Morgan v. Neal, Civ. A. No. 2448.

• Decision Date: 29 April 1970
• Docket Number: Civ. A. No. 2448.
• Citation: 325 F. Supp. 1196
• Parties: Floyd E. MORGAN and Clarence L. Morgan, Petitioners, v. W. S. NEAL, Warden, etc., Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

325 F. Supp. 1196

Floyd E. MORGAN and Clarence L. Morgan, Petitioners, v. W. S. NEAL, Warden, etc., Respondent.

Civ. A. No. 2448.

United States District Court, E. D. Tennessee, Northeastern Division.

February 13, 1970.

Memorandum Opinion April 29, 1970.

David F. Bautista, Elizabethton, Tenn., for petitioners.

Elmer F. Davies, Asst. Atty. Gen., Nashville, Tenn., for respondent.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is a further consideration of the application of the petitioners Floyd E. Morgan and Clarence L. Morgan for the federal writ of habeas corpus, in which, on multiple grounds, they claim they are in custody pursuant to the judgment of the Circuit Court of Cocke County, Tennessee in violation of their right under the federal Constitution to due process of state law. 28 U.S.C. § 2254(a). The question which will be considered specifically here has been presented to the courts of Tennessee and ruled upon, sub silento in some instances at least adversely to the applicants' contention. 28 U.S. C. §§ 2254(b), (c).

The only issue necessary to a decision on the current application is whether the applicants have established by convincing evidence that the factual determination by the state habeas corpus hearing judge, that the petitioners made a voluntary statement to a witness for the prosecution in the petitioners' criminal trial, admitting their guilt of the crime of robbery, under the record in such state court proceeding, considered as a whole, fairly supports such factual determinations. 28 U.S.C. § 2254(d) (8). The applicants challenge the sufficiency of the evidence in such proceeding to support such factual issue, and the state of Tennessee has now produced such parts of the record pertinent to such determination. 28 U.S.C. § 2254(e).

Inter alia, the written findings at volume II, page 30, of Honorable George R. Shepherd, the aforementioned state habeas corpus hearing judge, include therein the statement that the applicants

made a voluntary statement to Sheriff O'Dell which is shown in this record and admitted their guilt insofar as robbery is concerned * * *.

Although it is unclear to this Court from the opinions of the appellate courts of Tennessee on what specific findings of the hearing judge, the respective affirmance of his decision and the denial of certiorari are based, the opinion of April 25, 1969 of the Court of Criminal Appeals of Tennessee, Morgan v. State, 445 S.W.2d 477, does state

* * * The Supreme Court of this State affirmed the conviction of these petitioners in Morgan v. State 1967, 220 Tenn. 247, 415 S.W.2d 879. Reviewing the entire record of their trial, in which the petitioners neither testified nor introduced any evidence, emphasis supplied, the Court found and held that "The evidence further shows that both defendants admitted the crime in the presence of their lawyer in Georgia after they had been advised of their rights and had been allowed to consult with their lawyer." * * *

Thus, it appears that the findings of the hearing judge in this aspect were approved by the intermediate appellate court of Tennessee, and relief was not accorded the petitioners on their application to the highest Tennessee court by review on certiorari.

The applicants claim that the aforementioned testimony of the aforenamed prosecution witness was perjured, and there appears to be evidence in the record which might render that contention viable. Certainly, except for such testimony of that witness, there is no evidence anywhere in the record to support a finding that either applicant ever admitted his guilt of the crimes of robbery charged.

On the aforementioned hearing, the applicant Mr. Clarence L. (Leon) Morgan, inter alia, testified:

"Q. `Did you ever by implication or by express admission confess to this crime?'

"A. `No, sir. I did not before a judge. As a matter-of-fact I said I would not confess to it in front of the Judge down there.'" —R., vol. II, p. 12,

* * * * * *

"Q. `You did confess in the state of Georgia that you did commit this robbery in Cocke County, didn't you?'

"A. No, sir.'" —R., vol. II, p. 15;

and his coapplicant Mr. Floyd E. Morgan, inter alia, testified:

"Q. `Mr. Morgan, I will ask you if during the consultation with him and during the questioning and interrogation by the officers, if you ever by implication or by express admission confessed to this crime here in Cocke County?'

"A. `No, not to my knowledge; I haven't.'" —R., vol. II, p. 18,

* * * * * *

"Q. `* * * You and your brother both confessed to this crime down there on the advice of your counsel in Georgia, didn't you?'

"A. `* * * No.'" —R., vol. II, p. 24.

