491 F.2d 1213 (5th Cir. 1974), 72-2481, Shuler v. Wainwright

Docket Nº:72-2481.
Citation:491 F.2d 1213
Party Name:Robert SHULER and Jerry Chatman, Petitioners-Appellees, v. Louie L. WAINWRIGHT, Direcotor, Division of Corrections, State of Florida, Respondent-Appellant.
Case Date:March 27, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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491 F.2d 1213 (5th Cir. 1974)

Robert SHULER and Jerry Chatman, Petitioners-Appellees,

v.

Louie L. WAINWRIGHT, Direcotor, Division of Corrections, State of Florida, Respondent-Appellant.

No. 72-2481.

United States Court of Appeals, Fifth Circuit.

March 27, 1974

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Robert L. Shevin, Atty. Gen., Tampa, Fla., Gordon G. Oldham, Jr., Leesburg, Fla., Dan R. Warren, Daytona Beach, Fla., for respondent-appellant.

Tobias Simon, Elizabeth J. duFresne, Miami, Fla., Jack Greenberg, Charles S. Ralston, Jack H. Himmelstein, New York City, Anthony G. Amsterdam, Stanford University Law School, Stanford, Cal., for petitioners-appellees.

Before COLEMAN, AINSWORTH and DYER, Circuit Judges.

COLEMAN, Circuit Judge:

This is an appeal from a judgment granting habeas corpus relief to Robert Shuler and Jerry Chatman, Shuler v. Wainwright, 341 F.Supp. 1061 (M.D., Fla., 1962). In part, we reverse the judgment of the District Court and we remand the remainder for further proceedings.

In Lake County, Florida, on the night of March 10, 1960, a fifty-six year old spinster, who lived alone, was driven from her home by burglarious intruders, cruelly beaten, and brutally raped. A doctor testified that she was incompetent during her hospitalization for the injuries sustained in the attack and she was shortly thereafter committed to a mental institution.

The state trial transcript reflects evidence abundantly supporting the guilty verdict. L. V. Summers testified that he accompanied the defendants to the solitary home and remained there for part of the housebreaking activities, but abandoned the enterprise before the rape was committed, waiting a short distance away for his companions. He further testified that when Shuler and Chatman rejoined him in about half an hour they said 'they had to kill her' but they got 'it'. Obviously, the victim of the attack was either unconscious or so comatose that the assailants thought they had, in fact, killed her. She managed to walk, however, to a neighbor's home, about half a mile away, where she collapsed in a pool of blood, and the officers were called. Upon her arrival at the hospital she was promptly examined by a doctor, who told the jury that her sexual organs were severely torn, that she was bleeding from that region, and that he found live male sperm therein. Moreover, her skull had been laid bare by a stroke from some blunt object, ribs were broken, and teeth had penetrated the cheeks. There was much other proof, including the confessions of the defendants which are not at issue in this appeal. The defendants offered no testimony. Defense counsel made no argument for a verdict of not guilty but offered an eloquent plea for mercy, that is, that the jury should not assess the death penalty. 1

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The convictions were affirmed on direct appeal by the Supreme Court of Florida, 132 So.2d 7 (1961). The Court held that the evidence had established the corpus delicti and that the confessions were voluntarily made. 2 These were the only issues decided.

On September 25, 1962, represented by counsel, the convicts filed a new petition for habeas corpus relief, which the Supreme Court of Florida ultimately rejected, Shuler and Chatman v. State, 161 So.2d 3 (1964), of which more will be said later in this opinion.

On May 28, 1964, still represented by counsel, Shuler and Chatman filed a petition for federal habeas corpus relief. It was this petition which resulted, approximately eight years later (May 4, 1972), in the judgment now presented for review.

By agreement of the parties, the District Court rendered its decision solely on the state court records.

The issues will be considered and decided in the order of their decision below. In so doing, we are governed by the provisions of 28 U.S.C., § 2254(d) which provides that a determination after a hearing on the merits of a factual issue, made by a state court of competent jurisdiction, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct. Under this statute the burden was on the petitioners to establish by convincing evidence that the state court determination was erroneous, LaVallee v. Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).

I

Were the Petitioners Convicted in Violation of the Due Process Clause of the Fourteenth Amendment through the State's Knowing and Deliberate use of Faked Plaster Foot Casts as Evidence?

