Brown v. Lash

• Citation: 432 F.2d 1129
• Decision Date: 30 September 1970
• Docket Number: No. 17581.,17581.
• Parties: George Robert BROWN, Petitioner-Appellant, v. Russell LASH, Warden, Indiana State Prison, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

432 F.2d 1129 (1970)

George Robert BROWN, Petitioner-Appellant, v. Russell LASH, Warden, Indiana State Prison, Respondent-Appellee.

No. 17581.

United States Court of Appeals, Seventh Circuit.

September 30, 1970.

Max Cohen, Gary, Ind., for appellant.

William F. Thompson, Asst. Atty. Gen., of Ind., Mark Peden, Deputy Atty. Gen., Theodore L. Sendak, Atty. Gen., of Ind., Indianapolis, Ind., for appellee.

Before SWYGERT, Chief Judge, and KILEY and FAIRCHILD, Circuit Judges.

FAIRCHILD, Circuit Judge.

This is an appeal from a denial of habeas corpus. Petitioner George Brown was convicted in an Indiana court of first degree murder. The jury decreed the death penalty. In a state coram nobis proceeding, petitioner claimed, among other things, that his trial counsel, Mr. Stenhouse, was ineffective, that his confession was involuntary, and that evidence of other crimes had been improperly introduced. His coram nobis petition was denied.

Petitioner filed in federal district court the application for writ of habeas corpus now under consideration. He alleged that his confession was involuntary and that Mr. Baker, Public Defender, who had appeared for him at the coram nobis hearing, had failed to provide effective assistance of counsel in establishing coercion. He also challenged the imposition of the death penalty on various constitutional grounds, procedural and substantive.

The district court, after hearing, found that Mr. Baker had fulfilled the minimum standards for effective assistance of counsel. The court declined to rule on the matter of exclusion of jurors oppposed to the death penalty since the Indiana courts had not had an opportunity to consider a claim of that nature since Witherspoon v. Illinois.¹ Other points had apparently been ruled on orally, adversely to petitioner, and the petition was denied. Petitioner appealed.

Petitioner's conviction occurred December 13, 1957. The case has a long history and execution has been stayed from time to time.²

The Confession.

Petitioner Brown was an inmate of the Lake county jail throughout April, 1957. He had been free on bail, charged with theft, and failed to appear for trial. He was brought to the jail March 31, after apprehension in Nevada. While Brown was in the jail, the Gary police referred a tip that Brown had told his wife about killing a woman the summer before and concealing her body. Mrs. Brown was contacted and showed the deputies the place Brown had pointed out. The deputies dug, but found nothing. In sequence that is somewhat in dispute, they questioned him at times at the jail and took him one or more times to the site; he made oral admissions and signed a detailed confession. Thereafter he admitted many other offenses.

He related that on a rainy evening the summer before he picked up a woman walking along the highway after her car had stalled, he had parked off the main route, had choked her to death, pulled her body off the road, and covered it with stones; he took her purse, and, after removing her money, burned the purse and buried the remnants at his home. With this information, the deputies were able to find the body a short distance from the area where they had looked earlier. With Brown's help, they recovered the partially burned purse and contents at Brown's home.

The contents of the purse contained papers of Mrs. Mildred Grigonis. Her husband and sister identified the purse and contents, a denture, and a pin. She had failed to return home after work the evening of August 17, 1956. Her car had been found at the location described by Brown.

The coram nobis proceeding.

Brown supported his claim that his confession was not voluntary by assertions that he was subjected to protracted questioning and that threats and inducements were made. In his coram nobis petition he alleged the questioning lasted approximately two weeks, and in his habeas corpus petition, a period of five to seven days.

The state's position is that no threats or inducements were made and that the questioning which led up to the confession of the Grigonis murder took place only during the afternoon and evening of Monday, April 29, 1957. The deputies testified, and certain records indicate, that the tip from the Gary police was received about 10:30 p.m. Saturday, April 27, the written confession was dated April 29 at 8 p.m., and the body was found Tuesday, April 30. Brown reenacted the events on April 30 and made an additional oral admission May 1. It is clear that Brown was questioned about other offenses up to May 8. His confession of the rape and murder of Lana Brock is dated May 1, at 6 p.m., his confession of several assaults is dated May 4 at 12:30 p.m.; and a deputy testified at trial he was questioned about other events May 7 and 8.

