United States v. Parman

Decision Date29 September 1971
Docket NumberNo. 24526.,24526.
PartiesUNITED STATES of America v. Walter Lee PARMAN, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Walter Lee Parman filed a brief pro se.

Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, John T. Kotelly, and C. Madison Brewer, Asst. U. S. Attys., were on the brief for appellee.

Before FAHY, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

PER CURIAM:

On April 12, 1965, appellant was indicted on four counts relating to the gruesome murder of Miss Shirley Ann Cary in Washington, D. C.1 Appellant was tried to a jury, and following dismissal of counts two and three, was convicted of murder in the first degree, with a recommendation of life imprisonment, as well as assault with a dangerous weapon. On September 10, 1967, appellant was sentenced to concurrent terms of life imprisonment on the murder count and three to ten years for the assault. In a subsequent appeal appellant asserted several grounds for reversal, but this court, noting that "the scientific evidence amassed against Appellant was very strong, if not the strongest possible, outside of eyewitness testimony, needed to prove beyond a reasonable doubt that Appellant committed the crime," rejected his arguments and affirmed the conviction.2

Appellant filed, on January 22, 1970, a pro se petition for relief pursuant to 28 U.S.C. § 2255. On June 30, 1970, the District Court denied appellant's motion without a hearing. This appeal followed. We have considered all of appellant's contentions. We affirm.

Only a few of appellant's contentions warrant discussion. Invoking the well-known case of Sheppard v. Maxwell,3 appellant contends that he, like Dr. Sheppard, was denied any possibility of fair trial because of the extensive and adverse newspaper publicity surrounding his case. We have examined the record on this point, including the exhibits attached to appellant's motion as examples of what he calls a "voluminous file of newspaper clippings and detective magazine stores," and find no abuse of discretion in the trial court's denial of hearing on this point. The clippings themselves are accurate accounts of developments during the trial and are not sensational in tone. They are a far cry from baseless charges and cries for revenge that the Supreme Court found so inflammatory in Sheppard. Moreover, the record reveals a scrupulous concern on the part of the trial court for the elimination of extrajudicial influences from the jury's deliberations. A case in point is the testimony of police informer Robert E. Barnes, which was reported in the local newspapers although taken out of the jury's presence. In order to make sure that the jury would not learn the contents of this testimony, the court ordered the jury to refrain from reading any news reports, regardless of subject-matter, for the next two or three days. (Tr. 759). This instruction was given in addition to the usual instruction regarding news reports of the trial itself. We find no basis for appellant's claim of prejudice due to outside publicity.4

On another matter of substance appellant claims that the court erred in permitting the jury to hear a tape of his confession given under the influence of sodium pentothal. To avoid any misunderstanding, we should make clear that the sodium pentothal interview was not introduced for the truth of the statements made.5 It did not have evidentiary standing as an admission or confession. It rather was offered by appellant's counsel as an aid to the jury in evaluating the testimony of defense psychiatrist on the issue of defendant's mental responsibility. Before the tapes were played the court instructed the jury that they were not to consider the tapes as evidence of appellant's guilt, but only as a means of deciding the insanity issue. Furthermore, before admitting the tapes into evidence, the court received assurances from appellant's counsel that appellant had consented to the taped interview.

The decision to admit tapes of a voluntary sodium pentothal interview on the issue of insanity is an evidentiary ruling that was not even reversible error, much less a reason for invoking Section 2255. What appellant now claims is that he was coerced into this interview in violation of his Fifth Amendment rights. On his claim of coercion, appellant cites certain exhibits attached to his 2255 motion, which indicate that he may have faked the interview and lied concerning his involvement in the murder. He contends that he was forced into the interview by virtue of the fact that his counsel refused to believe that appellant had not committed the murder, and insisted that no other defense except insanity be presented at trial. Appellant also claims that his attorney's actions deprived him of effective assistance of counsel because of inadequate exploration of his defenses on the merits.

We find these arguments patently frivolous and unworthy of hearing. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Appellant's own allegations show, not coercion, but that he submitted to the interview voluntarily. And the record and files refutes the ineffective assistance contention.

In the first place, insanity was not the only defense. As our prior opinion makes clear, defense counsel not only put the prosecution to its proof, and its burden of proving guilt beyond a reasonable doubt, but vigorously interposed substantial legal objections to the admissibility of evidence obtained without a warrant.

