Arrington v. Maxwell

• Decision Date: 05 May 1969
• Docket Number: No. 18569.,18569.
• Citation: 409 F.2d 849
• Parties: Joseph ARRINGTON, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

409 F.2d 849 (1969)

Joseph ARRINGTON, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee.

No. 18569.

United States Court of Appeals Sixth Circuit.

May 5, 1969.

James R. Willis, Cleveland, Ohio, for appellant.

Leo J. Conway, Columbus, Ohio, for appellee, William B. Saxbe, Atty. Gen. of Ohio, Mark Sladoje, Jr., Asst. Atty. Gen., Columbus, Ohio, on brief.

Before O'SULLIVAN, EDWARDS and PECK, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Joseph Arrington appeals from an order of the United States District Court for the Southern District of Ohio, Eastern Division, denying his petition for a writ of habeas corpus. Arrington was indicted on September 11, 1962, for the crimes of unlawful entry into a financial institution, burglary, attempting to force entry into a bank vault and possession of burglary tools in violation of Revised Code of Ohio, §§ 2907.141, 2907.10, 2907.19 and 2907.11.

In February 1963, while incarcerated in the Cuyahoga County, Ohio, jail prior to trial, appellant sent a message to the chief of the Cleveland burglary squad that he wanted to speak to him privately. This conference led to two additional conferences with policemen and with the Prosecuting Attorney, both at the instigation of appellant. During these conferences, after being reminded that he was represented by counsel and had a right to remain silent, appellant indicated that he did not desire the presence of his counsel and made certain admissions or confessions. He expressed his motivation for this conduct as a desire to get revenge on one Dick Stewart who had aided in the apprehension of Arrington after he had fled to Alabama while free on bond awaiting trial in the case at bar. See United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965). His admissions included implication of Stewart in described criminal activities.

When the prosecution offered these admissions at Arrington's jury trial, the Common Pleas judge, out of the presence of the jury, conducted a hearing to test their voluntariness. He found that they were voluntary, but took occasion to say, not in the presence of the jury, that the burden of proving involuntariness was upon defendant Arrington. He found that Arrington had waived his right to the presence of counsel at the involved interviews. The admissions were accordingly entered into evidence and the question of their voluntariness was submitted to the jury under what we consider the proper instructions.

Appellant was convicted; the conviction was affirmed by the Court of Appeals for Cuyahoga County and subsequently by the Ohio Supreme Court. State v. Arrington, 2 Ohio St.2d 172, 207 N.E.2d 557 (1965), affirmed on rehearing, 3 Ohio St.2d 61, 209 N.E.2d 207 (1965), cert. denied sub nom. Arrington v. Ohio, 383 U.S. 906, 86 S.Ct. 887, 15 L.Ed.2d 662 (1966). In its affirmance on rehearing, the Supreme Court of Ohio said:

"Thus, in the present case we have a situation where an accused although represented by counsel voluntarily and at his own request appeared before the prosecuting attorney without his counsel and only after a discussion of the fact that he was represented by counsel and only after he was told that anything he said could be used against him was he allowed to make a voluntary statement." 3 Ohio St.2d at 62, 209 N.E.2d at 208.

Appellant then filed a petition for a writ of habeas corpus in the United States District Court. After hearing, the District Judge entered the following order:

"It is clear that Judge Corrigan\'s statement of law with respect to the burden of proof of the voluntariness of the confession is in error. The burden is on the prosecution to show that a confession was voluntary; a defendant does not have the burden of proving that a confession is involuntary.

* * * * * *

"Accordingly, it is ORDERED that petitioner be remanded to the Common Pleas Court of Cuyahoga County to afford the State of Ohio an opportunity to allow the trial court to conduct an independent determination of the voluntariness of petitioner\'s admissions introduced at his trial, or in the alternative, to grant petitioner a new trial."

