Burwell v. Teets

• Decision Date: 03 May 1957
• Docket Number: No. 15312,15313.,15312
• Citation: 245 F.2d 154
• Parties: Eugene BURWELL, Appellant, v. Harley O. TEETS, Warden, California State Penitentiary, San Quentin, California, Appellee. James Alonzo ROGERS, Appellant, v. Harley O. TEETS, Warden, California State Penitentiary, San Quentin, California, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

245 F.2d 154 (1957)

Eugene BURWELL, Appellant, v. Harley O. TEETS, Warden, California State Penitentiary, San Quentin, California, Appellee.

James Alonzo ROGERS, Appellant, v. Harley O. TEETS, Warden, California State Penitentiary, San Quentin, California, Appellee.

Nos. 15312, 15313.

United States Court of Appeals Ninth Circuit.

May 3, 1957.

R. J. Reynolds, John Adams, Jr., San Francisco, Cal., for appellant Eugene Burwell.

Walter F. Freitas, S. J. Hugh Allen, San Rafael, Cal., for appellant James Alonzo Rogers.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., State of California, for appellee.

Before POPE, FEE and HAMLEY, Circuit Judges.

POPE, Circuit Judge.

Burwell and Rogers were inmates of the California State Penitentiary at San Quentin. On the evening of January 14, 1952, in what was apparently an effort to escape from the prison, they killed two prison guards and attacked and seriously injured two other guards. They were charged with murder, verdicts of guilty were returned, and death sentences imposed. Upon their mandatory appeals to the Supreme Court of California, they urged among other assignments of error, that upon their trial (they were tried together), they had been denied certain rights under the Constitution of the United States, and thereby had been deprived of due process of law in their conviction.

The judgments of conviction were affirmed, People v. Burwell, 44 Cal.2d 16, 279 P.2d 744, and petition for certiorari to review the action of the California Supreme Court was denied, 349 U.S. 936, 75 S.Ct. 788, 99 L.Ed. 1265. The appellants then filed their separate petitions for writs of habeas corpus in the court below making the same allegations of denial of constitutional rights which had been specified in their previous appeals to the California Supreme Court. Orders to show cause were issued directed to the appellee as respondent, and both made returnable at the same time. The executions of the petitioners were stayed. The respondent made return and both petitions and the returns thereon were heard together. The court below had before it the entire record of the proceedings in the trial court where the petitioners were tried, as well as the briefs and the petitions for rehearing in the Supreme Court of California, and the petitions for certiorari.

No evidence aside from the record in the State courts was offered or received. Petitioners were represented by the same court-appointed counsel who had represented them in the State courts. At the conclusion of the hearing the orders to show cause were discharged and the petitions for writs of habeas corpus were denied. Petitions for certificate of probable cause were denied by the trial court but were granted by a Judge of this court. Application of Burwell, 9 Cir., 236 F.2d 770.

The applications for writs of habeas corpus alleged denial of fair trials and want of due process in a number of respects. The particulars of such claimed denials of constitutional right we proceed to discuss, beginning with the contentions made by appellant Burwell, and thereafter dealing with Rogers' appeal.

Burwell's Appeal.

The question which presents the most difficulty here has to do with the use of confessions made by Burwell under circumstances which the appellants assert amount to coercion. This question was presented and tried in the State trial court. The circumstances under which the confessions were made were fully developed in the trial court. The judge made the preliminary inquiry as to the voluntariness of the confessions prior to permitting them to be received in evidence. The evidence as to these circumstances was presented to the jury and the question whether the confessions were voluntary or not was submitted to the jury under appropriate instructions with which appellants find no fault.

