In re Luallen

• Decision Date: 18 September 1970
• Docket Number: Civ. A. No. 7031.
• Citation: 321 F. Supp. 1236
• Parties: In re Daniel Leon LUALLEN.
• Court: U.S. District Court — Eastern District of Tennessee

321 F. Supp. 1236

In re Daniel Leon LUALLEN.

Civ. A. No. 7031.

United States District Court, E. D. Tennessee, N. D.

September 18, 1970.

Daniel Leon Luallen, in pro. per.

Lance D. Evans, Asst. Atty. Gen., Nashville, Tenn., for respondent.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Daniel Luallen, sometimes referred to as petitioner, who is confined in the state penitentiary at Nashville pursuant to a conviction for first degree murder, has filed his second habeas corpus petition in this Court. The initial petition was transferred from the Middle District of Tennessee pursuant to 28 U.S.C. § 2241 and denied for failure to exhaust available state remedies. Luallen v. Henderson, Civil Action No. 6046, September 5, 1967. Petitioner has subsequently been denied relief in the state courts and has exhausted available state remedies.¹

Luallen was indicted with two others for the first degree murder of a prominent contractor in rural Roane County on March 21, 1950. Under the State's theory, the three were resisted by the contractor during a robbery attempt. In the resulting gunplay, the contractor was wounded and died almost immediately, Luallen was wounded and he and his accomplices fled to their homes in Knoxville. Luallen was shortly thereafter admitted to a Knoxville hospital and subsequently arrested at the hospital. Upon his release by the hospital, petitioner was delivered into the custody of the Sheriff of Roane County. On cross-examination, Sheriff Stinecipher testified that "Luallen said on the way from Knoxville he didn't care to make any statement until he saw his attorney. And up to this day he has never made a statement." (Petitioner did not testify at the state post-conviction proceeding.) According to the Sheriff, about a week or ten days after Luallen had been released from the hospital, Rudder, the confessed accomplice, was brought to the jail. There before Luallen, the co-defendant Sands, the Sheriff and three other persons, Rudder related his confession which clearly implicated Sands and Luallen. The Sheriff testified that Luallen remained absolutely silent. These facts were developed after petitioner's counsel interposed the following objection:

"MR. HANNAH: If the court, please, the defendant Luallen objects to any repetition of any statement made by Eddie Rudder at the Kingston jail in the presence of Luallen, for the reason that the defendant Luallen was sick, had a recent appendix operation and gun shot wound, absence of his attorney, in the custody of officers, helpless like a lamb before the shearing and told the sheriff he would make no statement unless he had his attorney, and that the statement made here in his presence in this county jail was in violation of his rights under the statute, and under the constitution to be represented by counsel, and to come now and recite that again and attempt to hold that against him as a confession or admission is in violation of his rights as a citizen under the law and constitution of the State. The man was under every handicap, sick mentally and sick physically."

The trial court ruled any statement made by Rudder admissible and allowed the Sheriff to relate those statements. Counsel for Luallen while expressly reserving his exception allowed the Sheriff to condense Rudder's statements. This evidence supplied by the Sheriff was more or less cumulative to that of Rudder.

Neither defendant testified. The trial court charged the jury that no inference could be taken from the defendants' failure to testify. Subsequently, he charged:

"INFERENCE OF GUILTY.

"When a statement is made in the presence and hearing of one accused of an offense and the statement tends to incriminate him, or is of an incriminating character, and the statement is not denied or objected to by the accused, both the statement and the fact of his failure to deny it or make any response to it is admissible against the accused as evidence of his acquiesence in its truth. And our Supreme Court has said that where a defendant fails to deny or to object to such statement that it is to be taken by the jury as an inference of his guilt."

Petitioner contends that he was denied the assistance of counsel at a critical stage of the proceedings; that the violation of this right is retroactive, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and that he should be granted a new trial for the violation of his Sixth Amendment right. The Court is of the opinion that this pre-trial investigation proceeding was not a critical stage in the criminal proceeding within the context of Gideon. See Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The proceeding conducted by the Roane County Sheriff was in the nature of a pre-trial custodial interrogation. There was no right to the assistance of counsel at such a proceeding in 1950. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Petitioner contends that the Sheriff's testimony concerning his silence when confronted with Rudder's accusation and the charge of the trial court that instructed the jury that his failure to deny the accusation could be taken as an inference of guilt violated rights protected by the Fifth Amendment and made applicable to the state by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed. 2d 653 (1964). The use of such tacit admissions in federal criminal cases, especially when the defendant is in the custody of law enforcement officers, has not been approved. e.g. McCarthy v. United States, 25 F.2d 298 (C.A. 6, 1928); also see United States v. Brinson, 411 F.2d 1057 (C.A. 6, 1969) holding the use of such evidence "plain error." F.R.Cr.P. 52(b). More recently the use of such admissions by the states has been held erroneous.

"* * * It is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966).

While the Court is unaware of any decision on this particular point, other rules established by Miranda and applicable to the states have been held to operate prospectively only. Johnson v. New Jersey, supra. Consequently, the voluntary-in-voluntary standard that governed the use of confessions before Miranda controls this trial conducted in 1950.

There is authority that the use of tacit admissions is either an involuntary confession or such an unfair procedure that other facets of due process have been denied. U. S. ex rel. Smith v. Brierly, 267 F.Supp. 274, aff'd 384 F.2d 992 (C.A. 3, 1967); U. S. ex rel. Staino v. Brierly, 269 F.Supp. 753, aff'd 387 F. 2d 597 (C.A. 3, 1967). See U. S. ex rel. Parker v. McMann, 308 F.Supp. 477 (S. D.N.Y., 1969). Notwithstanding these authorities, this Court is not persuaded that the use of a tacit admission is to be equated with an involuntary or coerced confession. Involuntary confessions resulted when policemen through physical or psychological pressures compelled persons accused of crimes to admit certain incriminating acts. Assuming that the Sheriff even arranged Rudder's accusations, the Court does not equate these acts with those acts that were generally productive of involuntary confessions. The authorities indicate that this admission arose from a rule of evidence that made the conduct of an accused when confronted admissible in certain circumstances. Wigmore on Evidence (3d ed.) §§ 292, 1071; McCormick on Evidence (1954 ed.) § 247.

In this sense the Court is of the opinion that tacit admissions when used are more analogous to comment upon the failure to testify than to involuntary confessions. Comment upon the failure to testify has also been condemned. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). An examination of the charge in Griffin, supra, 380 U.S., at 610, 85 S.Ct. 1229, and in Chapman, supra, 386 U.S. at...