Smotherman v. Beto

• Decision Date: 24 November 1967
• Docket Number: Civ. A. No. 3-1751.
• Citation: 276 F. Supp. 579
• Parties: Leon SMOTHERMAN, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Texas

276 F. Supp. 579

Leon SMOTHERMAN, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 3-1751.

United States District Court N. D. Texas, Dallas Division.

November 24, 1967.

COPYRIGHT MATERIAL OMITTED

Richard A. Moore, of Coke & Coke, Dallas, Tex., for petitioner.

Crawford C. Martin, Atty. Gen. of Texas, Ronald Luna, Asst. Atty. Gen. of Texas, Austin, Tex., for respondent.

OPINION

WILLIAM M. TAYLOR, District Judge.

Leon Smotherman was convicted of statutory rape in the Criminal District Court of Dallas County, Texas, in April, 1961. A jury assessed his punishment at 99 years confinement in the Texas penitentiary. His conviction was not appealed. In 1966, Smotherman filed in federal court an application for a writ of habeas corpus, 28 U.S.C.A. § 2241, alleging that a confession given by him and introduced against him at his trial was not the product of his free will and that counsel appointed to defend him by the state court rendered him inadequate representation. A corollary issue of this latter contention is that Smotherman was denied the right to appeal his conviction due to the inept professional conduct of court-appointed counsel.

An evidentiary hearing was held to test the validity of the constitutional encroachments alleged by Smotherman. The Court is of the determination that the writ of habeas corpus must be granted.

This court does not have the benefit of the record of the trial in state court because the court reporter's notes were destroyed long prior to this hearing.

On September 27, 1960, the 11 year old prosecutrix revealed to her parents that she had engaged in sexual intercourse with Smotherman on the previous day. The girl's mother contacted the police and, on October 7, a warrant was issued for petitioner's arrest in Dallas County, Texas.

Petitioner was arrested by the Dallas police at approximately 2:00 A.M. on the morning of October 12, 1960. Around 3:30 A.M. he was transferred to the Mesquite, Texas jail where he was confined incommunicado for the following 5 days. On each of those 5 days petitioner was transported from the jail to a Texas Ranger station where he was interrogated concerning the rape. The ranger captain conducting the investigation talked to the young complainant prior to questioning petitioner and obtained the pertinent facts from her. During the several interrogations, the ranger had before him the girl's signed statement, which he used as a "guideline" in questioning petitioner, in which the girl stated not only that she had engaged in sexual intercourse with Smotherman on the night of September 26, 1960, but that she had also engaged in natural and unnatural sex relations with him since March or April of 1960. It is interesting to note that Smotherman's first confession on October 12, 1960 did not admit to the September 26 incident, but did admit to the misconduct during March of that year. His second confession, dated October 13, did admit to the September 26 affair, being the crime with which he was charged. The third confession bearing a date of October 16, not only admitted the September 26 offense, but gave additional details concerning surrounding circumstances which served to corroborate other matters contained in the girl's statement. It was not until this last confession that the ranger felt he "had all the facts" he "could get" from petitioner. Following this latter confession, which the ranger testified "pretty well corroborated the girl's statement", Smotherman was released on bond.

Smotherman testified that he did not sleep the night of his arrest. He was placed in a solitary confinement "hole" in the jail. At 5:30 A.M., he was given a hard boiled egg and a donut. Petitioner was removed from the "hole" when the Mesquite police became cognizant of the fact that he had emphysema and asthma. He testified that he asked the police to get his medicine out of his car which he was required to take for his asthma, but they never did so. He was not permitted to shower or shave that morning.

Around 9:00 A.M., Smotherman was taken to a Texas Ranger station. He was placed in a very small room which he thought was a closet for about 15 minutes. He was taken from the room to the office of Texas Ranger Captain Badgett where he was questioned for about 1½ hours. He was returned to the Mesquite jail around 11:00 A.M.

Smotherman stated he did not sleep much that night and was aroused the following day around 5:00 A.M., and given a donut. Again, he was not permitted to shower or shave and was taken back to the ranger station where he was questioned for 1½ hours. He was thereafter returned to the Mesquite jail where he was fed a hamburger and a cup of coffee for lunch. He was given no supper.

