Lavallis v. Estelle

• Decision Date: 23 January 1974
• Docket Number: Civ. A. No. 73-H-367.
• Citation: 370 F. Supp. 238
• Parties: Alton J. LAVALLIS v. W. J. ESTELLE, Director, Texas Department of Corrections.
• Court: U.S. District Court — Southern District of Texas

370 F. Supp. 238

Alton J. LAVALLIS v. W. J. ESTELLE, Director, Texas Department of Corrections.

Civ. A. No. 73-H-367.

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

January 23, 1974.

Robert G. Richardson, Staff Counsel for Inmates, Huntsville, Tex., for petitioner.

Jack Boone, Asst. Atty. Gen., Austin, Tex., for respondent.

MEMORANDUM AND ORDER

SINGLETON, District Judge.

On January 10, 1968, petitioner was convicted in state court of murder with malice. A jury assessed his punishment at fifty years in the Texas Department of Corrections. His conviction was affirmed by the Texas Court of Criminal Appeals October 15, 1969.¹

His state remedies exhausted, petitioner filed this application for writ of habeas corpus under Section 2241 et seq., Title 28 U.S.C., and is proceeding in forma pauperis under Section 1915, Title 28 U.S.C. By his application, petitioner alleges that his confinement is in violation of rights secured by the Constitution of the United States. Specifically, he complains first that the conviction in state court was based upon a confession that was the product of a custodial interrogation not preceded by adequate Miranda² warnings; and second, that his alleged waiver of his right to counsel at the interrogation and his right to remain silent was ineffective in that by virtue of his mental subnormality he was incapable of making a knowing and understanding waiver. Because of the particular issues presented, a factual background is necessary.

THE FACTUAL BACKGROUND

It was 6:30 in the morning on March 27, 1967, when the police dispatcher in La Porte, Texas, first learned that the body of a black female was pinned under a 1959 Ford automobile in a vacant lot at the corner of Adams and North Fourth streets; the woman was believed to be dead; and the whereabouts of the driver was unknown. The chief of police, H. F. Freeman, Jr., finished a cup of coffee and went to the scene to investigate. Shortly thereafter, a young black resident of La Porte, Alton Lavallis, walked into the police station and sat down on a bench near the dispatcher, apparently unnoticed. Another broadcast regarding the investigation at the scene came over the dispatcher's radio. Lavallis, hearing the broadcast, said to the dispatcher, "I done that out on North Fourth." Lavallis was immediately placed in a cell.

Chief Freeman returned to the police station about 8:00 a. m. in the morning after taking pictures of the scene. He was told what Lavallis had said and that he was in custody in one of the cells. As Freeman approached, Lavallis said, "I run over Dorothy." Freeman instructed Officer Thomas to take Lavallis to Judge V. L. "Bud" West's office to receive his "statutory warning."

Shortly after 8:00 Lavallis was presented to Judge West (Judge West's office is two blocks from the police station). West told Lavallis that he was suspected of murder (by this time it had been learned that the woman was Dorothy Kennedy and that she was dead), that he had the right to remain silent, that "anything he said could be used against him in any trial pertaining to the case," that he was entitled to an attorney, that if he could not afford an attorney one would be appointed to represent him, that he was entitled to have an attorney "present at the time," that he could stop talking anytime he wanted to, and then personally advised Lavallis to get an attorney before he said anything. The warning lasted "not more than ten minutes." During the warning Lavallis said nothing but indicated his answers to the judge's questions by nodding. The judge was familiar with Lavallis' mental subnormality and talked to him on an informal basis. The judge was personally satisfied that Lavallis understood the warnings.

He was then taken back to an office in the La Porte station by Officer Thomas. There Chief Freeman told him that he wanted a statement. Lavallis indicated that he would give one.

He sat down across the desk from Chief Freeman in the small office. Officer Thomas was also in the office and another officer, Lafitte, stood in the only doorway to the office. The interrogation began with Freeman reading the Texas statutory warnings then in effect from the top of the confession form. He read the warnings slowly and asked Lavallis three or four times whether he understood them. He was personally satisfied that the warnings were understood. Lavallis was not told at that time that he was entitled to have an attorney present during the interrogation nor was he told that he could terminate the interrogation at any time. For about an hour Lavallis would relate his story and Chief Freeman would type what he said.

