State ex rel. Barnes v. Henderson

• Decision Date: 08 January 1968
• Parties: , 220 Tenn. 719 STATE of Tennessee ex rel. Limmie D. BARNES, Plaintiff in Error, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, at Nashville, Defendant in Error.
• Court: Tennessee Supreme Court

Page 497

423 S.W.2d 497

24 McCanless 719, 220 Tenn. 719

STATE of Tennessee ex rel. Limmie D. BARNES, Plaintiff in Error, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, at Nashville, Defendant in Error.

Supreme Court of Tennessee.

Jan. 8, 1968.

Joe B. Jones, Memphis, for plaintiff in error.

George F. McCanless, Atty. Gen., and Paul E. Jennings, Asst. Atty. Gen., Nashville, for defendant in error.

OPINION

HUMPHREYS, Justice.

Limmie D. Barnes filed a petition for writ of habeas corpus seeking to void a judgment of conviction for the offense of assault with intent to have carnal knowledge of a female under twelve, for which he was sentenced to ten years in the State Penitentiary. After an evidentiary hearing, his petition was denied, and he has appealed assigning errors which raise three questions: (1) Whether, after he had signed a written statement requesting the court to accept his plea of guilty, and this request had been accepted and he did plead guilty, his federal constitutional rights were violated when the only evidence submitted to the jury to fix his sentence was a summary of the evidence against him by the District Attorney-General; (2) Whether the plea of guilty was involuntarily made; (3) Whether petitioner was denied the benefit of competent counsel.

Petitioner was indicted on March 1, 1966 for the offense of carnal knowledge of a female under twelve. On March 3, 1966, he was arraigned on the aforesaid offense and entered a plea of not guilty. On September 23, 1966, petitioner, while represented by the Shelby County Public Defender's Office, presented to the court a written 'waiver of trial and request for acceptance of the plea of guilty', and upon its acceptance by order of the court, entered a plea of guilty. A statement of the evidence was then presented to the jury, and the jury fixed petitioner's punishment at ten years in the penitentiary.

Shortly after being transferred to the penitentiary, Barnes filed a habeas corpus petition alleging that he was arrested without a warrant; that he was questioned by Memphis police officers while being transported from Ripley, Tennessee, (where he had been arrested), to Memphis, without being warned of his constitutional rights; that after his arrival in Memphis, he was further questioned by police officers and was beaten until he gave officers a statement concerning the offense; that he was confined for some weeks without the benefit of an attorney; that he was not confronted with the witnesses against him either at his preliminary hearing or his trial; that his coerced statement was introduced before the jury which was sitting to fix his punishment; and that the attorney appointed to represent him failed to make any investigation of the charges against him or of the alleged coercion by the police officers. In an amended petition it was alleged that the only evidence presented to the jury to fix petitioner's punishment was a statement by the assistant district attorney.

An evidentiary hearing was conducted before Circuit Judge Ben L. Hooks, on March 16, 1967. The petition was denied Judge Hooks' finding: That the petitioner was not beaten or mistreated by police officers; that he was not coerced to sign a confession; that no confession was used against petitioner; that petitioner was represented by capable and conscientious counsel; that a satisfactory investigation of the case and proceedings against petitioner was made by his attorney; that the attorney was successful in negotiating a minimum sentence for the offense on which petitioner was charged; that petitioner's plea of guilty was freely and voluntarily entered after he was examined by his attorney and the trial judge with regard to whether the plea of guilty was voluntarily made; and that neither the petitioner nor his counsel offered any objection to the statement of the facts made by the assistant attorney-general to the jury.

Petitioner testified at the evidentiary hearing that he was arrested by a deputy sheriff in Ripley; that he was transported to Memphis by two police officers; that during this trip he was questioned and when he failed to provide his questioners with any statements they informed him that when he got back to Memphis he would tell them what they wanted to know; that after being placed in the Memphis jail he was struck three times with something which he could not identify or describe; that he signed some papers given to him by his attorney but no one explained to him what these papers were and he did not know their contents; that he entered a plea of guilty because the public defender told him if he went to trial he would receive twenty-five years. He stated that he gave the officers no statement while he was in the car and that his objection to counsel representation was that his attorney told him to plead guilty thus providing him no choice.

