Davis v. Sigler

• Decision Date: 16 September 1969
• Docket Number: No. 19319.,19319.
• Citation: Davis v. Sigler, 415 F.2d 1159 (8th Cir. 1969)
• Parties: Donald Henry DAVIS, Appellant, v. Maurice SIGLER, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

415 F.2d 1159 (1969)

Donald Henry DAVIS, Appellant, v. Maurice SIGLER, Warden, Appellee.

No. 19319.

United States Court of Appeals Eighth Circuit.

September 16, 1969.

Paul F. Festerson, Omaha, Neb., for appellant.

Melvin Kent Kammerlohr, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., for appellee, Clarence A. H. Meyer, Atty. Gen., State of Nebraska, Lincoln, Neb., on the brief.

Before BLACKMUN, MEHAFFY and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

Donald Henry Davis, born January 15, 1948, and now a Nebraska State prisoner, appeals in forma pauperis from the denial of his application for a writ of habeas corpus. The certificate of probable cause, required by 28 U.S.C. § 2253, was issued by the district court.

Davis, on his plea of not guilty in the District Court for Douglas County, Nebraska, was convicted by a jury in 1965 of murder in the first degree (killing in the perpetration of a robbery). Neb. R.R.S. 1943 § 28-401 (1964). He received a life sentence. On appeal the judgment of conviction was affirmed. State v. Davis, 180 Neb. 830, 146 N.W.2d 220 (1966). Certiorari was denied. Erving v. Nebraska, 386 U.S. 998, 87 S.Ct. 1320, 18 L.Ed.2d 348 (1967).

The homicide and Davis' presence in an automobile near the scene of the crime are not in controversy.

In the federal proceeding, the state trial bill of exceptions (transcript) was introduced in evidence and the parties entered into a "Stipulation of Uncontroverted Facts." Some of the facts are stated in the opinion of the Nebraska Supreme Court and in that court's opinion in the companion appeal. State v. Erving, 180 Neb. 824, 146 N.W.2d 216 (1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1320, 18 L.Ed.2d 348 (1967).

An Omaha bar was robbed shortly after 9 p. m. on August 18, 1964. In the course of the robbery the bartender was shot. He soon died of the wound he had received. Three blacks, Jerry Erving, Jr., Deborah Boston, and Nathaniel Hall, were present in the bar at the time and fled with money taken from the cash register and with bottles of liquor. Hall carried the gun and shot the bartender. Davis, also a black, was the driver of the car by which Erving, Deborah, and Hall had arrived at the bar.

The automobile was parked outside the bar and pulled away just after the crime. The car was seen and was described to the police. An officer in a car passed it, attempted to follow it, and soon found it empty but with its lights on. In the automobile were a bottle of whisky bearing a marking used at the bar and a bandanna or scarf similar to that worn by one of the participants in the robbery. The registration found in the automobile identified the car as belonging to Davis' father.

Officers went to the address listed in the registration. Inquiry there led them to the home of Davis' girl where, about 10 p. m., Davis was found. He was arrested and taken to the police station.

Upon arrival at the station Davis was interrogated, placed in a line-up, and booked. He was not turned over to the juvenile authorities. The next morning he was further questioned by two colored detectives. Davis' mother went to the station that day but her request to see her son was refused. His father and uncle also were unsuccessful in getting to see him. The officers questioned Davis further that evening. One of them typed a summary of that interrogation. In this interview Davis admitted his involvement in the crime.

At 12:30 a. m. on August 20 a deputy county attorney and one of the detectives again questioned Davis. This was recorded by a court reporter. Davis once more confessed. His mother was allowed to see him on August 20 after the statement had been recorded and after he had been removed from the station to the county jail.

Hall, Erving, Deborah, and Davis were charged with murder. Hall pleaded guilty. The others pleaded not guilty. On motion of the state the three cases were consolidated for trial pursuant to Neb. R.R.S. 1943 § 29-2002 (1964). Timely objections to the consolidation were made by all three and their respective motions for severance were denied. Each defendant had his own lawyer. Davis' counsel was retained.

The trial resulted in an acquittal for Deborah and in convictions for Davis and Erving.