When Lavallis finished with his statement, a secretary was called into the small office. She read the typed statement to him stopping at different intervals and asking him if he understood what she had read. When she finished, Lavallis indicated he understood what she had read and signed the statement. The signing was witnessed by the three officers and the secretary.

The Harris County Grand Jury returned an indictment for the crime of murder with malice April 14, 1967. On September 8, 1967, an attorney was appointed to represent Lavallis at trial. The trial began on January 8, 1968, at which time Lavallis pleaded not guilty and filed a motion to suppress the confession on the ground that his in-custody, extra-judicial confession was not voluntary and was not admissible in evidence because the statement was not preceded by adequate Miranda warnings.

The trial judge, Honorable Wendell A. Odom (now on the Court of Criminal Appeals) denied the motion after conducting a Jackson v. Denno³ hearing, concluding that the warnings which were given complied with the dictates of Miranda and that Lavallis had voluntarily waived his sixth amendment right to counsel and his fifth amendment right not to incriminate himself.

THE MIRANDA WARNINGS

It is undisputed that the interrogation of petitioner was custodial and that the confession was made on March 27, 1967, subsequent to the date of Miranda which was decided June 13, 1966. Thus the requirements of Miranda are fully applicable to the issue of the confession's admissibility at petitioner's trial in January of 1968. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

The requirement of Miranda which is critical in this case is that "an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation." 384 U.S. at 471, 86 S.Ct. at 1626. Based on the language of Miranda itself that such a warning is an "absolute prerequisite to interrogation,"⁴ this circuit has demanded a strict compliance with this required warning, Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972), Lathers v. United States, 396 F.2d 524 (5th Cir. 1968), Chambers v. United States, 391 F.2d 455 (5th Cir. 1968), Windsor v. United States, 389 F.2d 530 (5th Cir. 1968), and has rejected the less stringent rule of the Second Circuit that the requirements of Miranda are satisfied under circumstances in which, although there is no evidence that the accused was told of his right to the presence of an attorney, an inference can be drawn to that effect. See, e. g., United States v. Cusumano, 429 F.2d 378 (2nd Cir.), cert. denied, 400 U.S. 830, 91 S.Ct. 61, 27 L.Ed.2d 61 (1970); United States v. Lamia, 429 F.2d 373 (2nd Cir.), cert. denied, 400 U.S. 907, 91 S.Ct. 150, 27 L. Ed.2d 146 (1970).

The test in this circuit is well stated in Lathers v. United States, supra, 396 F.2d at 535:

"The Miranda warning must effectively convey to the accused that he is entitled to a government-furnished counsel here and now. If the words are subject to the construction that such counsel will be available only in the future, Miranda has not been obeyed. Although there is no talismanic or heraldic abracadabra which must be fulfilled, the offer of counsel must be clarion and firm, not one of mere impressionism."

The application of the rule is simple. If an accused was "advised of his right to speak to or consult with an attorney, but was not advised that he was entitled to the presence of an attorney, retained or appointed, during the interrogations," the Miranda criteria for admissibility is not met. Windsor v. United States, 389 F.2d 530 (5th Cir. 1968); Chambers v. United States, supra 391 F.2d at 456. If this critical part of the warning is not given, it matters not that the rest of the warning was given "over and over again" or that there is no indication of an "affirmative misleading" by the police officer. Cf. Sanchez v. Beto, supra 467 F.2d at 514, 516; see also, Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).

In this case, petitioner was "warned" of his constitutional rights twice: once by a magistrate and again by the officer who took the confession. From the testimony adduced at the habeas corpus hearing and from the testimony at trial, it is clear that the warning given by the officer taking the confession was inadequate.

Chief Freeman testified that he read the warnings that were printed on the top of the confession form which were the statutory warnings required by Article 15.17 of the Texas Code of Criminal Procedure then in effect. Article 15.17, V.A.C.C.P., had been enacted in response to Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and did not contain the requirement that the individual subjected to interrogation must be warned that he has the right to the presence of an attorney, retained or appointed at the interrogation.⁵ And even though Article 15.17 was amended on August 28, 1967, so as to add this critical requirement, since it was not in effect on the date that the confession was taken, Chief Freeman did not tell petitioner that he was entitled to the presence of an attorney at the interrogation. This much is clear from the record. What is not so clear is...