Gilbert v. Beto

• Decision Date: 31 July 1967
• Docket Number: Civ. A. No. 66-H-157.
• Citation: 274 F. Supp. 847
• Parties: Willie GILBERT v. Dr. George J. BETO, Director, Texas Department of Corrections.
• Court: U.S. District Court — Southern District of Texas

274 F. Supp. 847

Willie GILBERT v. Dr. George J. BETO, Director, Texas Department of Corrections.

Civ. A. No. 66-H-157.

United States District Court S. D. Texas, Houston Division.

July 31, 1967.

Edward R. Baird, Houston, Tex., for petitioner.

Dunklin Sullivan, Asst. Atty. Gen. of Texas, Austin, Tex., for respondent.

MEMORANDUM AND OPINION

SINGLETON, District Judge.

Petitioner, Willie Gilbert, was convicted of murder with malice in 1953 and was sentenced to 99 years in the State penitentiary. Maurice Sampson, his co-indictee, was convicted and sentenced to death. Both convictions were affirmed on appeal. Sampson v. State, 160 Tex. Cr.R. 302, 268 S.W.2d 661 (1953); Gilbert v. State, 159 Tex.Cr.R. 424, 265 S.W.2d 110 (1953). Sampson was electrocuted in 1954, and now, after serving 14 years of his sentence, Willie Gilbert has petitioned this court to set aside his own conviction on the ground that his confession offered into evidence at trial was unconstitutionally obtained. On agreement of counsel appointed for petitioner and counsel for respondent, the case was submitted on briefs and the transcript made at petitioner's trial.

Before setting forth the facts gathered from petitioner's trial transcript, I feel it appropriate first to set forth the basic principles which control this court's review of the case. Since Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), it has been established that the admission into evidence of an accused's confession which is not the product of a free choice violates due process. This is true, although there might be independent evidence in the record sufficient to sustain the conviction,¹ for the issue is in essence one of procedural due process. In determining whether a confession is admissible, the constitutional test is the voluntariness of the confession rather than its trustworthiness, as might be indicated by its truth or falsity. E. g., Blackburn v. State of Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242 (1961); Watts v. State of Indiana, 338 U.S. 49, 50, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). Voluntariness, in turn, is determined by weighing the totality of the circumstances surrounding the making of the confession and evaluating their probable effect on the confessor, with his peculiar weaknesses and strengths. Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077 (1953); see Crooker v. People of State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed. 2d 1448 (1958). Where, as here, the trial occurred before the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the principles announced there are relevant, but only insofar as they bear on the issue of voluntariness. See Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (April 24, 1967); Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

Proceeding to an examination of petitioner's transcript, I find the following facts, excerpted for the most part from the testimony of State witnesses, to be substantially undisputed. On January 6, 1953, Mrs. Ruth McCasland was brutally murdered while working in a flower shop located on North Shepherd Boulevard in Houston, Texas. In order to facilitate investigation of the crime, the Harris County Sheriff set up a temporary headquarters in an old cafe near the flower shop, approximately six miles from the downtown Sheriff's office. (T. 73, 84). There, officers of the Sheriff's Department worked around the clock from January 6 to January 12. (T. 94, 324). To this location officers brought some ten to fifteen suspects. (T. 360). Petitioner was among that number.

Petitioner's first contact with the police occurred less than twenty-four hours after the murder was committed, and from that time petitioner was never again outside the absolute control of the Sheriff's Department until he confessed on January 11. At approximately 10:00 A.M. on January 7, petitioner was arrested without warrant or probable cause several blocks from the flower shop. (T. 102). Although the arresting officers testified that he was arrested on suspicion of tire theft, they carried him immediately to the flower shop where he was questioned by Sheriff Kern. (T. 78, 79). Sheriff Kern testified that he questioned petitioner about the tire theft for fifteen or twenty minutes, while petitioner testified that he was questioned about the murder. Sheriff Kern also testified that he did not obtain evidence sufficient to warrant questioning petitioner about the murder until January 8, (T. 81), but it is clear from other testimony that attention focused on petitioner as a suspect on the very day of his arrest.

After leaving the flower shop, Deputy Sheriff Randio, one of the arresting officers, carried petitioner to the county jail, and later that day filed a vagrancy complaint against him. Deputy Randio's undisputed testimony on cross-examination demonstrates that there was no factual support for the complaint and reveals that the true purpose for the filing of the complaint was to allow the Sheriff's Department to hold petitioner for investigation in the murder. Deputy Randio testified in part as follows:

"Q. What was the basis for the filing of that complaint against Willie Gilbert?

