Smith v. State of Texas, Civ. A. No. 64-H-626.

• Decision Date: 13 January 1965
• Docket Number: Civ. A. No. 64-H-626.
• Citation: 236 F. Supp. 857
• Parties: Application for Writ of Habeas Corpus and for Stay of Execution of Joe Edward SMITH, Petitioner, v. The STATE OF TEXAS, Respondent.
• Court: U.S. District Court — Southern District of Texas

236 F. Supp. 857

Application for Writ of Habeas Corpus and for Stay of Execution of Joe Edward SMITH, Petitioner, v. The STATE OF TEXAS, Respondent.

Civ. A. No. 64-H-626.

United States District Court S. D. Texas, Houston Division.

December 14, 1964.

As Modified January 13, 1965.

Thompson, Hippard, Gibson, Korioth & Tita, James J. Hippard, Houston, Tex., for petitioner.

Sam Robertson, Jr., Asst. Dist. Atty., for Harris County, Tex., for respondent.

NOEL, District Judge.

Paraphrasing the language of the United States Court of Appeals for the Fifth Circuit¹ in its second opinion in this matter, 329 F.2d 498, this case is still in the throes of the piecemeal, post-conviction, collateral litigation of issues which has become the established practice where there is a conviction carrying a substantial penalty. Five years and five months after the date of the offense, the case is again before this Court on petition for writ of habeas corpus, the third. Finality has not yet been achieved although petitioner has been tried and convicted in the State District Court, appealed to the Texas Court of Criminal Appeals, submitted two applications for writ of habeas corpus to the Fifth Circuit, been before this Court four separate times on applications for writ of habeas corpus, appealed twice to the Fifth Circuit and filed with but had denied by the United States Supreme Court, a petition for writ of certiorari. Since being convicted and having had his execution set on several different occasions, petitioner has pursued further relief in various ways, but each time it has been denied.

Briefly, after a trial before a jury² held on April 11, 1960, the jury found petitioner Joe Edward Smith guilty of murder with malice aforethought. The statement of facts from the trial court contains the confession of Smith, that he was one of five negro youths who on July 20, 1959 were walking toward River Oaks, a residential section of Houston, Texas, around six o'clock p. m. They were on West Gray Street near Dunlavy. They met and "hit a white boy that was on a bicycle and knocked him off of it. This boy looked to be about ten or eleven. Then me and Adrian Johnson grabbed the white boy and packed him across the street to the other side of the curb. Then David Clemmons got the white boy and packed him to the little house setting on the dirt yard lot. Charles Archer was holding the white boy's mouth to keep him from hollering. David took him inside the little house. Adrian opened the door. We all went inside the little house * * *." Without quoting the revolting details as to what petitioner confessed actually occurred, it was that each of the gang of five committed anal sodomy on the boy, following which two of the negro boys "put the white boy in the ice box that was inside the little house."³

The white boy was William Merrill Bodenheimer, age 12, deceased. He had left his home on his bicycle to go swimming but when he did not return at the expected time, a search was commenced. His nude body was found in the refrigerator at the location described in the confession, the following day at 9:45 o'clock a. m.

This confession was admitted in evidence by the trial court over objection of the defendant's (petitioner here) counsel, and has been the subject matter in one way or another at each step of the prolonged ensuing proceedings.⁴ It is the subject matter of this attack, as it was in petitioner's first and second petitions.⁵

Petitioner now claims violation of his right to a fair trial guaranteed him under the Fourteenth Amendment of the Constitution of the United States, in that the trial judge did not make a preliminary finding himself, without the aid of the jury and out of the presence of the jury, that the above confession was voluntary, but on the other hand, left for the determination by the jury together with its determination of the guilt or innocence of petitioner, the question of whether the confession was voluntarily made. Petitioner relies solely upon the case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

