Calloway v. Wainwright

• Decision Date: 19 May 1969
• Docket Number: No. 25284.,25284.
• Parties: Frederick Keith CALLOWAY, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

409 F.2d 59 (1969)

Frederick Keith CALLOWAY, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Appellee.

No. 25284.

United States Court of Appeals Fifth Circuit.

December 20, 1968.

As Amended on Rehearing and Rehearing Denied February 19, 1969.

Certiorari Denied May 19, 1969.

COPYRIGHT MATERIAL OMITTED

J. Leonard Fleet, Hollywood, Fla., for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, Fla., Charles W. Musgrove, Asst. Atty. Gen., Vero Beach, Fla., for appellee.

Before BROWN, Chief Judge, ^*CLAYTON, Circuit Judge, and SCOTT, District Judge.

As Amended on Rehearing and Rehearing En Banc Denied February 19, 1969.

Certiorari Denied May 19, 1969. See 89 S.Ct. 1752.

SCOTT, District Judge:

Appellant, who was sentenced to death in the electric chair on January 15, 1965, for murder in the first degree, seeks habeas relief from that conviction and sentence. After conviction in Broward County, Florida, upon a jury verdict, appellant sought relief in the Circuit Court by motion for a new trial, by direct appeal to the Supreme Court of Florida and by petition for rehearing in the latter Court, all of which were denied. He then filed his petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. The District Judge, on the basis of the record before the Court and a written stipulation from the pre-trial hearing, denied the relief sought. Both points raised on appeal have been argued in the Supreme Court of Florida by appeal or on petition for rehearing.

Appellant alleges two grounds of error for our consideration: First, that his conviction is constitutionally void because his repeated requests for the assistance of counsel prior to his confession were denied and his incriminating statement and all the evidence thereby obtained were admitted against him at his trial contrary to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution; second, that the prosecutor commented to the jury about his failure to testify on matters other than the voluntariness of his confession contrary to the Fifth and Fourteenth Amendments.

I.

The first assignment of error raises the question whether, considering the totality of the circumstances from an independent examination of the whole record the appellant's statements were voluntary. Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968).

Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938).

Invariably, as the Supreme Court has pointed out, in cases involving confessions obtained through unobserved police interrogation, there is a conflict in the testimony as to the events surrounding the confessions. This case presents no exception. To resolve this evidentiary conflict a credibility determination must be made. Considering the undisputed facts, together with reasonable inferences from the testimony as set forth below, we are led to the inescapable conclusion that appellant's confession was not involuntary as a matter of law.

On September 30, 1964, Detectives Frank Troy and Richard Bryan, with other members of the Broward County Sheriff's office, went to the appellant's home for the purpose of arresting him and charging him with first degree murder in the slaying of Carl Ludwig, Jr. The intended arrest was to be made with the cooperation of Ruth Calloway, whom the appellant had identified as his wife. Troy and Bryan stationed themselves inside appellant's home to await his arrival, and other law enforcement officers were placed so that the accused would be under constant observation.

When appellant opened the front door of his home, according to Troy, he was immediately placed under arrest and told that anything he said "at this time could be used either for or against him". According to Troy, on this occasion and on at least five other occasions prior to the time when appellant made any incriminating statements, he requested the opportunity to consult with counsel. Troy testified that appellant said he would not talk until he saw his lawyer. Appellant testified that he immediately asked for an attorney and that Troy told him "you have plenty of time for a lawyer".

Appellant was taken to the scene of the crime immediately after his arrest where he again requested an attorney. Detective Troy testified that not until appellant arrived at the Sheriff's office, located in the Broward County Court House, was he given the opportunity to contact an attorney. Appellant was placed in the interrogation room where he was told that he could make a telephone call. In the room with appellant was a telephone and a telephone directory. According to the testimony of Troy and Bryan appellant was left alone in the room for four or five minutes; this event is denied by appellant. Troy testified that when appellant was told that he could use the telephone he indicated by a shrug of his shoulders that he did not want to make a call and said that he would like to give a statement.

Shortly after the interrogation began appellant broke down and confessed. After the confession had been made orally appellant repeated the statement in the presence of other members of the Sheriff's office for the benefit of the typist who made a written record which was later signed by appellant and introduced at his trial as evidence for the State.

Appellant's trial began on January 11, 1965. This was after the Supreme Court had decided Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and before that Court decided Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964). The retroactive application of these two decisions are limited to trials begun after their respective dates of decision. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Accordingly, the requirements of Escobedo, but not Miranda, directly apply to the matter sub judice. Johnson v. New Jersey, supra. However, the Miranda warnings are relevant to the issue of voluntariness, even though they are not directly applicable. Clewis v. Texas, supra; Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

It is quite clear that under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), every person accused of a crime, whether State or Federal, is entitled to a lawyer at trial. This right to counsel was broadened under Escobedo to include the "in custody" period. In Escobedo the Supreme Court held that the rights described therein inured to the benefit of the accused when "the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect * * *." Escobedo, supra, 378 U.S. at 490, 84 S.Ct. at 1765. Appellee argues that the appellant was not entitled to the rights under Escobedo. Clearly after appellant had been arrested and before confessing he was "in custody" and, therefore, entitled to the right to counsel under Escobedo. The process had turned from "investigatory to accusatory". See Miranda, supra, n. 4.

Under Escobedo the accused is denied assistance of counsel in violation of the Sixth Amendment when he is in custody, has requested and been denied an opportunity to consult with his lawyer and has not effectively been warned of his absolute constitutional right to remain silent. Appellant makes no challenge here to the adequacy of the warnings given him of his right to remain silent, though on the stand he denied that the warnings were given to him. Crediting the testimony of the detectives, as did the District Court, there is no doubt that appellant was told that he had a right to remain silent.¹ Since it is undisputed that appellant indicated at least several times that he was not going to say anything until he had talked to his lawyer, the question becomes whether appellant was afforded the opportunity to consult with a lawyer.

Appellant testified that at the time of his arrest he knew a lawyer and was paying him to obtain a divorce from the woman with whom he was living. He eventually called this very lawyer to aid in his defense. Though appellant was not given the opportunity to contact a lawyer until he arrived at the Broward County Sheriff's office, before appellant made any statements and again during interrogation he was repeatedly advised that he had a right to have an attorney. Apparently appellant changed his mind about obtaining counsel and shrugged his shoulders when he was advised that he could use a telephone located in the interrogation room.

This opportunity to contact a lawyer, limited as it was, together with the several warnings of his constitutional rights, was sufficient basis for the District Court's findings that appellant was not denied the assistance of counsel under Escobedo and the Fifth, Sixth and Fourteenth Amendments. Appellant had a fair opportunity to secure counsel of his own choosing within the guaranty of due process of the United States Constitution. Cf. Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958).

The inference is inescapable that appellant was ready and willing to confess of his own volition without first obtaining a lawyer. This Court will not substitute its own view on a close factual question for that of the State Court. Compare Mr. Justice Harlan's separate opinion in Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968). We conclude that we cannot hold as a matter of law that there are sufficient facts which render the confession involuntary.

II.

The second assigned error raises the question whether the prosecutor's comments...