Upon such remand, the Common Pleas trial judge reexamined and considered the evidence originally offered (in the jury's absence) to support the voluntariness and admissibility of Arrington's alleged admissions. He tested these questions upon the assumption that the burden was upon the prosecution to prove the voluntariness of such admissions and determined that "the State of Ohio has proved beyond a reasonable doubt that the admissions of the defendant were voluntary." He noted that he had "taken into consideration all of the facts and circumstances in evidence concerning and surrounding the giving of the statements, admissions and confessions." He concluded:

"The evidence further shows the accused voluntarily and specifically wanted to talk to Mr. Corrigan¹ alone, in both instances alone, and without his counsel, and he had been advised of his right to remain silent and have counsel present and that no promises could be made; and he indicated he was still desirous of talking to the Prosecutor and police officers for the purpose to give Dick Stewart to the authorities. He then proceeded to narrate the involvement of himself and Dick Stewart and others in crime.

"I also find beyond a reasonable doubt the defendant waived his right to have counsel present intelligently, understandably and in a competent manner. His waiver was voluntary and intentional. I find that the confession was not induced by fear, threats, coercion or by promises of favor.

"I, therefore, find beyond any reasonable doubt that the confession was voluntary."

We give consideration to the following grounds for appeal: First, that the voluntariness of Arrington's alleged admissions should not have been decided by remanding the matter to the Common Pleas judge for resolution by application of proper standards of proof to the evidence offered on the questions at trial. Second, that at trial the judge should have instructed the jury specifically that before they could consider Arrington's admissions or confessions they would have to find that the government had met a burden of proving beyond a reasonable doubt that such admissions were voluntarily made. Third, that with Arrington having already been indicted and having retained counsel, statements thereafter made out of the presence of counsel should not have been received in evidence.

1. Propriety of hearing on remand to Common Pleas Court.

The District Court was correct in ruling that the Common Pleas judge erred in placing the burden on Arrington to prove the involuntariness of his admissions. Such had been the law of Ohio, but it was in conflict with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964), and Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), which held that before the issue of voluntariness of a confession can be submitted to a jury the trial judge must make his own independent determination that the confession was voluntary. We consider that under these decisions the burden of proving voluntariness of a confession is upon the prosecution.

We hold, however, that it was permissible procedure for the District Judge to remand the matter to the Common Pleas Court to have that Court determine the voluntariness of Arrington's admissions applying proper standards to the evidence that had there been received on that issue. In Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964), where it was not clear whether a state trial judge had held a proper hearing on voluntariness, the Supreme Court concluded:

"But it does not follow that the state is required to order a new trial. As we held in Jackson, supra, where a state defendant has not been given an adequate hearing upon the voluntariness of his confession, he is entitled to a hearing in the state courts under appropriate procedures and standards designed to insure a full and adequate resolution of this issue." 379 U.S. at 45, 85 S.Ct. at 176.

In Jackson v. Denno, supra, the Court said:

"However, we think that the further proceedings to which Jackson is entitled should occur initially in the state courts rather than in the federal habeas corpus court." 378 U.S. at 393, 84 S.Ct. at 1789.

See also Henry v. Mississippi, 379 U.S. 433, 452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

At the District Court remand hearing Arrington asked that he be granted the right to cross-examine the witness who testified at the original trial on the subject of his admissions, and requested permission to offer fresh evidence upon the issue. His requests were denied.² At the state court hearing, the judge considered only the evidence which had been received and considered by him during the trial voir dire held in the jury's absence to determine the voluntariness of the admissions offered by the prosecution. We find no error in this regard.

Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L.Ed.2d 770 (1962), recited several circumstances calling for an evidentiary hearing in a United States District Court, including where "there is a substantial allegation of newly discovered evidence" and "if the state trial judge has made serious procedural errors (respecting the claim pressed in federal habeas) in such things as the burden of proof * * *." 372 U.S. at 313, 316, 83 S.Ct. at 757,...