Simpson v. Wainwright

• Decision Date: 06 April 1971
• Docket Number: No. 29109.,29109.
• Parties: Clarence SIMPSON, Jr., Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 948 (1971)

Clarence SIMPSON, Jr., Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.

No. 29109.

United States Court of Appeals, Fifth Circuit.

March 12, 1971.

Rehearing Denied April 6, 1971.

Clarence Simpson, Jr., pro se., Stanley Jay Bartel, Miami, Fla., for petitioner-appellant.

Earl Faircloth, Atty. Gen. of Florida, Tallahassee, Fla., Jesse J. McCrary, Jr., Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

Before GEWIN, COLEMAN, and AINSWORTH, Circuit Judges.

COLEMAN, Circuit Judge.

In 1962, Clarence Simpson was convicted by a jury in the Circuit Court of Dade County, Florida, of the crime of first degree murder. It was not until 1968 that the Supreme Court decided Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. On habeas corpus to the United States District Court for the Southern District of Florida, Simpson alleged that he was entitled to Bruton relief. The District Court held that the Bruton infractions revealed by the state trial transcript were harmless beyond a reasonable doubt. Because Simpson was identified on the witness stand by an eye witness to the homicide, because Simpson later identified the weapon as the one he used in the commission of the murder, and because he made a full and complete confession to the murder to at least two police officers, we affirm the District Court.

On March 6, 1962, the grand jury in and for Dade County, Florida, indicted Clarence Simpson jointly with Aubrey Henry, Joseph Millings, Jr., and Eugenia Thomas for the murder, on October 28, 1961, of one Beatrice Dunaway by shooting her with a pistol in the perpetration of robbery or in the attempt to perpetrate robbery.

On March 28, 1962, all defendants, represented by counsel, were arraigned and stood mute. They were jointly tried in the Dade Circuit Court. Millings and Thomas were acquitted on directed verdicts. Simpson and Henry were convicted with recommendations of mercy, resulting in life sentences.

Simpson did not appeal. On a writ of habeas corpus he was later allowed an appeal out of time; see Wainwright v. Simpson, 5 Cir., 1966, 360 F.2d 307. The Florida District Court of Appeal affirmed the original judgment of conviction, Simpson v. State, 211 So.2d 862 (1968). The Supreme Court of Florida dismissed Simpson's appeal without opinion, 225 So.2d 908 (1969).

Simpson filed a new petition for habeas corpus in the United States District Court. October 16, 1969, as already stated, that Court denied relief and the case is again here on appeal.

Simpson asserted only two grounds for relief: (1) that an unsigned confession by Simpson was admitted into evidence in violation of his Fifth Amendment rights against self incrimination, and (2) that statements of Simpson's co-defendants were admitted into evidence in violation of the principles enunciated by Bruton v. United States, supra.

The contentions as to the admission of the confession are clearly without merit and will be dismissed without further discussion.

We proceed to a consideration of the Bruton contentions. Bruton was decided May 20, 1968. Simpson had been tried in 1962, but Bruton is to be given retroactive effect as to both state and federal prosecutions, Roberts v. Russell, 1968, 392 U.S. 293, 88 S.Ct. 1921, 20 L. Ed.2d 1100. In denying habeas corpus relief, the District Court held that although the statements of the co-defendants were violative of Bruton principles the case against Simpson was so overwhelming as to justify the harmless error rule of Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L. Ed.2d 284 and Posey v. United States, 5 Cir., 1969, 416 F.2d 545, Snowden v. United States, cert. denied 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127. The Court was further of the opinion that the case presented a situation much like that in United States v. Venere, 5 Cir., 1969, 416 F.2d 144.

Bruton v. United States, supra, was a federal prosecution for armed postal robbery. When the case came to the Supreme Court the Solicitor General submitted a memorandum stating that "in the light of the record in this particular case and in the interests of justice, the judgment below should be reversed and the cause remanded for a new trial".

