Holman v. Washington

• Decision Date: 08 August 1966
• Docket Number: No. 23039.,23039.
• Citation: 364 F.2d 618
• Parties: William C. HOLMAN, As Warden Kilby Prison, Montgomery, Alabama, Appellant, v. Caliph WASHINGTON, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

364 F.2d 618 (1966)

William C. HOLMAN, As Warden Kilby Prison, Montgomery, Alabama, Appellant, v. Caliph WASHINGTON, Appellee.

No. 23039.

United States Court of Appeals Fifth Circuit.

August 8, 1966.

David W. Clark, Asst. Atty. Gen., Montgomery, Ala., Richmond M. Flowers, Atty. Gen. of Alabama, for appellant.

Orzell Billingsley, Jr., Birmingham, Ala., David H. Hood, Jr., Bessemer, Ala., Charles Morgan, Jr., Atlanta, Ga., Robert L. Carter, New York City, Erskine Smith, Birmingham, Ala., for appellee.

Before JONES and GEWIN, Circuit Judges, and HUNTER, District Judge.

GEWIN, Circuit Judge:

Upon petitioner's application for a writ of habeas corpus, in the United States District Court for the Middle District of Alabama, 28 U.S.C.A. §§ 2241, 2254, the court held that the admission into evidence of a confession obtained without the presence of counsel and the admission into evidence of the testimony of a witness from a previous trial without the laying of a proper predicate violated petitioner's constitutional rights under the Sixth and Fourteenth Amendments and ordered the petitioner to be discharged from custody. Washington v. Holman, D.C., 245 F.Supp. 116 (1965). This is an appeal from that order of the District Court granting the writ of habeas corpus.

On July 12, 1957, police officer, James B. Clark, of Lipscomb, Alabama, received a fatal wound from a bullet fired from his own pistol. Two days later the petitioner, a 17 year old Negro boy, able "to read and write a little," was arrested in Mississippi by a Mississippi officer and the pistol of the deceased was found in his possession. An Alabama police officer testified that while escorting the petitioner back to Alabama, he confessed to shooting the police officer in an attempt "to get away from the police." Thereafter, while incarcerated in Alabama, prior to indictment and without benefit of counsel, a written confession was obtained from him.

Petitioner was indicted by the Grand Jury of Jefferson County, Alabama, on a charge of murder in the first degree on September 12, 1957. Being unable to employ counsel, the court appointed counsel to represent him. He was tried on October 8, 1957, and convicted of murder in the first degree and sentenced to death, but the conviction was reversed by the Alabama Supreme Court and the cause remanded on February 12, 1959. Washington v. State, 269 Ala. 146, 112 So.2d 179.¹ On re-trial, December 9, 1959, petitioner was found guilty as charged and on appeal the conviction and sentence were affirmed on October 4, 1962. Washington v. State, 274 Ala. 386, 148 So.2d 206. After exhausting his state remedies as required by 28 U.S.C.A. § 2254, he petitioned the District Court for a writ of habeas corpus on December 3, 1964. The court in granting the writ found that petitioner was convicted in violation of his constitutional rights to the assistance of counsel and to confrontation and cross-examination of the witness against him.²

It is the contention of appellant that the District Court erred in finding the conviction of petitioner unconstitutional. First, appellant contends that the admission into evidence of petitioner's confession made without counsel, offer of counsel or waiver of counsel did not violate his constitutional right to the assistance of counsel. Second, appellant contends that the proper predicate was laid for the admission into evidence of testimony of a witness taken at a prior trial and therefore petitioner's constitutional right to confrontation and cross-examination of the witness against him was not violated.

I

The only reference in the record to the facts surrounding the confession is in the opinion and order of the District Court Judge. The opinion reads:

"After Washington had been returned to the State of Alabama and while incarcerated prior to indictment and without the benefit of counsel, a written confession was obtained from Washington by `Chief\' Wilton H. Hogan, Chief Deputy Clyde Morris, Criminal Investigators W. C. Dean and C. E. Walker, together with the Deputy Coroner, J. W. Thompson."

