Erving v. Sigler

• Decision Date: 13 April 1971
• Docket Number: Civ. No. 1625 L.
• Citation: 327 F. Supp. 778
• Parties: Jerome ERVING, Jr., Petitioner, v. Maurice H. SIGLER, Warden of Nebraska Penal and Correctional Complex, Respondent.
• Court: U.S. District Court — District of Nebraska

327 F. Supp. 778

Jerome ERVING, Jr., Petitioner, v. Maurice H. SIGLER, Warden of Nebraska Penal and Correctional Complex, Respondent.

Civ. No. 1625 L.

United States District Court, D. Nebraska.

April 13, 1971.

Thomas C. Emery, Omaha, Neb., for petitioner.

Mel Kammerlohr, Asst. Atty. Gen., for respondent.

MEMORANDUM OF DECISION

URBOM, District Judge.

The petitioner, Jerome Erving, Jr., is presently incarcerated in the Nebraska Penal and Correctional Complex pursuant to his May 20, 1965, conviction for murder in the perpetration of a robbery. Erving, together with two co-defendants, was tried in the District Court of Douglas County, Nebraska, before a jury which returned a verdict of guilty against two of the defendants while acquitting the third.

The petitioner's conviction was affirmed on appeal to the Supreme Court of Nebraska, State v. Erving, 180 Neb. 824, 146 N.W.2d 216 (1966). In December, 1966, the petitioner filed an application for writ of habeas corpus. However, the petition was dismissed at the petitioner's request and without prejudice pending final resolution on an application for writ of certiorari to the Supreme Court of the United States. After the Supreme Court denied the petitioner's application, this court ordered that the petitioner's application for writ of habeas corpus be filed in forma pauperis in accordance with 28 U.S.C.A. § 1915.

On February 18, 1971, an evidentiary hearing was held before this court wherein the petitioner testified and presented the testimony of his mother, Katherine Erving. The respondent offered the state court bill of exceptions into evidence and it was received without objection by the petitioner. Subsequently, counsel for both parties submitted briefs. The case now is ready for decision.

STATEMENT OF FACTS

On the evening of August 18, 1964, the Sip 'N-Chin Bar, a tavern located in Omaha, Nebraska, was robbed and the bartender was shot. Later, the bartender died of the wound inflicted during the robbery. Since the details of the robbery and shooting have already been set forth in Davis v. Sigler, 415 F.2d 1159 (C.A.8th Cir. 1969), State v. Davis, 180 Neb. 830, 146 N.W.2d 220 (1966), and State v. Erving, supra, there is no need for extensive exposition of the facts of the crime itself.

Attention needs to be turned to the sequence of events occurring after the robbery and shooting. The Omaha police arrested four persons, later identified as Nathaniel Hall (who apparently fired the fatal shot), Jerome Erving, Jr., Donald Henry Davis, and Deborah Boston. All were charged in the tavern robbery and murder.

The petitioner was arrested at his home in Omaha, Nebraska, on the morning of August 19, 1964, by Omaha police detective Pittmon Foxall. After the arrest Erving was taken to the Omaha Central Police Station where he was initially placed in a cell. After the elapse of about an hour Erving was taken to an interrogation room where he was questioned by Foxall. The interrogation terminated after about twenty minutes, when it appeared that the petitioner was uncooperative in answering questions. From the interrogation room Erving was placed back in his cell about 1:00 or 2:00 p. m., where he remained until about 4:00 the same afternoon, when the police once again interrogated him. The petitioner was thereafter questioned approximately seven additional times by police officers during a nine-day period of incommunicado incarceration. Finally, on August 27, 1964, the petitioner made oral admissions to Foxall, which linked the petitioner to the robbery-murder. However, no written admission or confession was secured by the police from Erving.

The petitioner contends that he was held incommunicado from the time of his arrest on August 19, 1964, until his oral admissions made on August 27, 1964. To support that contention the petitioner's mother testified that at the time of her son's arrest she was at a hospital with a friend. After returning home about noon on the 19th of August she learned of her son's arrest and attempted to make contact with him by calling Lieutenant Wilson at the police station. Apparently, Wilson informed her that she would not be allowed to see her son. That same day she went to the police station to talk with her son but was told that she could not. The next day she returned once again to the police station in an effort to contact her son, only to find that her son was not permitted visitors.

