Townsend v. Henderson

• Decision Date: 26 December 1968
• Docket Number: No. 18516.,18516.
• Parties: Thomas TOWNSEND and Roosevelt Terry, Petitioners-Appellants, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

405 F.2d 324 (1968)

Thomas TOWNSEND and Roosevelt Terry, Petitioners-Appellants, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.

No. 18516.

United States Court of Appeals Sixth Circuit.

December 26, 1968.

B. Percy Magness (Court appointed), Winchester, Goff, Winchester & Walsh, Memphis, Tenn., on brief for appellants.

James M. Tharpe, Special Counsel, State of Tennessee, Memphis, Tenn., on brief for appellee; George F. McCanless, Atty. Gen. and Reporter, State of Tennessee, of counsel.

Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.

COMBS, Circuit Judge.

In 1958, several prisoners attempted to escape from Fort Pillow Prison Farm in Tennessee. The appellant Terry and others, whose identity is not important here, attempted to overpower Deputy Warden Hunt in his office, apparently with intent to use him as a hostage. Appellant Townsend was also involved. After a brief struggle, the rebellious prisoners were subdued and the uprising was quelled. One prisoner was killed; Terry was knocked unconscious by a blow on his head and placed in a solitary confinement cell; others believed to be involved in the insurrection were placed in close confinement.

For their part in the riot, Terry and Townsend were indicted under T.C.A. § 41-708¹, found guilty by a jury and sentenced to life imprisonment. No direct appeal was taken from the judgments of conviction. Habeas corpus relief was denied by the Supreme Court of Tennessee in 1961. This Court granted habeas corpus relief in 1965 on the ground that appellants had been denied effective assistance of counsel. Townsend v. Bomar, 6 Cir., 351 F.2d 499. In the earlier case of Townsend v. Bomar, 6 Cir., 331 F.2d 19 (1964), this Court had directed the District Court to hold an evidentiary hearing.

On a second trial, appellants again were convicted and again were sentenced to life imprisonment. The Supreme Court of Tennessee affirmed. Appellants then filed in the District Court habeas corpus petition based on the grounds here involved. The petition was denied, and for the third time appellants are before this Court.

Presented for consideration are three issues: 1) Were members of the Negro race systematically excluded from the grand jury which indicted appellants?²

2) Was an oral confession by appellant Terry properly admitted into evidence?

3) Was Terry's co-defendant Townsend prejudiced by admission of Terry's confession which also incriminated him? All of these issues were properly raised at appellants' second trial in the Tennessee state court and in the habeas corpus proceedings in the District Court.

We consider first whether Negroes were systematically excluded from the grand jury which indicted appellants. They were indicted by a grand jury for Lauderdale County, Tennessee, on October 6, 1958. It was established at an evidentiary hearing conducted by the District Judge that no Negro had sat on a grand jury in Lauderdale County from 1933 through 1957. There is evidence, however, of a change of policy and that commencing with the year 1958 Negroes were not excluded from jury service in Lauderdale County. There is testimony, unsubstantiated but not specifically denied, that Negroes did serve on the jury panel from which the grand jury was drawn for the October, 1958 term. It is clear that Negroes were not excluded from the petit jury which decided appellants' case at their second trial. The District Judge's opinion states that at least four Negroes served on that jury. At another place in the record reference is made to six Negro members of the petit jury.

It is settled law that systematic exclusion of members of any race or ethnic group from either a grand jury or a trial jury deprives those excluded of equal protection of the law; and any member of the excluded group indicted or convicted by a jury so constituted is entitled to relief. Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032 (1964); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879).

If Negroes were not excluded from the jury panel from which the grand jury was drawn, the mere fact that no Negro served on the grand jury is not sufficient proof that Negroes were systematically excluded. Anderson v. Johnson, 371 F.2d 84 (6th Cir. 1966).³ See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

Both the Supreme Court of Tennessee and the District Court have found that appellants failed to establish systematic exclusion of Negroes from the grand jury which indicted them. Our rule is that the District Court's finding on this issue, as on any other factual issue, will not be set aside unless clearly erroneous. Anderson v. Johnson, supra. We have examined the original record in this case and are unable to say from our review of the evidence that the finding of the District Court is clearly erroneous. We hold therefore that appellants' reliance on this issue is misplaced.

We look now to the issue of Terry's confession. The confession was oral and, according to Deputy Warden Hunt, was made on the day following the riot. During the course of an investigation being made by Hunt, he approached Terry then in a solitary confinement cell and asked him about the riot. Hunt testified:

"I asked him what part Townsend and himself or Terry and himself sic and Townsend and Muse and Sharp and Buxton, what part they had played in this affair that happened the day before; and Terry said that Townsend and Muse and Sharp and himself had planned to take charge of that office and escape and take me with them."⁴

The conversation between Hunt and Terry was very brief. Terry was not warned of his right to remain silent, of his right to counsel, or that any statement made by him might be used in a subsequent criminal investigation. This last factor has more than usual significance because there is indication in the record that past incidents of this nature had been handled internally by prison officials. Terry denied making any statement but we have no doubt the statement was made as related by Deputy Warden Hunt.

The District Judge held that Terry's confession was voluntary and could be considered against him although the jury was admonished not to consider it against Townsend.

In testing the voluntariness of the confession, it is necessary to look to the conditions under which it was made. Terry was an illiterate youth of nineteen who had been in prison about two years, serving a sentence of three-to-five years. He was in solitary confinement and was suffering from a head wound received the preceding day which had rendered him unconscious and for which he had received medical treatment during the interim. According to Terry, when a prisoner was subjected to solitary confinement, he was stripped of his clothes and placed in a dark cell on a diet of bread and water. The cell contained only the most primitive sanitary facilities and a board for a bed. State witnesses did not attempt to describe the conditions of Terry's confinement, so we must accept his testimony on this subject as true. Moreover, since solitary confinement for prisoners is considered additional punishment, it is common knowledge that the solitary cells are not designed for comfort.

Appellants' counsel relies on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as authority for his argument that Terry's confession was involuntary. We think the rule of Escobedo, which requires that a person being interrogated by police authorities be advised of his right to counsel is applicable here, but not decisive. Terry was faced with stark realities, not with the question of fringe benefits. In his world as viewed through the bars of his dark cell, the right to counsel was of secondary importance. His mind had to be on more pressing matters: how long would he be held in solitary confinement; when would he receive further medical treatment if that was required; when would his diet of bread and water be supplemented; and what additional punishment would be imposed on him. Since these were factors which Terry had to consider, they are also factors which must be considered by us in determining whether his confession was voluntary.

The Tennessee rule in regard to voluntariness of a confession, was stated by the Supreme Court of Tennessee in its consideration of this case:

"In short, the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort; and, of course, whether the confession was obtained by coercion or improper inducement can be determined only by an examination of all the attendant circumstances."

This is the same test, and even the same words used by the Supreme Court in Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).

In Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 86 L.Ed. 166 (1941), the test is said to be whether the accused was deprived of his "free choice to admit, to deny, or to refuse to answer."

We reach the inevitable conclusion under any of these tests that Terry's confession was not a voluntary one. Coercion that vitiates a confession can be mental as well as physical. Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L. Ed. 716 (1940). The blood of the accused is not the only hallmark of an unconstitutional inquisition. Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). Subtle pressures may be as telling as coarse and vulgar ones. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Secret and incommunicado detention are devices commonly adapted and used to extort confessions. Haynes v. Washington, supra. Solitary confinement has been equated with the rack, the screw, and the wheel as a means of compulsion used through the centuries to...