The coram nobis hearing was held June 1, 1960. Mr. Baker, on Brown's behalf, read his petition into the record, and it was accepted as evidence. The petition detailed his claim with respect to protracted questioning and threats, as well as other claims. The transcript of the trial was also submitted. At trial however, there had been no objection to the confession and no real exploration as to its voluntary character. At the 1960 hearing, the deputies who had been active in the investigation, Chief Singer, Uzelac, and Garapich, testified. Several others who had been on duty at the jail were called. All denied making any threats or inducements. Brown testified in rebuttal.

Mr. Stenhouse, Brown's counsel at trial, testified that he did not object to the admission of the confession; he discussed it with Brown, who hold him it was true and given freely and voluntarily. Stenhouse testified that Brown had not told him of any of the facts on which Brown based his present claim that the confession was inadmissible. Brown testified he had told these things to Stenhouse.

The trial court made no particularized findings of fact; the record shows only an order that Brown's petition was denied.

New Evidence.

Brown's present counsel, Mr. Cohen, presented in the habeas corpus hearing several items of evidence which were not presented at the coram nobis hearing. Some of these tend, arguably, to corroborate Brown's claim that he was questioned over a longer period about the Grigonis murder and to corroborate a threat he attributed to a guard at the jail.

Some of the new evidence arguably tended to show (1) that the tip which initiated the investigation which uncovered the Grigonis killing was not received April 27, but earlier; (2) that more than 2 days intervened between the tip and the confession; (3) that one officer at the jail expressed hostility and made a threat; (4) that Brown had been taken from his cell and stripped; and (5) that some of the relevant records were not maintained in ordinary course. (6) It is also argued that the confession was really made April 30 and dated back to April 29.

(1) The April 27 date. Bard, the Gary officer who relayed the tip, testified that he was not on duty Saturdays, such as April 27, 1957. The records of a weather observatory, only a few miles from the site of the killing indicate that on April 27 the total precipitation was .71 inches, but that there was no precipitation after 6 p.m. The last previous day on which there had been precipitation throughout the evening and into the early morning hours was April 17. The total precipitation on April 17 was .52 inches. At the 1957 trial, Uzelac testified, in describing the place pointed out by Mrs. Brown the evening the tip was received, "it had just rained previous and it was awful wet." In a deposition in 1968 before the habeas corpus hearing, he testified to the effect that there was a slow misting rain continuing during all the evening hours and until 2 a. m. If the latter description be correct, the weather records indicate the date was Wednesday, April 17, not April 27.

(2) Duration of questioning. Bard testified that Uzelac called him several days after the tip and said they weren't getting anywhere with Brown. Bard said a week to ten days elapsed between the tip and the confession. Jackson and Quinn had been inmates in the so-called criminal section of the jail at the time Brown was in that section. Jackson testified that Brown was taken out two or three times a day for several hours and that a week to ten days elapsed from the time Brown was brought to that part of the jail until Jackson learned Brown had confessed killing a woman. Quinn testified similarly except he estimated the time at close to two weeks. It does appear that Brown was questioned from April 29 to May 8, but the testimony of the deputies is that almost all the questioning after April 30 related to other matters.

(3) Threat. One of the threats alleged by Brown, but attributed to a deputy other than Singer, Uzelac, or Garapich, was:

"Mildred Grigonis is a blood relative of mine. If you don\'t make a confession and tell us where you hid her body, I\'ll come in that cell and hang you. I ought to come in there and hang you whether you confess or not. * * *"

Mr. Grigonis had reported his wife's disappearance to the police. The record does not show, however, whether the deputies linked Brown with her disappearance until they found papers bearing her name.

Jackson testified that when an officer brought Brown into the section he told Brown that Brown had killed a relative of his and if he had a chance, he would hang Brown. Jackson understood the relative referred to was the beautician (Mrs. Grigonis). Quinn testified that the officer said that if he got the chance, he'd cut Brown's throat. Brown, Jackson, and Quinn were each unable to identify the officer. No witness, including Mr. Grigonis and his son, knew anything about Mrs. Grigonis being related to any officer. It appeared that Lana Brock, another victim of Brown, was the niece of an East Chicago police officer, but the record does not indicate any contact between Brown and that officer. Moreover her body had been found...