Jamerson v. Estelle

Decision Date25 January 1982
Docket NumberNo. 80-1683,80-1683
Citation666 F.2d 241
PartiesMcCoy JAMERSON, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. . Unit A *
CourtU.S. Court of Appeals — Fifth Circuit

Sharon Garner, c/o Vinson & Elkins, Houston, Tex., for petitioner-appellant.

Mark White, Atty. Gen., Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, GEE and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

On February 6, 1970, McCoy Jamerson was arrested in Grand Prairie, Texas, for public drinking and illegal parking. Two days later, after being informed of his Miranda rights, 1 Jamerson confessed to a January 20, 1970 Pantego, Texas, service station robbery, during which his accomplice murdered the attendant. On March 17, 1970, a Texas grand jury indicted Jamerson for this armed robbery.

In April of 1971, Jamerson was tried and convicted of an unrelated homicide and sentenced to death. 2 The Texas statute prescribing the death penalty was declared unconstitutional by the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Subsequently, on February 15, 1974, Jamerson's sentence was commuted to life by the Governor of Texas.

No steps were taken to further the prosecution of the indictment for the Pantego armed robbery until 10 months after the Supreme Court nullified the Texas death penalty. On June 5, 1973, counsel was appointed to represent Jamerson on the armed robbery charge. The case was tried in November of 1973, ending in a mistrial resulting from a hung jury. The re-trial of the armed robbery charge ended on March 19, 1974, with a verdict of guilty and assessment of a sentence of 50 years imprisonment. On November 5, 1975, this conviction was affirmed by the Texas Court of Criminal Appeals, which subsequently refused to grant habeas relief. The instant application for federal habeas relief under 28 U.S.C. § 2254 was denied by the district court. We affirm.

On appeal, Jamerson claims four errors: (1) denial of his sixth amendment right to a speedy trial; (2) denial of due process by the cumulation of sentences; (3) denial of constitutional rights because of the delay between his indictment and service of that indictment; and (4) use of an unconstitutionally obtained confession.

I. RIGHT TO A SPEEDY TRIAL

Between the indictment and trial on the armed robbery charge 44 months elapsed. We must determine whether this delay violated Jamerson's sixth amendment right to a speedy trial by applying the standard articulated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Recently, in United States v. Greer, 655 F.2d 51, 52 (5th Cir. 1981), we summarized the tetrad standard against which we must measure the elusive speedy trial guarantee: "(1) duration; (2) reason for the delay; (3) defendant's assertion of the right; and (4) prejudice caused by the delay." No single factor is determinative in the analysis; they "must be considered together with such other circumstances as may be relevant." 407 U.S. at 533, 92 S.Ct. at 2193.

As a threshold consideration, the length of the delay must be examined and found to be "presumptively prejudicial." Otherwise, inquiry into the other considerations is unnecessary. See United States v. Walters, 591 F.2d 1195 (5th Cir. 1979), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1980); United States v. Wentland, 582 F.2d 1022 (5th Cir. 1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979); United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978). The 44 month period in the instant case is almost triple the 15 month delay decreed presumptively prejudicial in United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). With the threshold consideration satisfied, we turn our attention to the reasons for the lengthy, presumptively prejudicial, delay.

From April 22, 1971 until February 15, 1974, Jamerson was under a death sentence. Texas argues that the existence of this death sentence provides a legitimate, justifiable reason for the post-indictment delay presently in question. The contention is manifestly well-founded. In Turner v. Estelle, 515 F.2d 853 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976), we recognized that conservation of prosecutorial and judicial resources is a valid ground for a post-indictment delay and noted that: "Texas' position is that it justifiably chose not to expend scarce judicial and prosecutorial resources in trying a defendant facing a death sentence, the execution of which would have eliminated the need for any trial at all." 515 F.2d at 856. We found this reasoning to be compelling in Turner.