"Mr. Scott. If the Court please, the complaint speaks for itself.

"The Court. Not under these circumstances.

"A. He was put in jail for burglary.

"Q. For burglary?

"A. Yes.

"Q. Do you know, Mr. Randio, if any other officers in the Sheriff's Department, are you a member of it? sic Had anything to do with the filing of this complaint for vagrancy in the Justice of the Peace Court besides yourself?

"A. I filed the charge.

"Q. Did Sheriff Kern tell you to do this?

"A. No, not on that vagrancy charge. (Emphasis Added.)

"Q. Did any other officer or deputy sheriff of Harris County tell you to file vagrancy on him?

"A. No.

"Q. When you filed the complaint you knew what the charge was, didn't you?

"A. Yes, sir, it was a vagrancy charge.

"Q. Did you know whether the boy was working or not, Willie Gilbert, when you filed this complaint?

"A. No, sir, I didn't know whether he had a job. (Emphasis Added.)

"Q. Did you know whether he lived with his parents, had a home in Houston?

"A. I didn't know anything about him. (Emphasis Added.)

"Q. Did you ask him whether or not he had a job?

"A. No, but I sic ask him where he got that radiator he had in the car and he told me it was stolen.

"Q. Why didn't you file a charge on him for theft?

"A. We were working on a murder, the man was picked up and taken to jail, we were out there looking for something around the murder area. (Emphasis Added.)

"Q. You didn't mention anything to Judge Ragan sic this boy might be a possible suspect in this murder?

"A. I don't know.

"Q. Did you know whether this boy you caused a complaint for vagrancy to be filed against him was employed or not at the Blue Diamond?

"A. No, I didn't know, I didn't talk to him that long.

"Q. Having been told he sic stold a radiator which was in his automobile why didn't you file charges of theft against him?

"A. We were out searching the area for anything in connection with the murder, he was turned over to Sheriff Kern and Chief Frazier, as a matter of fact Chief Frazier was with me when he was arrested." (Emphasis Added.) (T. 218-221).

On the vagrancy complaint filed by Deputy Randio appeared the notation "Hold for Homicide Div. $500." Attempts by petitioner's trial counsel to ascertain from Deputy Randio when the notation was made, by whom, and at whose bidding proved fruitless.

"Q. Look what it says on the complaint, have you noticed the notation in ink here at the bottom, what does that say?

"A. That is not mine.

"Q. Read it?

"A. Hold for homicide investigation.

"Q. Did you give Judge Ragan that information?

"A. I don't remember. (Emphasis Added.)

"Q. You don't remember, would you say you did or didn't?

"A. I don't remember. (Emphasis Added.)

"Q. Did you tell Judge Ragan you wanted them held for an alleged robbery that had been committed?

"A. I don't think the Judge sic ask." (T. 218-19).

Judge Ragan did remember, however, for he testified that he personally made the notation and that he did so on January 7, the date the complaint was filed. (T. 215, 217). Thus, despite the testimony of Sheriff's officers that petitioner was not considered a suspect until some unstated date between January 7 and January 11, (T. 93), I am of the opinion that petitioner was considered a suspect on January 7 and was held as such.

Bearing in mind that petitioner was held as a suspect on January 7, although Sheriff Kern's testimony is undisputed that his department had no basis on which to question petitioner until January 8, careful scrutiny must be given to the treatment subsequently accorded him. Compare Haley v. State of Ohio, 332 U.S. 596, 600, 68 S.Ct. 302, 92 L.Ed. 224 (1948). Since petitioner's detention was unlawful at the outset, it is not surprising to discover that Sheriff's officers failed to take him immediately before a magistrate as required by state law.² Presentment before a magistrate was delayed until after petitioner confessed on January 11, (T. 79), and he was not informed of his right to remain silent until he was prepared to give a statement. (T. 64-65). At no time was petitioner advised of his right to counsel. Ibid. Moreover, from the day of his arrest until the confession was signed, petitioner was denied the counsel and comfort of relatives, friends, or an attorney because it was the rule at county jail that prisoners were not permitted to have visitors except on Saturday. (T. 99). In petitioner's case, this meant total isolation until he confessed.³

What happened to petitioner during the five-day period in which he...