This allegation caused the Supreme Court of Florida to appoint retired State Circuit Judge, L. L. Parks, as a Special Commissioner to try the facts, make findings of fact, and report. At the close of a two day hearing, and after argument of counsel, the Commissioner stated verbally that the allegations with reference to faking the plaster casts of the footprint impressions at the scene of the crime had not been proved, that he did not believe the testimony offered on behalf of the petitioners, and that he did believe the testimony offered on behalf of the State. 3 He told counsel for the petitioners, 'I think you made out a good case on paper but you did'nt make it when it came to the testimony'.

Subsequently, the Commissioner filed his written report with the Supreme Court of Florida, which we do not repeat here since it is set forth in full, Shuler v. State, 161 So.2d 3 (Fla., 1964).

The Supreme Court of Florida approved the report, held that the petitioners had failed to carry their burden, that the record evidence was ample to sustain the findings of fact and conclusions drawn by the Commissioner, and dismissed the petition for the writ of habeas corpus.

The District Court Discussed at length, 341 F.Supp. 1067-1070, the evidence offered on behalf of the petitioners

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to support their contention that the footprint casts were faked, but neither mentions nor analyzes the proof offered on behalf of the State, in negation of the alleged fakery. The District Court opinion accepts altogether the testimony which the trial Commissioner expressly declined to believe; it ignores the testimony which the Commissioner specifically stated that he did believe.

Remembering that the petitioners had the burden of establishing by convincing evidence that the state court decisions were erroneous, LaVallee v. Rose, supra, we now proceed to a consideration of that question.

Some months after these petitioners had been tried and convicted, two former Lake County deputy sheriffs, Thomas Ledford and Noel Griffin, who had been fired from their positions, made the public accusation that the plaster of paris footprint casts introduced at the original state court trial had been fraudulently manufactured by deputy sheriff L. G. Clark in his own back yard. The District Court opinion does not mention that neither Ledford nor Griffin claimed to have seen this done but asserted only that Clark had told them he did it. At the Commissioner's hearing, Ledford, who had testified at the trial of the defendants, was again a witness. He swore that there were only three partial footprints at the crime scene when he and Griffin arrived, that it had rained that night, which would have substantially erased any footprints except the three which he had covered with pots and pans. He further testified before the Commissioner that what he covered 'was a definite heel print', 'a kind of a half track', and 'a partial print, just a toe print from about the arch of the foot on out'. This was inconsistent with the testimony given at the trial of the defendants, in which Ledford told of covering the tracks with pots and pans, making no mention of their quality.

The former deputy, Griffin, likewise testified at the Commissioner's hearing that there were only three partial footprints at the crime scene when he and Ledford arrived, that it rained after the prints were covered, that the victim had chickens which would have destroyed any other prints, and that the deep sand around the house would not admit of perfect prints. Therefore, Griffin testified that the footprint casts introduced at the trial could not have possibly been made at the crime scene.

Also, at the hearing before the Commissioner, two special agents of the F.B.I. gave it as their opinion that for various reasons, set forth in the opinion of the District Court, the plaster of paris foot casts could not have been made at the crime scene or did not fit the shoes of the defendants.

The opinion of the District Court, granting habeas relief, 341 F.Supp. 1067-1070, sets forth all of the above testimony and accepts it at face value as if it had not been contradicted.

There was no discussion of the testimony offered before the Commissioner on behalf of the State on which the Commissioner based his rejection of the testimony for the petitioners and his acceptance of the testimony for the State. Under the procedure prescribed by LaVallee we must analyze that evidence.

Assistant State's Attorney John W. McCormick 4 testified that he was in court at Brooksville, Florida, when notified of the attack on Charlotte Wass. A highway patrol car conveyed him from Brooksville to Okahumpka, where he was picked up by deputy sheriff Thomas Ledford. He definitely recalled being told by Mr. Ledford that there were numerous footprints at the scene. When Attorney McCormick arrived at the scene, 'there were tracks underneath the windows, * * * and then tracks leading from the window going out and turning, * * * and one track dug in like this'. That same day Mr. McCormick saw the casts made of those tracks and was informed at that time that the shoes worn by the defendants

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when arrested did not fit the casts. He advised the officers...

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