Burns v. Beto

• Decision Date: 30 January 1967
• Docket Number: No. 23201.,23201.
• Citation: 371 F.2d 598
• Parties: John Franklin BURNS, Appellant, v. Dr. George BETO, Director, Texas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

371 F.2d 598 (1966)

John Franklin BURNS, Appellant, v. Dr. George BETO, Director, Texas Department of Corrections, Appellee.

No. 23201.

United States Court of Appeals Fifth Circuit.

November 29, 1966.

Rehearing Denied January 30, 1967.

J. R. Ramsey, Houston, Tex., for appellant.

Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for appellee.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and CHOATE, District Judge.

RIVES, Circuit Judge.

Burns, the appellant, is confined in the Texas State Penitentiary at Huntsville, Texas, under sentence of death. Upon his trial on January 15, 1964, in Criminal District Court No. 2 of Harris County, Texas, for the murder of Jessie Odum, there was admitted in evidence over his objection his written statement admitting in effect that he killed Odum. The jury found him guilty of murder with malice and assessed his punishment at death. The judgment of conviction was affirmed by the Court of Criminal Appeals of Texas.¹ Subsequently, Burns was sentenced on June 3, 1965, by the Texas district court in which he was tried, to be executed on August 5, 1965 by death in the electric chair.

On July 20, 1965 Burns filed his application for habeas corpus and for a stay of execution in the United States District Court for the Southern District of Texas. That court stayed his execution until November 15, 1965 to afford him an opportunity to file his application for habeas corpus with the Texas Court of Criminal Appeals which was due to reconvene on October 4, 1965. On October 11, 1965 the Texas Court of Criminal Appeals denied without written opinion leave to file application for habeas corpus and stay of execution. Burns then renewed his prayer for habeas corpus to the federal district court. After response by the appellee, the district court found "an evidentiary hearing not to be required under the teachings of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)," and heard the case upon the criminal trial record. The district court wrote an extended opinion and dismissed the application for habeas corpus.

On this appeal Burns' counsel raises two issues. First, he argues that the introduction at the conclusion of the evidence of photographs of the body of the deceased and of the bloody hands of Burns constituted a denial of due process. Second, he insists that the introduction of Burns' confession into evidence violated due process for a number of different reasons, hereafter discussed.

Photographs.

In the case of each photograph, the photographer testified, in substance, that it truly and accurately represented that which it purported to depict. The district court then declined to permit Burns' counsel to examine the photographer on voir dire. Counsel thereafter declined to cross-examine the photographer. Clearly, the refusal to permit voir dire examination presents no constitutional problem.

Even from the faint Zerox copies of the photographs which appear in the record used in this Court, it appears that they were extremely gruesome and might well arouse feelings of horror and indignation on the part of the jury. The federal district court did not view the actual photographs, some of them in color, and, accordingly, upon review this Court has not viewed those photographs. They have, however, been deposited with the Clerk of this Court so as to be available in the event of further review. We accept as true the detailed descriptions of the photographs contained in the majority opinion and in the dissenting opinion in the Texas Court of Criminal Appeals, 388 S.W.2d 690, 699. The Texas Court of Criminal Appeals held, in effect, that each of the pictures was competent evidence tending to solve disputed fact issues and to refute the testimony of Burns.

Burns' counsel argues that the prime motive for the introduction of the photographs was to secure the death penalty and that the receipt of the most gruesome of them over Burns' objection was so prejudicial as to infringe the fundamental right to a fair trial guaranteed by the due process clause of the Fourteenth Amendment. He cites no cases directly in point but relies largely upon the development of the due process clause in Estes v. State of Texas, 1965, 381 U.S. 532, 536-552, 85 S.Ct. 1628, 14 L.Ed.2d 543. We find no precedent directly on this issue as a constitutional problem, but are somewhat aided by the cases dealing with the evidentiary problem of the admissibility of pictures of the body of the deceased. Most of those cases are collected in an annotation in 73 A.L.R.2d 769 on "Admissibility of Photograph of Corpse in Prosecution for Homicide or Civil Action for Causing Death," and its supplemental service.

