Davis v. State of North Carolina, No. 9256.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtSOBELOFF, , with whom BELL, Circuit , joins (dissenting)
Citation339 F.2d 770
Docket NumberNo. 9256.
Decision Date08 December 1964
PartiesElmer DAVIS, Jr., Appellant, v. STATE OF NORTH CAROLINA, Appellee.

339 F.2d 770 (1964)

Elmer DAVIS, Jr., Appellant,
v.
STATE OF NORTH CAROLINA, Appellee.

No. 9256.

United States Court of Appeals Fourth Circuit.

Argued April 29, 1964.

Decided December 8, 1964.


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339 F.2d 772
W. B. Nivens and Charles V. Bell, Charlotte, N. C., for appellant

James F. Bullock, Asst. Atty. Gen. of North Carolina (T. W. Bruton, Atty. Gen. of North Carolina, on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BELL, Circuit Judges. By consent, resubmitted before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and BELL, Circuit Judges, en banc, without additional argument.

HAYNSWORTH, Circuit Judge:

The case of Elmer Davis, Jr., convicted in North Carolina of rape-murder, is again before this Court. This time it comes on appeal from the denial of a writ of habeas corpus after a full evidentiary hearing in the District Court, and the resolution by that Court of the historical facts based upon evidence taken before the Court and the prior record in the state court. Since the Court's ultimate conclusion was warranted by its findings and the findings are supported by evidence, we affirm denial of the writ.

Elmer Davis, Jr., was tried and convicted in the Superior Court of Mecklenburg County, North Carolina of the rape-murder of an elderly woman, Mrs. Foy Bell Cooper. During the trial, a written confession was offered and received in evidence against him, as was testimony of his re-enactment of the crime, after the Court had heard evidence as to its voluntary character and had found the confession voluntary and admissible. The jury must also have found the confession voluntary, for it was told by the Court that reasonable doubt of guilt would follow from reasonable doubt that the confession was voluntary.

On appeal to the Supreme Court of North Carolina, the conviction was affirmed.1 The Supreme Court of the United States denied a petition for a writ of certiorari.2

Thereafter, Davis filed a petition for a writ of habeas corpus in the District Court, which was denied after a hearing during which the District Court reviewed the state court record.3 On appeal we reversed, a majority of the Court holding that the general finding in the state court that the confession was voluntary was not a resolution of the historical facts which the habeas corpus court could accept. We held that the parties should be afforded another opportunity to present directly to the District Court evidence bearing upon the question whether the confession was voluntary or the product of coercion.4

Pursuant to our mandate a full evidentiary hearing was held in the District Court, following which the District Judge made detailed findings of fact and concluded that the confession was voluntary.5 From that conclusion, it follows

339 F.2d 773
that receipt in evidence of the confession by the state court was not an infringement of any constitutional right of the defendant

Davis has again appealed.

The historical facts, as found by the District Court, may be briefly summarized here. The factual disputes underlying the ultimate issue are more fully detailed in the earlier opinions of this Court and in those of the District Court and of the Supreme Court of North Carolina.

Shortly before September 20, 1959, Davis escaped from a North Carolina prison camp. With a prior record of other offenses, he had been sentenced to seventeen to twenty-five years imprisonment upon his conviction of robbery and of assault with intent to commit rape. Those offenses had been committed within a few blocks of Elmwood Cemetery in Charlotte, North Carolina, where Mrs. Cooper was murdered on September 20. 1959 while being sexually attacked.

The day after the Cooper murder, Davis was arrested in Belmont, North Carolina, some twelve miles from Charlotte. He was not in his prison uniform, but was clad in civilian clothes. He had in his possession women's undergarments and a billfold containing identification papers of one Bishel Buren Hayes. Hayes later testified that, on September 20, 1959, the billfold and his shoes were removed from his person while he lay in a drunken sleep near the boundary of a railroad right-of-way and Elmwood Cemetery in Charlotte.

When Charlotte police officials learned of the arrest of Davis, they thought he might be a suspect in the Cooper murder. They thought so because of the fact that Davis had previously been convicted of a similar assault in the vicinity of Elmwood Cemetery. They requested and received permission of the warden of the state prison to lodge him in the Charlotte City Jail and to keep him temporarily in their custody.

Davis was held in the Charlotte City Jail for sixteen days, except for a day and a night when he was held in Asheville and its vicinity. The District Court has found that during those sixteen days he was adequately fed and properly treated. He was not abused physically. He was not threatened or intimidated. He had access to a shower bath which he used. He was questioned from time to time, but not lengthily or overbearingly. Until the last few days, the questioning was about his possession of the articles he had with him when arrested and the clothing that he wore. He told the officers he had obtained them in the course of break-ins he had committed in the vicinity of Asheville, North Carolina, and the officers undertook to confirm his stories. They were unable to do so, even though on October 1-2 they finally took Davis with them into the mountains near Asheville, where he had promised that he would point out the scenes of his thefts. He was unable to identify them, and his reports of thefts in the mountains remained unverified.

On the afternoon of October 3, 1959, the Cooper case was mentioned to Davis for the first time. He denied knowledge of it. It was again mentioned to Davis on October 5 when he again denied complicity in the crime and stated that he had been in Belmont on September 20. On October 6 Davis was again questioned about the Cooper case. Davis expressed the wish to speak to one of the officers alone. He had known that officer earlier. When the two were alone, the officer referred to Davis's use of a Bible which he was carrying in his hand. Upon inquiry Davis told him that he had been reading the Bible, but had not been praying for he did not know how to pray. He agreed that he would like the officer to pray for him.6 Thereupon, the officer offered the following prayer:

339 F.2d 774
"O God, You are now a witness to and the watcher over both of us. I have been asked to pray. I want You to be with me in this prayer. I want You to watch over the person that is present with me; also be with me. I do not only ask prayers for myself, I ask for You to be with all people."