The confession of Bruton's co-defendant, used against Bruton, was held on appeal to have been wrongly admitted and his conviction was reversed. Upon a new trial he was acquitted. The Supreme Court held that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extra-judicial statement in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment".

We have before us the transcript of Simpson's jury trial in 1962.

The State made out a case of first degree murder by the eye witness testimony of one Catherine Wilson. She swore that Simpson and another man, both armed, forcibly entered a certain house, after which Simpson struck another individual present and told him, "this is a stickup". That individual was required to hand over his money and to lie on the floor. Beatrice Dunaway then came to the house. Simpson let Dunaway in the door and struck her, whereupon she returned the blow, and Simpson shot her dead.

Another witness testified that on the morning of the robbery he had sold Simpson a loaded pistol for $2.00 (a cheap weapon, but a deadly one). Later, this weapon was exhibited to Simpson in jail and he voluntarily identified it as the one he used on the occasion in question.

A civilian, Robert Hall, (p. 432, Trial Transcript) was allowed to testify over objection that Aubrey Henry, the co-defendant who was also convicted, told him in jail on the day before Thanksgiving that Clarence Simpson did the shooting. This jailhouse statement was taped by police officers with Hall's knowledge and consent.

Warren Holmes was a detective for the police department of the City of Miami. He testified, over objection, that on November 22, 1961, after conferring with his attorney, the same co-defendant Aubrey Henry stated that Clarence Simpson "was the one that committed this robbery-murder with him".

After a finding of voluntariness by the trial court, Officer Holmes testified that on the next day he took Clarence Simpson to his office, "told him of his constitutional rights" and "I told him that Aubrey Henry had involved him in this and there was no doubt in our mind that he was the one who actually committed this holdup and shot Beatrice Dunaway", then he said, "well I will tell you about it because I was going to give myself up anyway. I was just waiting for Christmas". "So he came right out and told us the whole story about it. He was very cooperative". According to the testimony of Officer Holmes, Simpson proceeded to admit that on the morning of the murder he met Aubrey Henry and Joe Millings, Jr., they were all drinking, and one of them asked him if he had a gun and he said that he could get a gun. So, he went and got a gun. In the meantime, Millings had a shotgun. That when they got to the house in question, he, Simpson, announced that this was a holdup and made those present lie on the floor. That Gus Hogan then came in, they told him to lie on the floor, and took his money. Simpson further stated that when the deceased, Beatrice Dunaway, came in, he instructed her to sit down, that this was a holdup, that after seeing that they were not getting any money, he decided to leave, and as he was walking out, he tripped and the gun went off, that he was not aware that he had shot and killed Beatrice Dunaway, but ran out the back door, jumped the backyard fence and made his escape. Simpson's version that the killing was accidental did not exonerate him because it took place during the commission of another felony.

This verbal confession was afterwards reduced to writing in question and answer form by a stenographer but Simpson did not sign it.

Another police officer, Detective Robert John Utes (p. 745, Trial Transcript) testified to a written statement by the co-defendant Aubrey Henry, which was admitted into evidence as State's Exhibit Number 6. Henry described the robbery as heretofore described, but claimed that he did not at the time know his companion in crime, the robber and the killer, and said that he ran out the back door, hearing a shot fired just as he got outside, whereupon his then unknown companion, later identified as Simpson, joined him and they left over the backyard fence.

Utes then testified to the confession given by Simpson, already described by Holmes.

The State was next permitted to introduce an out of court statement given by co-defendant Eugenia Thomas, placing Simpson in her home with a gun in his jacket immediately prior to the robbery-murder, as well as her statement quoting Joseph Millings, Jr., another co-defendant, to the effect that Simpson did the shooting.

Detective Utes being recalled, testified on further cross examination that upon a face to face confrontation Gus Hogan (the first man robbed) stated that Aubrey Henry, and not Simpson, was the man who fired the fatal shot. Hogan testified at the trial that he knew Henry was the man who hit him in the eye with a pistol and robbed him of $170 but he could not identify Simpson and did not see the shot fired, as he was lying face down with his...