Hoover v. Beto, Civ. A. No. 68-H-581.

• Decision Date: 29 December 1969
• Docket Number: Civ. A. No. 68-H-581.
• Citation: 306 F. Supp. 980
• Parties: Sam HOOVER, Petitioner, v. Dr. George J. BETO, Director of Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

306 F. Supp. 980

Sam HOOVER, Petitioner, v. Dr. George J. BETO, Director of Texas Department of Corrections, Respondent.

Civ. A. No. 68-H-581.

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

November 18, 1969.

Certificate of Probable Cause Denied December 29, 1969.

Warren Burnett, Odessa, Tex., Luther Jones, Jr., Corpus Christi, Tex., Raeburn Norris, Houston, Tex., for petitioner.

Lonny F. Zwiener, Austin, Tex., for respondent.

MEMORANDUM AND ORDER:

HANNAY, District Judge.

Petition for Writ of Habeas Corpus. Title 28, U.S.C.A., Section 2241 et seq.

Petitioner is presently serving a sixty year sentence for his conviction in the criminal district court of Harris County, Texas as an accomplice to the felony offense of robbery by firearms. The conviction was affirmed by the Texas Court of Criminal Appeals in Hoover v. Texas, 390 S.W.2d 758.

The prosecution arose out of a particularly sinister, brutal and prolonged armed intrusion into a home that carried with it the indicia of conspiratorial intent to commit major theft and even syndicated criminal enterprise. The operative facts in the state prosecution were stated by the Texas Court of Criminal Appeals in Hoover v. Texas, supra, at 759-760:

"* * * The indictment alleged that on or about March 11, 1964, and before the commission of robbery by firearms of Mair Schepps, by John Oscar Young, Samuel Spivey, and Calvin Sellars, the appellant did unlawfully and wilfully advise, command, and encourage them to commit said offense, the appellant not being present at the time of the commission of the robbery by said three named persons. * * *"

"The evidence reveals that after Spivey, Young, and Sellars had been advised by the appellant that Schepps had $300,000 in money in his home, the appellant encouraged them among other things, to "get you a car and equipment (guns) and get ready to go in," and he also told them where to look for the money in the house. These three men, wearing masks, two of whom were armed with pistols and one with a sawed-off shotgun, went to the Schepps' home about 7 P.M., March 11, 1964. While they were preparing to enter the house, Mrs. Tuck, a nurse employed by Schepps, left the house to go to a nearby garage apartment and she was knocked unconscious by one of the masked men. Two of the robbers entered the main house and violently assaulted Mr. and Mrs. Schepps and the third robber brought Mrs. Tuck into the house shortly thereafter.

"After numerous unsuccessful inquiries about the $300,000 the robbers' acts of violence and torture increased, to compel the Schepps to reveal the location of the money. Mrs. Schepps' jaw was broken, and some of her teeth were knocked out and others loosened; she was burned across the abdomen with a heated butcher knife; she was repeatedly burned on her face and body with cigarettes, and also repeatedly shocked with an electric wire placed to her teeth, breasts and private parts; a fireplace poker and a pistol were inserted into her vagina; and she was shot in the thigh with a .44 magnum pistol as she lay prostrate on the floor. Mr. Schepps was severely and brutally beaten and lay unconscious for short periods of time during the three-hour attack. The injuries of Mrs. Tuck were not so serious, but she required several days of hospitalization. The Schepps' ten-month old baby was threatened, and a shot was fired into the baby bed where the child lay. Most of the furniture and furnishings in the house, especially those on the second floor, were torn, broken, demolished, and scattered in an intense and violent search for the $300,000 reportedly hidden therein.

"Mair Schepps testified that he was in fear of his life and serious bodily injury when the robbers, against his will, took from him $3,900 in money, a man's diamond ring of 4.83 carats, and a 2.70 carat diamond necklace."

* * * * *

"Testifying as a state's witness, Samuel Spivey stated that appellant told him and Young about the $300,000 in money in the Schepps' home; that after he and Young had viewed the Schepps' house, they told appellant that another man was needed for the job and he selected Sellars. * * *"

Two of the alleged principals were convicted as such and assessed the death penalty. Young v. Texas, Tex.Cr.App., 398 S.W.2d 572; Sellars v. Texas, Tex. Cr.App., 400 S.W.2d 559.

