Marion v. Beto

• Citation: 302 F. Supp. 913
• Decision Date: 30 July 1969
• Docket Number: Civ. A. No. 5-534.
• Parties: James Lee MARION, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Texas

302 F. Supp. 913

James Lee MARION, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 5-534.

United States District Court N. D. Texas, Lubbock Division.

July 30, 1969.

Richard J. Clarkson and Warren Burnett, Odessa, Tex., for petitioner.

Allo B. Crow, Jr., Asst. Atty. Gen. of Texas, Austin, Tex., and James A. Mashburn, Dist. Atty., Midland, Tex., for respondent.

WOODWARD, District Judge.

MEMORANDUM OPINION

This memorandum opinion shall constitute the necessary Findings of Fact and Conclusions of Law to support the order of the Court denying Petitioner's Petition for a Writ of Habeas Corpus.

On a plea of not guilty, a Jury in the 72nd District Court of Lubbock County, Texas, convicted Petitioner of the felony offense of murder with malice aforethought of Mrs. Fred Turner and assessed the punishment at death. The verdict was dated March 21, 1964, and the Court of Criminal Appeals of Texas affirmed the judgment and sentence on December 2, 1964, and by a later amended opinion of February 2, 1965, 387 S. W.2d 56.

In Civil Action No. 5218, of The United States District Court for the Northern District of Texas, Lubbock Division, Marion v. Harrist, Petitioner filed his Petition for a Writ of Habeas Corpus, which was denied May 5, 1965. The Court of Appeals for the Fifth Circuit affirmed, Marion v. Harrist, 363 F.2d 139, and certiorari was denied by the United States Supreme Court, 386 U.S. 934, 87 S.Ct. 960, 17 L.Ed.2d 807. Some of the grounds alleged in the petition now before this Court were raised and decided in the 1965 habeas corpus proceedings.

The present petition was first filed in the 72nd District Court of Lubbock County, Texas, and a hearing, with the Petitioner present, was held December 19, 1968. The State trial Court, after the hearing, filed its Findings of Fact and the Texas Court of Criminal Appeals denied the petition for habeas corpus without a written opinion. There was a full, complete and fair evidentiary hearing held in the State District Court on this petition.

Petitioner has exhausted his State remedies under Art. 11.07 of the Vernon's Ann.Texas Code of Criminal Procedure and has now filed his petition for such a writ in this Court setting forth twelve claims as a basis for granting same. These claims are discussed and reviewed below.

I.

(Petitioner's First, Fourth and Fifth Claims)

These claims allege grounds for relief which relate to the trial Court procedures used to determine the voluntariness of Petitioner's confessions admitted into evidence at his trial: (1) that the trial Court failed to make an independent determination of the voluntariness of defendant's two written confessions and certain oral inculpatory statements made to psychiatrists, all of which were made while Petitioner was in police custody without counsel; and (2) that the trial Court failed to charge the jury to consider the voluntariness of the confessions.

The record before this Court indicates that the trial Court held a preliminary hearing concerning the admissibility of Petitioner's written and oral confessions. (Cause No. 9290, Tr. p. 30) However, the voluntariness of these confessions was apparently not ruled on by the Court at that time and there is no indication that the voluntariness of same was challenged by Petitioner. The main thrust of Petitioner's arguments against the validity of the confessions, raised in its motion to suppress at the trial were directed at his mental capacity and lack of counsel at the time he made them. In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Supreme Court held that a defendant had a constitutional right to a fair hearing and reasonable determination on the question of voluntariness, separate and apart from the truth or falsity of the confession (378 U.S. 376-377, 84 S.Ct. 1774). The rationale of this decision is that a procedure for determining the voluntariness of a confession may come into conflict with the constitutional principle that an accused is deprived of due process of law if his conviction is founded in whole or part upon an involuntary confession, even though true, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) and even though there is ample evidence without the confession to support the conviction, Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L.Ed.2d 975 (1958). Before the confession is submitted to the jury, the record of the case must indicate "with unmistakable clarity" that the trial judge made "a reliable and clearcut determination of voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend" 378 U.S. at 391, 84 S.Ct. at 1788 and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed. 2d 593 (1967). (Emphasis added.) Unlike Jackson v. Denno we do not find in this case any clash or dispute as to facts in the record that would place the issue of voluntariness in question. Further the record does not show that the trial Court was requested to make its own independent finding on the question of voluntariness.