The Jackson decision was the sole predicate for petitioner's motion to further stay mandate; to vacate the judgment of the Court of Criminal Appeals; and to remand the case to the District Court, filed in the United States Court of Appeals for the Fifth Circuit before its mandate had issued in petitioner's second appeal from the action of this Court, on September 2, 1964. See footnote 4, sub-section B.(5) of this opinion. Petitioner urged the Fifth Circuit to reopen the appeal from this Court's dismissal of petitioner's second application for writ of habeas corpus, to vacate the judgments of all other courts and to allow the Criminal District Court of Harris County, Texas, a reasonable time to institute further proceedings not inconsistent with the requirements of Jackson. In his brief filed in support of the motion, petitioner also urged that the Fifth Circuit had the power to stay or recall its mandate, to reopen the case and to make such disposition of the case as justice might require, citing Meredith v. Fair, 306 F.2d 374 (5th Cir. 1962). The Court denied petitioner's motion. While no opinion was written on the denial of the motion by the Fifth Circuit, this Court is of the opinion that such denial was, of necessity, preceded by a determination by the Fifth Circuit that petitioner's case does not fall within the proscriptions of Jackson.⁶

But aside from the question of whether or not the contentions of petitioner have been rejected by the Fifth Circuit, a precise measurement of his most recently claimed constitutional deprivation against the proscriptions of Jackson demonstrates that he is incorrect in his understanding of the teachings of that case and is not entitled to his writ.

In Jackson the Supreme Court gave express approval to the Wigmore or Orthodox procedure for determining the voluntariness of confessions, and express disapproval to the New York procedure. The Wigmore procedure provides that the trial judge himself solely and finally must determine the voluntariness of the confession.⁷ The New York procedure is that the trial judge makes a preliminary determination regarding a confession and excludes it if in no circumstance could the confession be deemed voluntary, but if the evidence presents a fair question as to its voluntariness, as where certain facts bearing on the issue are in dispute or where reasonable men could differ over the inferences to be drawn from undisputed facts, the judge must receive the confession and leave to the jury, under proper instructions, the ultimate determination of its voluntary character and also its truthfulness.⁸

While the Jackson case came up from New York, not Massachusetts, the Court discussed and expressly approved the Massachusetts procedure.⁹ The latter is that the trial judge hears all the evidence, resolves evidentiary conflicts, and makes his own judgment as to the voluntariness issue, rejecting confessions he deems involuntary and admitting only those he believes voluntary. Having first determined it to be voluntary, the confession is admitted in evidence and submitted to the jury with instructions that the jury must find the confession voluntary before it may consider it.¹⁰ Thus, as distinguished from the New York procedure, the judge may, indeed must, weigh the evidence as to voluntariness first, before permitting it to be weighed by the jury. The judge may reject and not even admit the confession in evidence if he is not persuaded as to its voluntariness.

Texas courts have had no occasion to categorize or label its procedure for determining the voluntariness of a confession. It would appear that the Wigmore or Orthodox procedure is not used or recognized in Texas.¹¹ Without labeling the Texas procedure as the equivalent of either the New York or Massachusetts procedures (as such are labeled in Jackson), an examination of the pertinent Texas cases reveals that it is within the discretion of the trial judge to determine which of these two procedures he will follow. This discretion was clearly recognized by the Court of Criminal Appeals of Texas in Wheatley v. State, 117 Tex. Cr.R. 599, 34 S.W.2d 876 (1931).¹² Moreover, this discretion, or at least the absence of any prevailing policy in Texas requiring the application of the New York procedure by the trial court,¹³ was evident from the recent opinion of Judge Ben C. Connally in Crow v. Beto, 237 F.Supp. 19 (S.D.Tex.1964). There, it was held that the state district judge had met the requirements of Jackson v. Denno prior to submitting the confession to the jury. Furthermore, it is the opinion of this Court that the United States Supreme Court in Jackson correctly evaluated Bingham v. State, 97 Tex.Cr.R. 594, 262 S.W. 747 (1924), when it asserted that that opinion clearly held it to be reversible error not to give the tendered confession such preliminary consideration as required by the Massachusetts procedure, before admitting it in evidence.¹⁴ Thus, it cannot be said that at the time of petitioner's trial a clear requirement existed that Texas trial judges follow the Jackson-prohibited New York procedure in determining the voluntariness of a confession.

In the final analysis, therefore, the problem is not one of evaluating labels or categorizing procedures under particular labels. Put very simply, the problem or question here is, did the Texas trial court give the confession of Joe Edward Smith that character and quality of preliminary consideration as to voluntariness required by the new concept of the requirements of the due process clause delineated in Jackson, before permitting the jury to consider the confession in its deliberations?

The question here is not, as counsel for petitioner would put it, whether the jury was present or not present, at the time the trial court heard the predicate laid by the prosecution for the admissibility of petitioner's confession....