Moore v. Dutton
| Decision Date | 16 December 1968 |
| Docket Number | Civ. A. No. 2261. |
| Citation | 294 F. Supp. 684 |
| Parties | Robert Felton MOORE, Petitioner, v. A. L. DUTTON, Warden, Georgia State Prison, (Succeeded by S. Lamont Smith), Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
Murray M. Silver, Atlanta, Ga., for plaintiff.
William R. Childers, Jr., Atlanta, Ga., for defendant.
(2) that the grand and petit juries which indicted and tried him were drawn from lists taken from tax digests and as such were discriminatory in that petitioner is an indigent Negro and such technique discriminated against the impartial selection of Negro jurors.
After a hearing on these issues the City Court judge on April 14, 1967, denied the petition. Thereupon petitioner appealed to the Georgia Supreme Court which upheld Judge Carr's denial. See Moore v. Dutton, Warden, 223 Ga. 585, 157 S.E.2d 267.
Petitioner filed his application in this Court on December 1, 1967. On the same day Judge Frank M. Scarlett denied the petition stating that "* * * under all of these facts this Court decides that this petitioner has had his day in Court * * *" Petitioner then appealed to the Fifth Circuit Court of Appeals which reversed Judge Scarlett and remanded the case for consideration on its merits. See Moore v. A. L. Dutton, 396 F.2d 782.
The respondent, State of Georgia, which was not required initially to make a return and answer, filed a brief in the Fifth Circuit and has subsequently submitted the transcripts of the State trial and the State habeas corpus proceeding which are to be considered by this Court in compliance with the Fifth Circuit ruling.
A Federal District Court, in a habeas corpus proceeding, may accept evidence and findings of the State court in trial or post conviction proceedings if arrived at by a full and fair hearing and if supported by substantial evidence. See Nance v. Baker, 10 Cir., 400 F.2d 864; Wilson v. Bailey, 4 Cir., 375 F.2d 663; Hall v. Page, 10 Cir., 367 F.2d 352. Since it appears that the state trial and the post-conviction proceeding were conducted with complete impartiality and fairness to the petitioner, both records are accepted as admissible evidentiary matter in the present proceeding. They have been carefully examined in the light of petitioner's allegations.*
Petitioner's first contention with regard to the alleged involuntary confession and the denial of right to counsel was considered at great length during the state trial at the time the motion to suppress evidence was argued before the Court in the jury's absence. It was also considered at the state habeas corpus hearing at Reidsville. From both records it appears that petitioner's confession was entirely voluntary and was given freely and without fear of bodily harm. It further appears that petitioner was fully informed of his rights to remain silent and to have counsel appointed at the time the confession was given, and that petitioner waived his rights.
The evidence supporting this conclusion is as follows:
At the trial and in the absence of the jury, H. L. Lunsford, Georgia Bureau of Investigation Agent, to whom the confession was made, testified that prior to initial interrogation which took place in the Camden County Sheriff's Office, Sheriff Smith informed the petitioner of all of his constitutional rights and that petitioner understood the consequences of his confession which appeared to be entirely voluntary. Lunsford testified that petitioner was composed, that he smoked a cigarette and drank a soft drink prior to the confession, and that he never complained of or even mentioned the beating supposedly administered by the arresting officers. Lunsford also testified that he personally informed petitioner again of his constitutional rights just prior to a second interrogation period in which the confession was repeated and elaborated on.
The arresting officers denied that petitioner was struck and further testified that they, too, had informed him of his constitutional rights to remain silent and to have counsel appointed. The only evidence offered to show that petitioner received a beating was conflicting testimony to the effect that one of petitioner's eyes was red several days after the arrest. It also appeared that petitioner never complained of any rough treatment until the time of his trial. The hearing on this issue lasted for an hour and a half, and petitioner's counsel subjected each of the witnesses to thorough cross examination.
This finding is corroborated by additional testimony offered at the state habeas corpus hearing where Jack W. Ballenger, Solicitor General of the Brunswick Judicial Circuit at the time of petitioner's trial, testified to the effect that he was present prior to the time petitioner made the confession to Mr. Lunsford of the G.B.I. and that he personally informed petitioner of his rights to an attorney and in respect to remaining silent.
Petitioner's allegation as to discriminatorily impanelled juries was not raised at the trial but was brought up for the first time before the City Court of Reidsville at his habeas corpus hearing. Petitioner was represented by counsel who offered nothing in the way of evidence to show that either the grand or petit juries was in fact improperly drawn. Counsel for petitioner did nothing more in this respect than to ask Mr. Ballenger, the Solicitor General, as to the generally accepted jury selection practice in Camden County at the time of petitioner's trial. It was shown only that the tax digests were utilized. No evidence was offered to show that such digests were an improper source or that they did not in fact adequately represent a cross section of the community.
Questions of improperly admitted evidence, including involuntary confessions, are generally raised only on direct appeal and are not properly presented in habeas corpus proceedings. Mize v. Crouse, 10 Cir., 399 F.2d 593. In situations such as the present case where the challenged evidence is virtually conclusive of defendant's guilt, an improper admission would offend due process; thus an exception is made and untimely consideration of the issue is permitted. Stump v. Bennett, 8 Cir., 398 F.2d 111.
Admissibility of confessions is a point so often litigated that there is little question as to applicable standards. It is clear that the trial court in admitting a confession must hold an independent hearing to determine whether the confessing defendant made the statement with an understanding of the consequences and whether it was voluntarily made under no threat of harm or promise of special treatment. Jackson v. Deno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593; Whippler v. Dutton, 5 Cir., 391 F.2d 425. It must also be determined whether the defendant was informed of his right to counsel or was otherwise aware of this right and whether he knowingly waived this right. Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977; Zamora v. United States, 10 Cir., 369 F.2d 855; Matthews v. United States, 5 Cir., 367 F.2d 156; Evalt v. United States, 9 Cir., 359 F.2d 534.
I find that petitioner's confession was entirely voluntary and that he was well informed of his right to counsel and knowingly waived this right. This determination was timely made by the trial court and the confession was properly admitted.
Petitioner's allegations as to the unconstitutional make-up of the grand and petit juries empaneled to try his case is attacked by respondent on two grounds: (1) that petitioner did not object to the jury panels until after the trial and, therefore, waived his right to object at a later date; and (2) that under the Supreme Court's ruling in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, a tax digest is a per se proper source from which to select a jury where the digest is used non-discriminatorily.
In support of the "waiver" argument respondent cites Georgia cases directly in point and representing the accepted viewpoint of the Georgia courts. (See Moore v. Dutton, Warden, 223 Ga. 585, 157 S.E.2d 267; Sims v. Balkam, 220 Ga. 7, 9, 136 S.E.2d 766; Clarke v. Grimes, 223 Ga. 461, 156 S.E.2d 91). Each holds without qualification that the jury issue is waived when not presented prior to trial. This oversimplification of the issue by the ...
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Williams v. Smith, 30336 Summary Calendar.
...a second evidentiary hearing in this Court is not required. 28 U.S.C. § 2254; Shinall v. Breazeale, 5th Cir., 404 F.2d 785; Moore v. Dutton, D.C., 294 F.Supp. 684. A plea of guilty knowingly and intelligently made is a waiver of all non-jurisdictional defects. Moore v. United States (5th Ci......