It was upon this record that the district court made its determination; the same record which was before the State Supreme Court. No effort was made in the court below to introduce any other evidence. The State courts have at every stage found against the appellants with respect to their claim of coerced confessions. Since all permissible findings of fact have been resolved against them, they concede here that such claim must be based upon those facts in the case which are undisputed.¹

On January 14, 1952, the day of the killing, Burwell, a man in his late twenties, was serving a term for the crime of robbery. He had entered the prison February 21, 1948, and had been notified by the prison authorities that he was scheduled for parole just 38 days later, on the anniversary of his entry. His record in the prison was that of a model prisoner. He had been given a position as chief clerk in the prison library where he was allowed to come and go as he pleased, and the reports of his work in that capacity indicated that he was both intelligent and hard working. He showed ability in typing, record keeping, and other paper work. He was described as a prisoner of pleasing personality, and as a conscientious and dependable clerk. He was an honorably discharged veteran of World War II; he had landed with the American Expeditionary Forces in Normandy; he had served in four theatres of that War and won citations for bravery, including four Bronze Stars. Customarily, and of his own choice, he worked long hours in the library, and on the evening of January 14 he was still there at 6:30 or 7 P. M. At the same time Rogers was also in the library where he was not supposed to be. There was some dispute as to why Rogers had gone to the library; but while he was there, one Wiget, a prison guard, came to the library in making his rounds of inspection. A fight occurred between the guard and Burwell and Rogers and the guard was killed.

There was much conflict in the evidence as to who started the fight and as to whether it had some connection with previous "racial" disputes between Burwell and the guard. (Burwell is a negro). During the fight Burwell was stabbed in the back with a knife, and also received a superficial wound on the thigh. The knife thrust in his back was just below the right shoulder blade. The wound started to bleed but Rogers used a first aid kit and closed the wound and stopped the bleeding. Two other prison guards came into the library and were attacked by Burwell and Rogers using a hand ax and scissor blades. Both officers were severely cut and beaten into unconsciousness. After some time the two prisoners made their way into a projection booth which overlooked a mess hall where a basketball game was in progress. Apparently they succeeded in gaining access by telling a guard, Officer Mackin, who was in charge of the projection room, and an inmate who was playing records there, that they had been sent to pick up some phonograph records for the library. When they saw that Officer Mackin noticed the blood on Burwell and was about to telephone, they attacked him. The other inmate ran from the room and gave an alarm, but before guards could be summoned Mackin was stabbed in the heart. He was later found to have numerous scalp wounds inflicted by the hatchet which Burwell had carried.

The first persons who entered the projection booth after the alarm was given were an army sergeant and a prison guard. Mackin was found dead lying in a pool of blood. The army sergeant had been in charge of a group of soldiers from the Presidio who had come over to play against the prison basketball team. Referring to Burwell he testified that his clothes were covered with blood; that he seemed ashen, "like a person who is a little faintish." Burwell asked if he could sit down and the sergeant told him to do so and he sat on an ice cream can outside the door of the projection room. For some reason, which is not apparent, no other guards or prison officers came to the projection room for a full half hour. The sergeant had testified that he reached the projection booth about 8:30 P. M., and left at 9 P. M. in order to accompany the soldiers composing his team back to San Francisco. He left the single prison guard with Burwell and Rogers.

Some minutes after the sergeant left, Captain Nelson, with a group of other prison officers, arrived. Burwell and Rogers were ordered to strip off their clothes and they were marched across an open prison courtyard into Captain Nelson's office. On the way across the courtyard Burwell lagged behind and was told to quicken his pace. When he replied that he was in no hurry, one of the guards twisted his arm behind his back to hurry him and another struck him across the back and buttocks to speed him along. As this occurred some armed guards on the wall shouted, "Stand aside and we will shoot the `so and sos'". The Captain, who was with the prisoners, promptly rebuked the guards and said that no one would hurt the prisoners and that they were to be taken through safely.

As Burwell was led into the Captain's office, he stumbled and fell headlong. He was taken to the adjoining associate warden's office and was questioned by a Captain Thompson. The latter stated that the questioning began at some time between 9:15 and 9:30. As he was questioned Burwell stood naked in front of the desk at which Thompson was seated. Thompson testified that Burwell appeared to be in a weakened condition and frightened and pale; it was apparent that he had been bleeding for there was dried blood on his back. As soon as Captain Thompson began by asking Burwell what had happened, the latter at once undertook to tell him. With no hesitation he told Thompson that he had had some trouble with Officer Wiget; that he and the officer had words when the officer first came into the library; they started to fight; he got the knife away from the officer and struck the officer with the knife at least four times. He told how he and Rogers got to the projection room; that the officer who let him into the projection booth saw blood...