On October 14, he made the by then customary sojourn to the ranger station. While there he was fed a hamburger and a cup of coffee for lunch. He was returned to the Mesquite jail where he received no dinner.

On Saturday, October 15, petitioner was again taken to the ranger station for interrogation. He was given no breakfast or lunch, but had dinner that night at the Garland, Texas jail where he spent the night for reasons unknown to him.

October 16 was again spent at the ranger station. Petitioner received no meals on that day. It was on this day, Smotherman testified, that he signed the confessions.

On October 17, petitioner was transported to the Dallas County jail and was released on bond.

Smotherman testified that during the 5 days he was held by the Mesquite police he was not permitted to use the telephone to make any calls. He got word to his sister and brother-in-law that he was in jail by way of a Mesquite jail prisoner who was released on October 14 or 15. He was not, during that time, taken before a magistrate and warned of his rights.¹

The cell in which petitioner was incarcerated had a steel "bed" for him to sleep on. He offered to pay for toiletries, but was never allowed to shave or shower.

As to Friday of the week of interrogation, Smotherman's testimony was that he was hit in the ribs by a ranger named "Lynch", who was present while the ranger captain was questioning him. Lynch pulled his hair and called him abusive and obscene names. He testified he signed the confessions because he had been in custody of the police for a long period of time, had received no medicine for his asthmatic condition, and was physically weak.

The ranger's testimony contradicted petitioner's in most material respects. He related that Smotherman expressed a desire to make a statement the first time he questioned him on October 12, 1960. As evidence of petitioner's willingness to talk, the statement signed by him and dated October 12 was admitted into evidence. As a preface to taking this statement, as well as the second and third which petitioner made, the ranger warned him that anything he said could be used against him and that he had a right to have a lawyer "anytime he wanted."² Following this warning, however, petitioner never requested a lawyer. Nor did Smotherman ever request to use a telephone to contact friends or family.

The ranger was sure that petitioner was fed a noon meal each day he was at the ranger station. He stated that there was, in 1960, a ranger named Lynch stationed in Mineral Wells, Texas, but he "did not know that he was in on this investigation."

According to the ranger, it was necessary to take 3 confessions from petitioner because he kept "changing his story" and the ranger wanted to have one statement in its entirety rather than having to make additions to the original one.³

A detective of the Mesquite Police Department testified that petitioner was fed every day, that he never requested to use a telephone and that he never requested the police to secure his medicine for him.

Smotherman was released from the Dallas County jail on October 17, 1960. The lawyer who obtained his release worked on the case until petitioner's money could no longer purchase his services. Just when this lawyer ceased to represent petitioner was not made clear at the hearing. In any event, the state court appointed petitioner an attorney to represent him a week before the trial began on April 12, 1961.

Appointed counsel received his law degree in May, 1960.⁴ He engaged in the private practice of law until May, 1961, at which time he went to work for an insurance company.

Testifying at the evidentiary hearing, court-appointed counsel expressed that following his assignment to petitioner's case he requested a postponement. The case went to trial one week thereafter.⁵ Counsel recalled discussing petitioner's case with him at least one time and possibly another. Smotherman related that he talked to the lawyer only once and for such a brief period of time that he was unable to fully discuss the case with him.

It was the lawyer's testimony that Smotherman never communicated to him that the confession he gave the ranger was obtained by duress and coercive measures. The lawyer did not examine the confessions before trial. He made no effort to examine the arrest warrant nor did he scrutinize the police records relating to petitioner's arrest and confinement. He was unaware of the length of time Smotherman spent in jail subsequent to the arrest and that he had been extensively interrogated.

For reasons not disclosed at the evidentiary hearing, petitioner's defense at the trial was insanity. Petitioner testified he gave the attorney names of five persons who could testify on his behalf,⁶ but after talking to these individuals the lawyer told him "they were no good for him." The attorney did not recall Smotherman giving him specific names of prospective witnesses. He did, however, interview some persons whom he was led to believe were family or friends of the prosecutrix and did not, therefore, summon them to testify on behalf of petitioner.

At the trial the confession was identified and the predicate for its admission...