Rushing v. Wilkinson

• Decision Date: 25 November 1959
• Docket Number: No. 17727.,17727.
• Citation: 272 F.2d 633
• Parties: Leon B. RUSHING, Appellant, v. Frederick T. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

272 F.2d 633 (1959)

Leon B. RUSHING, Appellant, v. Frederick T. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.

No. 17727.

United States Court of Appeals Fifth Circuit.

November 25, 1959.

Frank J. Mizell, Jr., Montgomery, Ala., John Fletcher Jones, Andalusia, Ala., for appellant.

Charles D. Read, Jr., Acting U. S. Atty., Atlanta, Ga., Lieutenant Colonel Thomas M. Wells, Jr., First Lieutenant Paul A. Foley, Fort McPherson, Ga., for appellee.

Before RIVES, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

Leon B. Rushing, formerly a private in the United States Army but now an inmate of the United States penitentiary in Atlanta, filed a petition for habeas corpus challenging the validity of his conviction by a court-martial in Korea in 1951. Rushing contends that: (1) he was denied effective assistance of counsel in the preparation and trial of his case, in violation of the Sixth Amendment and, interrelated with this denial of adequate counsel, he was not afforded an opportunity to prepare his defense properly, contrary to due process; (2) the instructions of the law member of the court failed to satisfy the requirements of due process; (3) the court-martial verdict was inconsistent and invalid in that he was found guilty of the joint offense of murder, although the court found that Floyd Stewart, jointly-accused, was not guilty; and, (4) his confession was coerced, in violation of his rights under the Fifth Amendment.

The hearing in the district court on the rule to show cause developed into a head-on collision of testimony between the two persons most interested in the outcome of the proceedings: Rushing, of course, and Rushing's appointed counsel in Korea, Lieutenant Colonel Henry E. White (Retired). The district court chose to believe Colonel White and denied the application for habeas corpus. We affirm.

On March 30, 1951, Rushing and another soldier, Floyd Stewart, were on a work detail near the village of Oh Ryu Dong on the Seoul-Inchon Road, Korea. It was cleaning day in the village. Oh Hyon Bun, a Korean girl living with her father in Oh Ryu Dong, was carrying garbage to her garden gate when she looked up and saw Stewart entering the garden. She fled to the back of the house. Rushing was climbing through a hole in the back fence. She ran to the front of the house. There, her father, Oh Yun Dong, was confronting Stewart. Rushing swung at the father with his M-1 rifle, just missing him. Stewart kicked Oh Yun Dong from behind. Rushing swung again with the butt of his rifle. Oh Yun Dong then beat a retreat in search of a policeman. After the father was driven away, Stewart began struggling with the girl, struck her in the face, grasped her by the throat, and attempted to remove her clothing. During Stewart's assault on the girl Rushing was standing nearby armed with his rifle, apparently as a look-out or to prevent the father returning. The father found a Korean policeman, Cho Cuck Whan, who approached the house. He fired one or two shots in the air. Hearing these shots, Rushing went to the back of the house. The girl heard two more shots. After a few moments, Rushing and Stewart left the scene. Oh Yun Dong had been hiding for about ten minutes. After hearing the shots he returned home. On looking in the outhouse, he found Cho Cuck Whan bleeding to death. Medical reports showed that Cho Cuck Whan died as a result of excessive bleeding from gunshot wounds in the chest and left arm. Those are the facts, according to the prosecution.

A few hours later CID agents picked up Rushing and Stewart for investigation. Both made written statements that evening at the Inchon police station confessing to most of the allegations constituting the basis for the charges. In his statement Rushing said that he saw a rifle muzzle pointed at him, whereupon he jumped back, then, the gun which he was holding at his hip went off; he "didn't do it on purpose".¹

On May 12, 1951 Rushing and Stewart were charged jointly with premeditated murder, in violation of Article of War 92 (formerly 10 U.S.C.A. § 1564).^* They were also charged with aggravated assault upon Oh Yun Dong with a dangerous weapon and assault upon Oh Hyon Bun with intent to commit rape, both offenses in violation of Article of War 93 (formerly 10 U.S.C.A. § 1565).^** Each pleaded not guilty. They were tried by court-martial May 22, 1951. Each took the stand for the limited purpose of testifying as to the involuntary nature of the confession. Rushing was found guilty of premeditated murder; Stewart was found not guilty. Each was found guilty of the other two joint offenses, except that the element of battery was eliminated in the finding as to aggravated assault. The court-martial sentenced Rushing to dishonorable discharge, total forfeiture of pay and allowances, and life imprisonment at hard labor. Stewart was sentenced to dishonorable discharge, total forfeiture of pay and allowances, and twenty years at hard labor.

