Ballard v. Johnson, 86-7393
| Decision Date | 14 July 1987 |
| Docket Number | No. 86-7393,86-7393 |
| Citation | 821 F.2d 568 |
| Parties | Bernard BALLARD, Petitioner-Appellant, v. Willie JOHNSON, Warden, Respondent-Appellee. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jean A. Webb, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before TJOFLAT, HILL and KRAVITCH, Circuit Judges.
Ballard, an Alabama inmate, was convicted of first degree murder in 1970 and sentenced to life. In 1985 he filed this pro se habeas petition alleging that the confessions used to convict him were obtained in violation of Miranda, and that he was denied the right to counsel during his interrogation. Specifically, Ballard alleged that he was interrogated for approximately one hour and fifteen minutes before he was advised of his constitutional rights, and that he was denied the right to counsel because his interrogation continued even after the sheriff's department was contacted by his attorney, who insisted the interrogation cease. 1
The material facts relating to Ballard's claims, as derived from an extensive state trial court suppression hearing, are as follows. Ballard drove up to the police station at Bayou LaBatre, Alabama at approximately 4 p.m. on October 10, 1968 and inquired about the discovery of the victim's body. He was told that Chief Investigator Thomas Deas, of the Mobile County Sheriff's Department, wanted to speak to him. He was then questioned by Deas and chief deputy Harold Donald for about twenty minutes. Ballard then allegedly asked to speak to Officer Pete Patronis, who was the uncle of the deceased. Patronis testified that he questioned Ballard alone for twenty-five or thirty minutes, during which time Ballard confessed to the killing. Another officer then entered the room, and Patronis left. Ballard then made another brief confession to the second officer. The testimony of the officers involved fixed the time of his first two confessions at roughly five o'clock.
All of the police officers present at the Bayou Labatre station testified that Ballard was advised of his rights and executed a written waiver before any questioning began, i.e., at around 4:00 p.m. However, the waiver that Ballard signed is dated October 10, at 5:15 p.m.
After Ballard's confession Patronis, Deas, and Donald transported Ballard to the Mobile County Sheriff's Department. They arrived there as early as 7:30 to 8:00 p.m. according to Donald's testimony, or as late as 8:45 p.m., according to Deas' testimony. When they arrived, Carl Booth, the district attorney for Mobile County, met with Deas, Patronis and Ballard and asked Ballard if he had been advised of his rights and had signed the waiver and Ballard told him yes. Ballard confessed again, this time in the presence of Patronis, Deas, District Attorney Booth and Sheriff Ray Bridges.
An attorney testified that he called the sheriff's office a few minutes after 9:00 p.m., was told that Ballard was being interrogated, stated that he wanted to speak with his client and wanted the interrogation to stop until he arrived. Ballard's attorney testified that when he arrived at the sheriff's office at approximately 9:38 p.m. Ballard and Deas were together in an office and it appeared the investigation was still in progress.
Ballard did not take the stand at the suppression hearing. There was therefore no testimony to contradict the police officers' version of the events surrounding his interrogation.
The state trial court denied the motion to suppress the confessions, finding they were "made voluntarily and with full knowledge and having properly signed a waiver." The court also concluded that Ballard's confession was obtained before the sheriff's department became aware that he was represented by counsel. On appeal, the Alabama Court of Criminal Appeals affirmed, finding that:
Ballard was offered no reward, or inducement for the confessions; that no physical violence was committed against Ballard; that he was not told that it would be better if he confessed; and also he was advised of his right to remain silent and to have an attorney present during the interrogations.... There was no evidence that Ballard ever asked for an attorney.
Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, 70-71, cert. denied, 291 Ala. 772, 286 So.2d 72 (1973).
The magistrate to whom Ballard's petition was referred ruled that the state court's finding that Ballard gave his confessions "having properly signed a waiver" was a finding of historical fact, and was thus entitled to a presumption of correctness. The magistrate determined that Ballard failed to present convincing proof that the state court's finding was in error. Thus, Ballard's first claim failed.
With respect to Ballard's second claim, the magistrate noted that the state record was "highly confused" regarding whether the sheriff's department knew that Ballard's attorneys were attempting to contact him during the interrogation in the Mobile. However, the magistrate relied on the state appellate court finding that "[t]here was no evidence that Ballard ever asked for an attorney." He thus concluded that Ballard's failure to request counsel defeated his attack on the Mobile confessions. Over the objections of Ballard, the district court adopted the magistrate's recommendation, and dismissed his petition. 2
Ballard argues that the state trial transcript reveals he was placed in custody at 4:00 p.m. on October 10, 1968 and interrogated until 5:15 p.m., at which time he was first advised of his rights, and signed the waiver of rights form. He therefore argues that his first two confessions should have been excluded under Miranda.
The state argues that the state trial court's finding, that the Bayou LaBatre confession followed the signing of the waiver of rights form, is a finding of historical fact entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). The state notes that all verbal testimony at the state trial court suppression hearing indicated the waiver was executed prior to Ballard's confession. The state acknowledges that this sequence of events is inconsistent with the time indicated on the form, itself. However, the state maintains there is no rule of law requiring the fact finder to give more credence to the written instrument than to the officer's oral testimony, and that Ballard has failed to overcome the presumption of correctness of the state court fact finding.
The Supreme Court recently held that the presumption of correctness does not apply to a state court's legal conclusion regarding the voluntariness of a confession. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985). The Court explicitly left open the question of "whether federal habeas courts must accord the...
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