This confession was admitted into evidence over the objection of petitioner's counsel, that it was obtained without benefit of counsel.³

The District Court in determining the admissibility of the confession concluded that the Escobedo⁴ case was controlling. In Escobedo the Supreme Court reversed the conviction of a 22 year old defendant of Mexican extraction and held that damaging statements made by the defendant during interrogation without being permitted to contact his lawyer were inadmissible at trial. The often quoted language of Escobedo,

"That, where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel\' in violation of the Sixth Amendment * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial,"

was the guiding principle in the District Court's determination that petitioner's confession was inadmissible.

A more recent case, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, June 13, 1966), established standards for in-custody interrogation, among which are: Prior to any questioning, the person must be advised that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly, and intelligently. The prosecution may not use any statement stemming from interrogation of the defendant unless these procedural safeguards or other fully effective measures are employed. Thus Miranda being a further exploration into the problem of self-incrimination as dealt with in Escobedo supports the District Court's conclusion as to the non-admissibility of petitioner's confession if the principles announced in those cases were not limited in their application retrospectively.

Subsequent to the District Court's decision, the Supreme Court decided Johnson v. State of New Jersey, 384 U.S. 719 (86 S.Ct. 1772, 16 L.Ed.2d 882, June 20, 1966), which precludes us from applying the principles of Escobedo and Miranda in judging the admissibility of petitioner's confession. The Supreme Court concluded that their holdings in the two cases should not be applied retroactively but should apply only to cases commenced after those decisions were announced. Since the ruling in Escobedo is available only to persons whose trials began after June 22, 1964, and Miranda after June 13, 1966, petitioner is excluded; since his trial began on October 8, 1957, many years before these cases were decided.

But the Court emphasized that even though Escobedo and Miranda were to be given only prospective application, case law on coerced confessions is available for persons whose trials have already been completed. Thus the Johnson decision does not preclude persons from invoking the safeguards established in Escobedo and Miranda as part of an involuntariness claim. The failure of the state to meet these standards would be one factor to be considered by the court in determining whether the resulting confession was involuntary. Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Thus the totality of the circumstances which produced the confession must be examined by the court, and only after weighing all the factors involved could a decision be made as to the involuntariness of a confession.

As heretofore stated, one of the chief contentions of the petitioner is that the confession obtained by the police was elicited when he was without counsel and had not been offered free counsel. So far as the record discloses the issue of voluntariness or involuntariness of the confession was not presented to the District Court or decided by it. However, interrogation without the presence of counsel may be considered as one factor (among many others) tending to prove involuntariness. In view of our decision with respect to the admission into evidence of the testimony of the absent witness appearing later in this opinion, plus the fact that the voluntariness issue does not appear to have been an issue in the District Court, we find it unnecessary and inappropriate to make a determination of that issue.⁵ See Marion v. Harrist, 363 F.2d 139 (5 Cir. 1966).

Since Escobedo and Miranda cannot be retroactively applied to this case, we must reverse the finding of the District Court that the confession was inadmissible under the standards of Escobedo.

II

The second claim of error brought to us for decision involves whether a proper predicate was laid for the admission into evidence of testimony of a witness at a prior trial.

The Alabama Supreme Court has stated that when a witness is absent from the jurisdiction, his testimony taken on any previous trial for the same offense may be offered and admitted in a subsequent trial provided a proper predicate is laid. Reeves v. State, 264 Ala. 476, 88 So.2d 561 (1956). In such a situation the requirements that must be met before the testimony is admissible, Reeves v. State, supra; Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837 (1950), are four-fold: (1) Proper proof of absence from the jurisdiction; (2) Substantially the same issues and parties in the subsequent trial; (3) Testimony of witness must have been given under...