The case before us presents a situation closely akin to the factual circumstance in Turner. After Jamerson was indicted for armed robbery, he was convicted of murder and sentenced to death. The validity of this sentence was put into question by the Furman decision of the United States Supreme Court in June, 1972. Afterwards, the sentence was commuted to life. In the meantime, when the likelihood of commutation became apparent, the Texas authorities proceeded with the prosecution of the robbery indictment. Sixteen months elapsed between the Furman decision and the trial on the robbery charge.

We believe it appropriate to examine the 44 months in discrete parts. The failure to prosecute from the time of indictment until Furman was announced is entirely excusable. During that time Jamerson was incarcerated under a sentence of death. The sixth amendment does not require that he be brought to trial for a non-capital offense during that period.

Moreover, the Texas prosecutorial authorities refer to the uncertainty inherent in Jamerson's position until the actual commuting of his sentence. Although we do not accept as reasonable total inaction until the formal commutation, the record reflects that the Texas authorities began prosecutorial steps. Jamerson was brought to trial prior to the commutation order. Hence, the period of delay alone does not suffice to justify overturning the conviction. 3 In striking the appropriate sixth amendment balance, we must examine the third and fourth Barker v. Wingo elements.

The third factor outlined in Barker v. Wingo concerns the defendant's action or inaction in asserting the speedy trial right. In June, 1973 counsel was appointed to aid Jamerson in his defense of the armed robbery charge. Neither Jamerson nor his counsel complained of delay until November 12, 1973, the day the trial began. Considering all of the circumstances, the district court, in adopting the federal magistrate's report, assigned a neutral value to this inaction. We consider significant the fact that neither Jamerson nor his attorney pressed for a swifter trial.

The fourth and final consideration in the Barker v. Wingo equation, prejudice, is "the most difficult to evaluate qualitatively and quantitatively." United States v. Greer, 655 F.2d at 53. In the analysis of the prejudice issue, we find valuable assistance in the Supreme Court's identification of three interests which are guarded by the right to a speedy trial: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." 407 U.S. at 532, 92 S.Ct. at 2193.

The first two interests are not applicable in the instant suit. Jamerson was lawfully incarcerated under a death sentence during nearly all of the delay time. Oppressive pretrial incarceration is not an issue. Further, in view of the pending death sentence, an outstanding armed robbery indictment could occasion little additional anxiety or concern.

Only the third interest, impairment of a defense, raises a substantial question. Following Jamerson's arrest in Grand Prairie on February 6, 1970, he confessed to the Pantego armed robbery and murder as well as other offenses. 4 At his trials, the principal prosecution witnesses were Marvin Stapleton, Chief of Police, Pantego, Texas, and Donald Sherman, Grand Prairie police department, whose recall of the events surrounding Jamerson's arrest and confession were at times spotty. 5 The lapse of witnesses' memories may impair a defendant's ability to present his defense.

However, while "faded memory may result in prejudice, we have held that in order to prejudice the defense to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue." United States v. Edwards, 577 F.2d 883, 889 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978). See United States v. Avalos, 541 F.2d 1110 (5th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). Jamerson has made no affirmative showing how the lapse of memory by the prosecution's witnesses impaired the presentation of his defense. We cannot raise speculation or mere conclusional observations regarding a witness' memory to the level of constitutional prejudice. Jamerson has failed to demonstrate sufficient prejudice resulting from the post-indictment delay to obtain relief under the Barker v. Wingo rubric.

II. CUMULATIVE SENTENCE ORDER

At the conclusion of Jamerson's state court armed robbery trial, the court assessed a 50 year sentence and stated:

the sentence in this cause shall commence when the Judgment and sentence in Cause No. C-70-1351-KL for the offense of murder received in Dallas County, Texas, and the Punishment of Death, commutted to Life, received on April 22, 1971, has ceased to operate.

Eighteen months later the court entered a nunc pro tunc order which included the number of the Dallas court in...

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