As to the insanity defense, appellant was not necessarily in the best position to judge his own sanity under the standards pertinent in the law. And even assuming, for sake of discussion, the accuracy of the allegation that counsel advised appellant that this was the only realistic line of defense, in view of the overwhelming circumstantial evidence of appellant's guilt, the petition offers no meaningful possibility that this conclusion could be undercut on grounds of ineffectiveness of counsel.

Appellant's claim to relief is vitiated by his inability to point to some other possible ground of exculpation in the face of the evidence against him. Appellant stresses that he had wanted to bring out at trial that there had been another rape-strangling in a nearby church a few days before Miss Cary's death, but this would plainly have been inadmissible. As to appellant's charges of a lack of proper investigation by defense counsel, while a hearing is indicated when a 2255 motion is grounded upon a plausible claim of attorney misconduct, such as wrongful inducement of a guilty plea, see United States v. Simpson, 141 U.S.App.D.C. 8, 436 F.2d 162 (1970), a court cannot engage in vague speculations about the kind of "investigation" defense counsel might have made in addition to the prodigious efforts established by the record. Appellant's counsel acted well within his professional responsibility when he concluded that the most effective representation of appellant lay in focusing on an effective insanity defense. Counsel cannot be held ineffective because defendant decided to interpret counsel's guidance as inducement to simulate during the sodium pentothal interview. In sum, there is not the slightest basis in allegation of fact, as contrasted with bald conclusion, for appellant's claim of inadequate representation or coercion. Neither these nor any other of appellant's claims warrant further hearing in the District Court.

Finally, there is the matter of appointment of counsel for the 2255 motion itself, and this appeal. Appellant complains to us that he was not represented by counsel in filing his 2255 motion. The record shows, however, that on February 3, 1970, the District Court issued an order appointing Russell Carpenter, Esq. as counsel for appellant on this motion. On April 5, 1970, appellant wrote to Mr. Carpenter, expressing surprise at his appointment, and ordering him to "remove your name from the court records as my counsel as soon as humanly possible!" Appellant continued, "In your motion to the court to withdraw, you are authorized to say that I, Walter Parman, will defend and counduct my complaints in person without the assistance of counsel." Two days later, the District Court issued an order vacating Mr. Carpenter's appointment and appointing Paul McArdle, Esq. as counsel in his place. On April 9, 1971, Mr. McArdle asked permission to withdraw from the case on the basis of appellant's clear intention to proceed pro se. The order vacating his appointment was issued on April 28. Appellant is in no position now to complain of lack of representation in the District Court.

We are satisfied that appellant was not hindered in the presentation of his claims on appeal through lack of representation by counsel. He is confined on this appeal to the...

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8 cases
  • In re D.T., No. 06-FS-979.
    • United States
    • D.C. Court of Appeals
    • July 30, 2009
    ...bit his victim with his teeth. Parman v. United States, 130 U.S.App. D.C. 188, 399 F.2d 559 (1968); see United States v. Parman, 149 U.S.App. D.C. 117, 118, 461 F.2d 1203, 1204 (1971). Appellant did not challenge the sufficiency of the evidence relating to his assault conviction, however. 7......
  • U.S v. Geraldo
    • United States
    • U.S. District Court — District of Columbia
    • December 6, 2007
    ...and fails to refute the record in this case that shows Counsel's substantial efforts on behalf of her client. See United States v. Parmnan, 461 F.2d 1203, 1205 (D.C.Cir. 1971) ("a court cannot engage in vague speculations about the kind of `investigation' defense counsel might have made").7......
  • United States v. Baugham
    • United States
    • U.S. District Court — District of Columbia
    • April 24, 2013
    ...defense counsel might have made in addition to the prodigious efforts established by the record.” Id. (quoting United States v. Parman, 461 F.2d 1203, 1205 (D.C.Cir.1971)). The record indeed establishes the efforts made by Baugham's counsel with regard to this allegation, and the Court is s......
  • U.S. v. Morrison, s. 92-3232
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 17, 1996
    ...from error or bias that success on this claim, even if it had been fairly alleged, appears extremely unlikely."); United States v. Parman, 461 F.2d 1203, 1205 (D.C.Cir.1971) ("As to appellant's charges of a lack of proper investigation by defense counsel, while a hearing is indicated when a......
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