Petitioner has now exhausted his available state remedies, Article 11.07, as amended, Vernon's Ann.C.Cr.P., as required by law. Title 28, U.S.C.A., Section 2254.

Petitioner attacks the constitutionality of his conviction on two grounds. One is that evidence which was the object of an illegal search and seizure was introduced at the trial. The other is that his right to confront and cross-examine adverse witnesses was violated by the introduction into evidence of testimony of a police officer that included oral admissions by a co-indictee which implicated Petitioner in planning the robbery. The factual basis for these contentions is to be determined from the record as both parties elected not to present further evidence at the hearing granted by the Court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

It is not disputed that the affidavit supporting the warrant under which the search in question was executed was itself insufficient in light of the subsequent case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (June 15, 1964). The search was executed in March of 1964. The evidence consequently seized by the arresting officers included certain diamonds which additional proof at the trial strongly tended to show were owned by the victims of the robbery and had been taken from them by those who perpetrated the robbery. The trial of instant case began in July of 1964.

The Respondent relies heavily upon the contention that Petitioner, an attorney with extensive experience in criminal law, in fact consented to the search independent of any search warrant. A search without a warrant or without a proper warrant may be made if the party searched consents thereto and the consent is not the product of coercion. Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Pekar v. United States, 5 Cir., 315 F.2d 319, 325; Ray v. United States, 5 Cir., 84 F.2d 654, 656; Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 651; Montana v. Tomich, 9 Cir., 332 F.2d 987; Channel v. United States, 9 Cir., 285 F.2d 217; McDonald v. United States, 10 Cir., 307 F.2d 272; previously cited, supra; United States v. Elliott, D.C., 210 F.Supp. 357. See also: Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (June, 1968), to which this opinion will more fully advert hereinafter.

It is significant to note that the foregoing pre-Bumper case authorities, with the exception of the Ninth Circuit case of Montana v. Tomich, supra, involved direct appellate review of felony prosecutions. This is significant because the issue involves both the burden and the quantum of required proof. (Emphasis added throughout).

The Respondent additionally relies upon the proposition that since Petitioner's wife was subsequently called to testify that the diamonds were theirs (S/F, 920-922) any error in their introduction into evidence was thereby cured, citing Haid v. United States, 9 Cir., 157 F.2d 630; McDonald v. United States, 10 Cir., 307 F.2d 272; Caldwell v. United States, 8 Cir., 338 F.2d 385.

Facts and circumstances that would tend to prove consent are reflected in the testimony of Officer Hodges (S/F, pp. 670-700). This will be adverted to hereinafter in this opinion. As indicated, Hodges and other peace officers executed the search in question some several months before the announcement of Aguilar by the United States Supreme Court.

I.

In a series of recent decisions, the United States Supreme Court has turned to the far reaching issue of the time-embracing scope of principles of criminal procedure which henceforth will bear the dignity of federal constitutional guarantee. The question has been more frequently stated as being the retroactive or prospective applicability of a particular rule in relation to the date of its announcement.

Initially presented here for determination is the chronological applicability of Aguilar v. Texas, supra. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (June, 1965), the United States Supreme Court announced that the rule in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R. 2d 933 (1961), which over-ruled Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and held that the exclusion of evidence seized in violation of the search and seizure provisions of the Fourth Amendment was required of the states by the due process clause of the Fourteenth Amendment, was not to be retroactively applied. Linkletter clearly pointed out that the exclusionary rule of Mapp stood upon a different jurisprudential basis from certain criminal procedural rules which involve "* * * the fairness of the trial—the very integrity of the fact-finding process." 381 U.S. at 639, 85 S.Ct. at 1743. In treating retroactivity in later cases the United States Supreme Court has substantively developed and more clearly defined as required by the controversy before it the aforementioned test enunciated in Linkletter. In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (June, 1966) the Supreme Court rejected retroactive applicability for the criminal procedural rules it had announced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (June, 1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June, 1966). It is clear that the Supreme Court can in the interest of justice make a rule non-retroactive where the exigencies of the particular situation require this result; and, in making this determination, it can consider such factors as the purpose of the...