In Evans v. United States, 377 F.2d 535 (5th Cir., 1967) the Court agreed that voluntariness must be put in issue to require an independent hearing on that subject when it said:

"Appellant also contends that the trial court erred in not holding a hearing to determine whether her `confession' to the agents was voluntary. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Suffice it to say that voluntariness was never put in issue. Not only was there no objection but there was no way the trial court could have been aware that the voluntariness of her oral statements to the agents was questioned. See 378 U.S. at 374, 84 S.Ct. at 1774. There must be a limit to the clairvoyance we require the trial courts to possess."

Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967), followed by Delaney v. Gladden, 397 F.2d 17 (9th Cir., 1968) require a challenged confession or that the Court must be made aware of a question of voluntariness in order to present a Jackson v. Denno argument in a federal habeas corpus hearing.

Petitioner relies on Smith v. Texas, 395 F.2d 958 (5th Cir., 1968), a case similar to the one presently before the Court. In Smith the defendant was charged with a heinous crime, and the question as to the voluntariness of defendant's confession was raised by both the evidence admitted and the defense attorney's objection (Marion's attorney did not object on the ground of voluntariness to the confession nor does the evidence indicate disputed facts upon which voluntariness may depend). In Smith, the Court overruled the objection without any comment but the evidence as to voluntariness was heard by the jury and the issue was submitted to them in the charge. The Court of Appeals for the Fifth Circuit noted that Smith's confession had already been upheld as voluntary by the Texas Court of Criminal Appeals and Federal District and Circuit Courts, however, since the trial Court did not make an independent determination of voluntariness as required by Jackson v. Denno the case was remanded to the State Court for an evidentiary hearing for the Court's determination as to voluntariness as provided for in Article 11.07 of the Texas Code of Criminal Procedure as interpreted by Ex Parte Young, 418 S.W.2d 824 (Tex. Cr.App.1967). The procedure followed in Smith, a remand for an evidentiary hearing rather than reversal and remand for new trial, is in accord with the disposition of the case by the Supreme Court in Jackson v. Denno. "We cannot say that the Constitution requires a new trial if in a soundly conducted collateral proceeding, the confession which was admitted at the trial is fairly determined to be voluntary." 378 U.S. at 395-396, 84 S.Ct. at 1791. Accord; Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L. Ed.2d 109 (1964), Williams v. Beto, 386 F.2d 16 (5th Cir., 1967).

Petitioner, here, is in no position to complain, for unlike the Smith case, the trial Court has been given an opportunity to hear this claim in the evidentiary hearing held December 19, 1968, pursuant to Article 11.07 of Texas Code of Criminal Procedure. At that time, Petitioner and his counsel were present, the record of all past proceedings were introduced into evidence and Petitioner could have taken the stand and subpoenaed witnesses to testify in his behalf. After reviewing the record and arguments of counsel the trial Court made a reliable and clear-cut determination in its Findings of Fact and Conclusions of Law that Petitioner's two written confessions were in fact, voluntary. This procedure complies with the standards set forth in Jackson v. Denno and Smith. For this Court to again apply the procedure followed in Smith and to order a determination by the trial Court as to voluntariness of the confessions would be repetitious and unnecessary.

Next petitioner contends that it was error for the trial Court not to include instructions regarding voluntariness of the confessions in the charge to the jury. The record shows no request from Petitioner's attorneys that the trial Court instruct on voluntariness as such, but their requests in this regard emphasized Petitioner's mental capacity at the time he made the confessions. The trial Court gave an instruction on that issue, instructing the jury not to consider either confession if Petitioner was insane when they were made, referring to its earlier instructions and definitions of insanity. (Cause No. 9290, Tr. p. 44).

The Supreme Court in Jackson v. Denno was concerned only that the question of voluntariness not be confused with the question of guilt. Essentially, all that is constitutionally required is that the trial Court make an independent determination of voluntariness before submitting the confession to the jury for consideration. There appears to be no constitutional requirement in Jackson v. Denno for a...