Burns' counsel concedes that the admission of photographs must necessarily rest largely in the discretion of the trial judge and that his action will not be disturbed in the absence of abuse of discretion; but argues that where the prejudicial character of the pictures outweighs their probative value, they should be excluded. He further insists that, in an extreme case such as this, balancing of prejudicial character against probative value raises a question of due process which should be reviewed by the federal courts.

As we understand the decision of this case by the Texas Court of Criminal Appeals, it did not balance the prejudicial character of the photographs against their probative value, but simply held that the photographs were admissible in evidence because they tended to settle disputed fact issues. The timing of the introduction of the photographs at the conclusion of the evidence was occasioned by the defendant Burns testifying in his own behalf, in substance, that he did cut the deceased but was not aware of the extent and severity of the cutting, and that he acted in self-defense.

If we hold that the due process clause requires us to balance the prejudicial character of the photographs against their probative value, we will open wide the door of the federal courts to supervise the admissibility of evidence in state criminal trials. If that is to be done, even in so extreme a case as described in Judge Morrison's dissenting opinion (388 S.W.2d 698, 699), we think that it should be done initially by decision of the Supreme Court of the United States. We hold that, so long as photographs accurately represent what they purport to depict and are logically relevant, their extreme gruesome and prejudicial character cannot make their admission in evidence amount to a denial of due process.

The Confession.

On the night that Odum was killed, Burns was arrested and carried to the third floor office of Captain M. F. Patton of the Sheriff's Department, Harris County, Texas. He was sitting in that office when Captain Patton arrived "around midnight or a little bit after" and began his interrogation. Approximately an hour and a half later, Burns made a statement to Captain Patton and it was typed by his night clerk, a Mrs. White. The written statement began:

"I, John F. Burns, after first being duly warned by M. F. Patton, the person to whom this statement is made, as follows:

"FIRST — That I do not have to make any statement at all.

"SECOND — That any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following Voluntary Statement * * *."

It is clear that Burns was not in any way apprised of his right to consult with an attorney or to have one present during the interrogation. If Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were to be applied retroactively, Burns' confession would be inadmissible. Unfortunately for Burns, the holding in Escobedo is available only to persons whose trials began after June 22, 1964, and the guidelines in Miranda are available only to persons whose trials had not begun as of June 13, 1966. Johnson and Cassidy v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Burns was tried and convicted on January 15, 1964, and, hence, his confession was not rendered inadmissible either by Escobedo or by Miranda. However, as noted in Johnson and Cassidy v. State of New Jersey, supra, the same safeguards may be invoked as part of an involuntariness claim.

The confession, as it was read to the jury, was not the entire writing signed by Burns. That is shown by the statement of the prosecuting attorney when he said: "I offer the statement with the exception of the part which I have deleted." No ground of objection was assigned at the time to raise the point that a part only of a confession is inadmissible. Burns' counsel now argues that the admission of the confession with a part deleted was so essentially unfair to Burns as to be a denial of due process, citing Estes v. State of Texas, 1965, 381 U.S. 532, 543, 85 S.Ct. 1628; White v. State of Maryland, 1963, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; and Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Those cases emphasize the necessity of a fair trial in a fair tribunal as a basic requirement of due process, but do not discuss the specific question posed by the admission of only a part of a confession.

The record does not contain the part of the confession which was deleted, or disclose either the language or the substance of that part. However, Burns' brief indicates that exculpatory statements were omitted from the confession, and appellee's brief states, "in this case, the defense to the murder charge was self-defense and the statements in the confession which may have supported this defense were omitted by the prosecution in the offer of the confession."

Burns' counsel argues that Burns was forced to take the stand to testify to the omitted exculpatory portions of the confession. If that is true,...