In the warden's response to the district court's order to show cause, it was suggested that Davis had failed to exhaust his state remedies because he had not utilized the Nebraska post-conviction procedure provided by Laws 1965, c. 145, now Neb. R.R.S.1943 §§ 29-3001 to 29-3004 (Supp.1967). See Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965). We are satisfied, however, as was the district judge, that the issues raised in the federal habeas proceeding are substantially identical with issues raised on Davis' direct appeal from his conviction; that the Nebraska court would rule that it has already passed upon them; and that state remedies have been sufficiently exhausted so as to satisfy the requirements of 28 U.S.C. § 2254(b). See Kennedy v. Sigler, 397 F.2d 556, 559 (8 Cir.1968); State v. Hizel, 181 Neb. 680, 150 N.W. 2d 217, 219 (1967), cert. denied, 389 U.S. 868, 88 S.Ct. 143, 19 L.Ed.2d 145; State v. Newman, 181 Neb. 588, 150 N.W.2d 113, 114 (1967); State v. Parker, 180 Neb. 707, 144 N.W.2d 525, 529 (1966).

On this appeal Davis asserts the absence of probable cause for his arrest. He also claims that at the joint trial his federal constitutional rights were violated by the receipt (a) of evidence of his confessions and (b) of evidence admissible only against a codefendant, including, in particular, statements which incriminated or tended to incriminate Davis.

We turn at once to the last issue.

The challenged evidence consisted of the testimony of three witnesses (Gray Smith; his wife, Margaret Smith; and Hightree) as to events which took place inside the bar that night; state exhibits 1-6 inclusive, consisting of five photographs of the inside of the bar and one photograph of its exterior; the testimony of witness Dee as to his finding an empty .22 caliber shell casing on the bar's floor; state exhibit 7, the casing; state exhibit 9, the bandanna found in the Davis automobile; the testimony of Detective Sergeant Foxall concerning the oral confessions of Deborah and Erving; the testimony of witness Fitch as to the deposition of the court reporter who took the statement from Deborah; and Deborah's statement which was the exhibit attached to that deposition.

Deborah's oral statement, according to Foxall, referred to a driver of the automobile. She did not name the driver or otherwise identify him as Davis. She spoke of her friend Erving and of his coming up to her "in an automobile with another man driving, and another man * * * in the back seat, all colored." She joined them. She did not know the other two men. There "was some talk amongst the men in the car about holding up the place * * *." After the shooting at the bar she and Erving returned to the parked automobile "and the driver drove west * * *." They came across Hall and picked him up. They stopped "and they were in the process of counting the money and splitting up same between the men only."

Erving's oral statement, according to Foxall, included comments that Davis and Hall came to Erving's home the evening of August 17 in Davis' automobile. The three drove around a bit. Hall and Davis came by again early the next evening. They drove around. They saw Deborah on the street and she got into the car. Eventually, they parked near the bar and looked inside. Erving and Deborah entered. When Erving and Deborah left the bar after the shooting, "they got into the automobile, aroused Donald Davis, who was relaxing behind the wheel, told him that Hall had shot the bartender and drove around * * *", picked up Hall, and went to what Erving believed was Davis' home "where they counted the money by dumping this all on the floor of the automobile."

Witness Fitch was a court reporter. He testified that on May 1, 1965, he took a deposition from Mrs. Mary Kay Wain, another reporter; that Mrs. Wain was to have surgery and would be unavailable at the time of the trial; and that Mrs. Wain testified that on August 20, 1964, she took a statement from Deborah and prepared a transcript from her notes.

Deborah's statement before the court reporter recited: She was born in August 1948 in Little Rock, Arkansas. On the night of August 18 Erving came by in an automobile. She got in. There were two others in the car beside Erving. She did not know their names. There was talk about robbing the bar. The "three boys were talking about it together." She and Erving entered the bar. The other man followed. After the shooting, the one with the gun went out first. Then she and Erving left. The two returned to the car. The driver was still there. They drove around the corner and picked up the other man.

At the trial Davis took the stand in his own behalf. Erving and Deborah did not. Davis testified that he and Erving and Hall had been drinking that night; that nothing was said about robbing the bar; that he was so drunk that he fell asleep while they were parked before the bar; that he did not see Hall get out; that the next thing he remembered was Erving and Deborah's getting back into the car and telling him, "Man, let's get on away from here"; that Erving had to shake him to wake him; that they encountered Hall on the way; that Hall still had the gun; that they went to Erving's home; that he, Davis, was sick and threw up; that, when the others came out of the house, they returned to him two or three dollars he had advanced to them; that he started to drive Hall home because he, Davis, had to take his mother to work; that a police car passed them and Hall jumped out; that Davis had no driver's license and was drunk and all he could think of was getting out, too; that he did get out and started running; that he never planned to rob the bar; that he was never inside it; that he stopped there to...