Following the officer's prayer, Davis told the officer of the attack upon Mrs. Cooper and the disposition of her body. Later, in the cemetery, he re-enacted the crime, pointing out the place where it had occurred, the opening in the fence through which he removed her body, and the place where he hid it. He also recovered his prison shoes in the bushes where he had concealed them near the cemetery. Still later, he repeated the entire confession before other officers and signed a typewritten version of it after it had been prepared.

In this Court, Davis attacks the denial of the writ primarily upon the basis of his version of the facts. He presents the case as if from the outset he had been questioned for long and exhausting periods by relays of officers about the Cooper murder, was beaten,7 threatened, intimidated, furnished insufficient food and denied access to a shower bath. Davis, indeed, made such contentions, but they are now foreclosed by the findings of the District Court, which have abundant support in the record. Findings not clearly erroneous are binding upon us here and may not be disregarded as Davis would have us do.

Indeed, the evidentiary support of these findings is overwhelming, with the exception of that for the ultimate finding that his feeding was adequate, and the support of that finding is sufficient.

The Charlotte City Jail has no kitchen. From its own facilities it supplied its prisoners with such things as coffee, but it imported the solid foods for their sustenance. It routinely ordered from outside suppliers two sandwiches per meal per prisoner. Each prisoner was entitled to his two, and, since some wished only one, more than two were frequently available to those prisoners whose appetites were so great. The routine fare was cold, and on one occasion Davis expressed a wish for hot hamburgers instead of cold sandwiches. Two hot hamburgers and a glass of milk were procured for him. When he went with the officers to Asheville to show them the scenes of his claimed thefts, he had two hot meals, one in the home of one of the officers. Davis, himself, testified that when he requested such things as peanuts and cigarettes they were supplied. There was testimony that his requests for peanuts, soft drinks and similar food were rewarded not because of any indication of particular hunger, but out of suggestion of particular taste.

This evidence adequately supports the finding that the confession was not the product of hunger. The meals that Davis had in and out of the Charlotte City Jail were not so deficient as to require a finding that denial of an unexpressed wish for the prison fare of the county jail was coercive.

While the prisoner's principal attack is in disregard of the well-supported findings of fact, there are questions which lurk in the case which require our consideration.

A question arises out of the fact that his arrest sheet in the Charlotte City Jail bore a notation that he was not to be allowed to use the telephone, and

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that no one was to be allowed to see him. Using that as a very substantial launching platform, Davis contends that he was held incommunicado and that attempts to contact...

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37 practice notes
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • October 10, 1966
    ...(Cardozo, J.).17. A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C.A.2d Cir.); Davis v. State of North Carolina, 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman, 342 F.2d 679 (C.A.5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C.A.7th Cir.); Peopl......
  • Duncan v. State, 7 Div. 614
    • United States
    • Supreme Court of Alabama
    • June 30, 1965
    ...837; Otney v. United States, 10 Cir., 340 F.2d 696; Latham and York v. Crouse, 10 Cir., 338 F.2d 658; Davis v. North Carolina, 4 Cir., 339 F.2d 770. In Edwards v. Holman, 5 Cir., 342 F.2d 679, that case was said to be distinguishable from Escobedo in several particulars. Among other disting......
  • Outing v. State of North Carolina, No. 10926.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 21, 1967
    ...in the state courts. See, e. g., United States v. Schwartz, 372 F.2d 678, 682 (4th Cir. 1967); Davis v. State of North Carolina, 339 F.2d 770, 777 (4th Cir. 1964), rev'd on other grounds, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). The North Carolina Supreme Court has stated in rega......
  • Miranda v. State of Arizona Vignera v. State of New York Westover v. United States State of California v. Stewart 8212 761, 584, Nos. 759
    • United States
    • United States Supreme Court
    • June 13, 1966
    ...(Cardozo, J.). 17. A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C.A.2d Cir.); Davis v. State of North Carolina, 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman, 342 F.2d 679 (C.A.5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C.A.7th Cir.); Peop......
  • Request a trial to view additional results
37 cases
  • Miranda v. State, No. 759
    • United States
    • United States Supreme Court
    • October 10, 1966
    ...(Cardozo, J.).17. A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C.A.2d Cir.); Davis v. State of North Carolina, 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman, 342 F.2d 679 (C.A.5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C.A.7th Cir.); Peopl......
  • Duncan v. State, 7 Div. 614
    • United States
    • Supreme Court of Alabama
    • June 30, 1965
    ...837; Otney v. United States, 10 Cir., 340 F.2d 696; Latham and York v. Crouse, 10 Cir., 338 F.2d 658; Davis v. North Carolina, 4 Cir., 339 F.2d 770. In Edwards v. Holman, 5 Cir., 342 F.2d 679, that case was said to be distinguishable from Escobedo in several particulars. Among other disting......
  • Outing v. State of North Carolina, No. 10926.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 21, 1967
    ...in the state courts. See, e. g., United States v. Schwartz, 372 F.2d 678, 682 (4th Cir. 1967); Davis v. State of North Carolina, 339 F.2d 770, 777 (4th Cir. 1964), rev'd on other grounds, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). The North Carolina Supreme Court has stated in rega......
  • Miranda v. State of Arizona Vignera v. State of New York Westover v. United States State of California v. Stewart 8212 761, 584, Nos. 759
    • United States
    • United States Supreme Court
    • June 13, 1966
    ...(Cardozo, J.). 17. A narrow reading is given in: United States v. Robinson, 354 F.2d 109 (C.A.2d Cir.); Davis v. State of North Carolina, 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman, 342 F.2d 679 (C.A.5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (C.A.7th Cir.); Peop......
  • Request a trial to view additional results

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