The petitioner has raised five separate issues in his habeas corpus action:

1. Whether the admission into evidence of a statement obtained by the police during interrogations violated rights secured to the petitioner by the Sixth and Fourteenth Amendments;

2. Whether in the context of the "totality of the circumstances" the petitioner's statement was involuntary, whereby admitting it into evidence was violative of the due process clause of the Fourteenth Amendment;

3. Whether the procedure used by the trial court to ascertain voluntariness of the statement was violative of the due process clause of the Fourteenth Amendment;

4. Whether the admission into evidence of the oral and written confessions of petitioner's co-defendants, which implicated him in the robbery and murder, was violative of the confrontation clause of the Sixth Amendment;

5. Assuming a violation of the confrontation clause, whether the violation was harmless error beyond a reasonable doubt.

I. APPLICATION OF THE PER SE AND VOLUNTARINESS RULES

The principles of the landmark decision of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) are the touchstone for testing the conduct of the police in interrogation of the petitioner. If the trial court had found the facts of the interrogations to be as testified by the petitioner, the statement obtained by Foxall would have been per se inadmissible without any determination of voluntariness. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which according to Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) applies only prospectively, is inapplicable as far as prescribing a per se exclusionary rule to the questioned statement.

Assuming for a moment that the precepts of Escobedo were not violated during the police interrogation of the petitioner, the trial court, applying the "totality of the circumstances"¹ test, could have excluded the statement as secured in violation of the due process clause of the Fourteenth Amendment. Therefore, a bifurcated test must be implemented to ascertain the constitutional infringements alleged by the petitioner. First, the statement must be measured against the per se inadmissibility test predicated on constitutional rights protected by the Sixth and Fourteenth Amendments. Second, the statement must be tested for voluntariness.

However, before applying these tests a preliminary determination concerning the procedural device used by the state court to ascertain admissibility and voluntariness must be examined in light of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In Davis v. Sigler, Civ. 1171 L (unreported memorandum D.Neb.1968) Judge Van Pelt had occasion to adjudicate many of the issues presently raised in this case which under the doctrine of stare decisis govern the decision to be reached herein. Judge Van Pelt in rejecting Davis', one of the petitioner's co-defendants, attack on the state's voluntariness procedure stated:

"Petitioner claims, however, that the trial court applied an incorrect rule of law in reaching its determination in that the court only considered the `affirmative' evidence. According to petitioner, this was all the Nebraska law required at that time. In support of this contention, he cites Parker v. State, 164 Neb. 614, 620, 83 N.W.2d 347 and State v. Long, 179 Neb. 606, 616, 139 N.W.2d 813 (1966). The court in these cases does talk in terms of affirmative and negative evidence. However, just what is meant by these terms is not immediately clear. The petitioner contends in his brief that the rule means that the court can only consider evidence which is affirmatively stated and cannot consider evidence which is negatively stated such as that warnings were not given or the circumstances were not as claimed.

"It is obvious in this case, however, that the trial court did not apply the rule concerning negative evidence which petitioner contends was the law at that time because petitioner claimed that he was offered promises of release of his brother and friends if he would cooperate. The State's evidence was negative in the sense that petitioner is urging in that they said that promises had not been made to petitioner. The court in this instance obviously sustained the position of the State. A similar argument can be made about the claimed threats which were made to the petitioner and which he claims infected his confessions.

"It could even be argued that the old rule concerning affirmative evidence was even more in favor of the accused, as it required a showing that the affirmative evidence excludes any other hypothesis than that the statements were voluntary. See Parker, supra, 164 Neb. at 619, 83 N.W.2d 347, Long, supra, 179 Neb. 618 139 N.W. 2d 813.

"The state court (here) was very liberal in allowing petitioner to present all of his evidence at the hearing. As indicated in the Supreme Court's opinion, there is nothing to indicate that the trial court considered anything other than all of the evidence before it in reaching its decision. (State v. Erving, 180 Neb. 824, 146 N.W.2d 216 (1966) as incorporated in State v. Davis, supra.

"The court holds, therefore, that the trial court's determination was made on sufficient constitutional basis to entitle it to respect under Townsend v. Sain, 372 U.S. 293 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in those areas where the finding is specific enough to comport with the requirements of that case."

The petitioner, in this case, has offered no...