In an exhaustive review of the case the Staff Judge Advocate affirmed the conviction. He recommended, however, that Rushing's term of confinement be reduced from life to twenty years and that Stewart's sentence be reduced from twenty years to ten years. As to the murder charge, he disapproved of that portion of the findings containing Stewart's name and any words indicating that the offense was a joint one. The convening authority accepted these recommendations.

The Board of Review in the office of the Judge Advocate General of the Army reviewed the record and wrote a carefully documented opinion. United States v. Rushing, 1 CMR 328 (1951). The Board approved the finding that Rushing was guilty of murder, but held that the evidence was legally insufficient to support the finding that the killing was premeditated. The Board approved as correct in law and fact the findings of assault with intent to do bodily harm and assault with intent to rape.

The United States Court of Military Appeals denied a petition for review. United States v. Rushing and Stewart, 4 CMR 173, 1 USCMA 716 (1952). Rushing did not request a new trial. 50 U.S.C.A. § 740.

I.

The appellant argues that he was denied effective assistance of counsel in violation of the Sixth Amendment, and, interrelated with this denial of adequate counsel, he was not afforded an opportunity to prepare the defense of his case, contrary to due process. He alleges that he was forced to have as his counsel the same person appointed as counsel for his co-defendant, irrespective of the conflicting interests of co-defendants accused of joint offenses. He alleges also that he requested individual counsel to aid him, but this was refused; that the appointed counsel saw him only once before the day of the trial, and then for fifteen minutes, and next saw him only five minutes before the trial; that his counsel had promised to come and discuss the case, but he never did so; that, despite his request that counsel ask for a separate trial, counsel failed and refused to do so; that the record of the trial is replete with circumstances showing a lack of preparation and effective assistance of counsel. Rushing was eighteen years old at the time of the offense. He had a seventh grade education.

Rushing's counsel was Lieutenant Colonel, then Captain Henry K. White, an officer in the Judge Advocate General's Corps. Captain White was graduated in law from Wake Forrest, an accredited law school, was admitted to practice in North Carolina in 1932, and had engaged in the general practice of law in North Carolina for eight years. He testified that during his military career he had taken part in several thousand courts-martial and, at the time he defended Rushing, had represented defendants in ten or twelve murder cases in Korea.

The district judge took the position that he would entertain "all of the efforts offered by the petitioner in his efforts to show that Captain White was not a sufficiently skilled attorney to comply with the requirements of due process as to counsel", Suttles v. Davis, 10 Cir., 1954, 215 F.2d 760, certiorari denied, 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709, to contrary notwithstanding.² The district judge found that a study of the record of the court-martial shows that "Captain White did represent petitioner in an able manner"; that petitioner failed to prove his contentions relating to matters outside of the record.

Rushing testified that he requested other counsel than White, a Major Richard Batley of the 378th Engineer Combat Battalion. But Major Batley's commanding officer turned down the request because of the tactical combat situation at the time. Further, the request was for Major Batley to assist Captain White, not to serve as chief counsel. The record shows that upon inquiry in open court Rushing stated that he desired to be defended "by the regularly appointed defense counsel", and that, later on, he expressed satisfaction with Captain White as his counsel. The opinion of an eighteen-year-old soldier under the strain of a murder charge is scant evidence of an attorney's competency, but it does tend to refute Rushing's complaint that White disregarded various requests and suggestions made by the petitioner before and during the trial.

The conflict in testimony is irreconcilable. The petitioner testified that: (1) Captain White did not allow him to plead self-defense; (2) he was not permitted to testify because his testimony "would hurt Stewart"; (3) Captain White did not call various witnesses who would testify that his confession was coerced; (4) he did not challenge any members of the court-martial; (5) Captain White saw him for only fifteen minutes on May 12, and then saw him later, on the day of the trial for only five minutes; (6) a notice was read to Rushing's company in which the alleged offense was referred to as a "vicious attack".

White answered these accusations as follows:

(1) He stated that he did not urge...