409 F.2d 59 (5th Cir. 1968), 25284, Calloway v. Wainwright

Docket Nº:25284.
Citation:409 F.2d 59
Party Name:Frederick Keith CALLOWAY, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Appellee.
Case Date:December 20, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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409 F.2d 59 (5th Cir. 1968)

Frederick Keith CALLOWAY, Appellant,


Louie L. WAINWRIGHT, Director, Division of Corrections, Appellee.

No. 25284.

United States Court of Appeals, Fifth Circuit.

December 20, 1968

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[Copyrighted Material Omitted]

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J. Leonard Fleet, Hollywood, Fla., for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, Fla., Charles W. Musgrove, Asst. Atty. Gen., Vero Beach, Fla., for appellee.

Before BROWN, Chief Judge, [*]CLAYTON, Circuit Judge, and SCOTT, District Judge.

SCOTT, District Judge:

Appellant, who was sentenced to death in the electric chair on January 15, 1965, for murder in the first degree, seeks habeas relief from that conviction and sentence. After conviction in Broward County, Florida, upon a jury verdict, appellant sought relief in the Circuit Court by motion for a new trial, by direct appeal to the Supreme Court of Florida and by petition for rehearing in the latter Court, all of which were denied. He then filed his petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. The District Judge, on the basis of the record before the Court and a written stipulation from the pre-trial hearing, denied the relief sought. Both points raised on appeal have been argued in the Supreme Court of Florida by appeal or on petition for rehearing.

Appellant alleges two grounds of error for our consideration: First, that his conviction is constitutionally void because his repeated requests for the assistance of counsel prior to his confession were denied and his incriminating statement and all the evidence thereby obtained were admitted against him at his trial contrary to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution; second, that the prosecutor commented to the jury about his failure to testify on matters other than the voluntariness of his confession contrary to the Fifth and Fourteenth Amendments.


The first assignment of error raises the question whether, considering the totality of the circumstances from an independent examination of the whole record the appellant's statements were voluntary. Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968).

Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938).

Invariably, as the Supreme Court has pointed out, in cases involving confessions obtained through unobserved police interrogation, there is a conflict in the testimony as to the events surrounding the confessions. This case presents no exception. To resolve this evidentiary conflict a credibility determination must be made. Considering the undisputed facts, together with reasonable inferences from the testimony as set forth below, we are led to the inescapable conclusion that appellant's confession was not involuntary as a matter of law.

On September 30, 1964, Detectives Frank Troy and Richard Bryan, with other members of the Broward County Sheriff's office, went to the appellant's home for the purpose of arresting him and charging him with first degree murder in the slaying of Carl Ludwig, Jr. The intended arrest was to be made with the cooperation of Ruth Calloway, whom the appellant had identified as his wife. Troy and Bryan stationed themselves inside appellant's home to await his arrival, and other law enforcement officers were placed so that the accused would be under constant observation.

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When appellant opened the front door of his home, according to Troy, he was immediately placed under arrest and told that anything he said 'at this time could be used either for or against him'. According to Troy, on this occasion and on at least five other occasions prior to the time when appellant made any incriminating statements, he requested the opportunity to consult with counsel. Troy testified that appellant said he would not talk until he saw his lawyer. Appellant testified that he immediately asked for an attorney and that Troy told him 'you have plenty of time for a lawyer'.

Appellant was taken to the scene of the crime immediately after his arrest where he again requested an attorney. Detective Troy testified that not until appellant arrived at the Sheriff's office, located in the Broward County Court House, was he given the opportunity to contact an attorney. Appellant was placed in the interrogation room where he was told that he could make a telephone call. In the room with appellant was a telephone and a telephone directory. According to the testimony of Troy and Bryan appellant was left alone in the room for four or five minutes; this event is denied by appellant. Troy testified that when appellant was told that he could use the telephone he indicated by a shrug of his shoulders that he did not want to make a call and said that he would like to give a statement.

Shortly after the interrogation began appellant broke down and confessed. After the confession had been made orally appellant repeated the statement in the presence of other members of the Sheriff's office for the benefit of the typist who made a written record which was later signed by appellant and introduced at his trial as evidence for the State.


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