in the presence of the jury. The only action taken by the Court in regard to it was to overrule without comment the objection made to its admission on the ground that it was involuntary. The question of voluntariness was submitted to the jury under a charge about which no question has ever been raised.
The confession has been heretofore upheld against claims of involuntariness as a matter of law by the Court of Criminal Appeals of Texas, by the United States District Court for the Southern District of Texas, and by this Court, but Jackson v. Denno now raises a new question.
Jackson v. Denno involved an attack upon a conviction in a New York state court where the judge was required to submit the question of voluntariness of a confession to the jury if there was a factual conflict on the issue over which reasonable men could differ. The Supreme Court of the United States held in that case that such procedure was unconstitutional because it called upon the same trier of facts to determine the questions of voluntariness and of reliability. 1 Its opinion says that in a trial of a criminal case before a jury the defendant is entitled to have the judge make a 'reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.' 378 U.S., at 391, 84 S.Ct., at 1788, 12 L.Ed.2d, at 924.
On the same day as the decision in Jackson v. Denno, the Supreme Court, in memorandum opinions in Lopez v. Texas, 378 U.S. 567, 84 S.Ct. 1924, 12 L.Ed.2d 1038, and Harris v. Texas, 378 U.S. 572, 84 S.Ct. 1930, 12 L.Ed.2d 1040, held that the procedure followed in those cases had the same vice as the condemned New York practice.
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The evidentiary hearing on the present petition for writ of habeas corpus was held at a time when the able trial judge did not have the advantage of the cases construing Jackson v. Denno which dictate our present decision here. He recognized the applicability of the Jackson v. Denno rule, but concluded that it had been met in this case. Smith v. State of Texas, 236 F.Supp. 857. The transcript of the record of the murder trial offered in the habeas corpus hearing failed to show any ruling by the trial judge on the factual issue of the voluntariness of the confession. The State of Texas attempted to defeat the Jackson v. Denno attack upon the conviction by offering evidence to the effect that the trial judge in the murder case did actually make a separate and independent determination in his own mind that the...
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