This testimony is undisputed in this record. This Court has searched it diligently and can find no countervailing evidence of any kind. To the contrary, however, the Court does find an affidavit, the effect of which is diametrically opposed to the testimony of the prosecution's witness Mr. O'Dell that the applicants confessed to him. Therein, Charles M. Evert, Esq., T.C.A. § 40-3817, the attorney who represented the applicants in Georgia before their return to Tennessee to stand trial, stated under oath:

* * * While Floyd Morgan and Leon Morgan were confined in the County Jail of Muscogee County Georgia, on a fugitive from arrest warrant from the State of Tennessee, Deponent was requested to counsel with Floyd Morgan and Leon Morgan at the County Jail. Floyd Morgan and Leon Morgan denied any guilt in the accusation on which the fugitive from arrest warrant was founded.

3.

Floyd Morgan and Leon Morgan denied any guilt on the part of Ruby Morgan or Betty Morgan on the accusation on which the fugitive from arrest warrants were issued against them.

4.

A conference was held with a deputy sheriff from the State of Tennessee who had come to Columbus, Georgia, to return Betty Morgan, Ruby Morgan, Floyd Morgan and Leon Morgan on said fugitive from arrest warrants. The deputy sheriff stated that he would dismiss the fugitive from arrest warrants against Betty Morgan and Ruby Morgan if Floyd Morgan and Leon Morgan would admit their guilt in the accusation. The admission of guilt was absolutely refused by Floyd Morgan and Leon Morgan; and they vehemently insisted on their innocence.

5.

Floyd Morgan and Leon Morgan were greatly concerned that the false accusation would cause Ruby Morgan and Betty Morgan to be away from their children and they asked if there was any way the deputy sheriff would consider dismissing their fugitive from arrest warrants. The deputy sheriff was advised, then, that none of the parties would waive extradition.

6.

The failure to waive extradition resulted in the necessity of the deputy sheriff sic: sheriff's returning to Tennessee without the alleged fugitives. At late hour of the afternoon, just prior to the closing of the Courts, the deputy sheriff stated that he would dismiss the fugitive arrest warrants against Betty and Ruby if Floyd and Leon stated that Ruby and Betty had nothing to do with the actions alleged in the accusation.

7.

Floyd and Leon were advised that such a statement to the deputy sheriff would not be an admission of anyone's guilt if they made such a statement to the deputy sheriff. Thereupon, a statement was made, in my presence, to the deputy sheriff, that Ruby and Betty had nothing to do with the actions alleged in the accusation.

At no time did Floyd Morgan or Leon Morgan admit to me or anyone that they were guilty of any of the actions for which the fugitive from arrest warrants were issued.

* * * Ex. 6

It is conceded for purposes of this consideration that it was for the state hearing judge to weigh the testimony of each witness and to assess each's credibility. But, insofar as the record of the habeas corpus proceedings before him is concerned, Sheriff O'Dell does not appear to have testified as to any voluntary statement made to him by the petitioners, there appears to be nothing akin to that shown in such record, and the testimony of both of the petitioners, denying ever having admitted their guilt, respectively, of the robbery involved, appears to this Court to be uncontradicted. Where, then, is any evidence to support such a finding of fact by the state hearing judge?

This Court is disturbed by the inclusion in the opinion of the Court of Criminal Appeals of Tennessee of a reference to the fact that neither defendant testified nor offered any evidence on their criminal trial. Neither was required to do either, and such an observation would appear to have no place in an appellate judicial utterance. This Court is more disturbed by the fact, however, that about all that appellate court found occasion to comment upon in affirming the decision of the state hearing judge was the fact that the Tennessee Supreme Court, 220 Tenn. 247, 415 S.W.2d 879, in affirming the conviction of the petitioners in their criminal trial, had stated that the evidence had shown that both petitioners had admitted their guilt of the crime in the presence of their lawyer with full knowledge of their rights and the assistance of counsel.

At the time Mr. Justice Chattin prepared his opinion, including the statement relied on so heavily (apparently) by the intermediate appeals court, he did not have the benefit, of course, of the affidavit of Georgia counsel for the petitioners. One wonders, in that event, if Mr. Justice Chattin would have found that

the sheriff appears to have testified that the petitioners told him in the presence of their attorney in Georgia, where they were apprehended as fugitives from justice in Tennessee, that they had come to the county of venue in Tennessee "* * * and got the money. * * *",

Morgan v. State, supra, 220 Tenn. at 250, 415 S.W.2d 879, in affirming their convictions. In any event, the cruciality of this testimony by Sheriff O'Dell on the criminal trial of the petitioners is patent. And, insofar as the record in the state habeas corpus hearing is concerned, there is nothing...