Petitioner admitted that he remembered the trial court questioning him with regard to his waiver and entry of his plea of guilty and further that he remembered saying it was an act of his own free will and did not involve any 'pressure'.

Although petitioner stated no testimony was offered at the time the plea was submitted to the jury, it is clear he does not remember the particulars of that proceeding.

Lt. D. W. Williams of the Memphis Police Department, testified that he and another officer transported petitioner from Ripley to Memphis; that petitioner was advised of his rights prior to being returned to Memphis; that petitioner began talking about the offense immediately after being brought from the Tipton County Jail and continued to make statements at the Memphis Police Headquarters, practically 'gushing out' his statement; and that petitioner was not beaten, nor mistreated in any way.

Mr. Edward Draper of the Public Defender's Office testified that he represented petitioner; that he conferred with petitioner some two or three times, after the withdrawal of Mr. Sam F. Cole, Jr., as petitioner's retained counsel; that the first offer by the State was for twenty or twenty-five years, but that he succeeded in having this reduced to ten years; that he received copies of the statements petitioner made to the Memphis Police officers; that he remembers petitioner stating that these statements had been coereced; but that this was a frequent complaint by persons represented by the Public Defender's Office and that he was unable to develop any concrete proof with regard to petitioner's statements. Mr. Draper further testified that he fully informed petitioner of the possibility of acquittal at the trial; that he also informed petitioner of the maximum sentence involved for this offense; that he explained that ten years was the minimum sentence; and that both he and the trial judge explained the waiver of trial and plea of guilty to the petitioner.

Mr. Draper further stated that his investigation consisted only of talking to the petitioner and that he did not talk to either the victim or the police officer. He testified that the district attorney explained the facts to the jury and that if any objectionable statement had been made by him he would have offered an objection.

The trial judge stated that he recalled asking the petitioner if he desired to make any statement regarding coercion by the police officers.

The assignments of error made here may be summarized as follows:

1. That petitioner's conviction is void because evidence was not presented to the jury to allow the fixing of punishment as required by T.C.A. § 40--2310; that statements by the district attorney should not be considered as evidence; and that failure to object to these statements should not be considered as a stipulation or as working an estoppel against petitioner.

2. That petitioner was denied benefit of competent counsel, and

3. That petitioner's conviction was a result of an involuntary plea of guilty.

The first issue presented to the court concerns the application of T.C.A. § 40--2310 i.e., presentation of evidence to the jury to fix a sentence on a plea of guilty.

Tennessee Code Annotated, § 40--2310 provides as follows:

'Fixing penalty on plea of guilty.--Upon the plea of guilty, when the punishment is confinement in the penitentiary, a jury shall be impaneled to hear the evidence and fix the time of confinement, unless otherwise expressly provided by this Code.'

The only case we have discussing this Code section is Knowles v. State, 155 Tenn. 181, 290 S.W. 969 (1927), where we reversed because no statement of the facts which was either expressly or implicitly agreed upon was presented to the jury. But to the contrary, summarized statements of the facts were submitted to the jury by each side. We held, under those circumstances, that the statute had not been complied with and reversed for a new trial. The Knowles case has no application here, as in that case no agreed statement of the facts was made on which the jury could act; and the question there was whether this non-compliance with the statute was a legal error for which the court would reverse for a new trial. There was no question in that case, as here, with respect to voiding a final and presumptively valid judgment because of a procedural, non-constitutional error with respect to evidence.

It is recognized in this State, as in all jurisdictions, that a plea of guilty must be made voluntarily and with full understanding of its consequences. In Brooks v. State, 187 Tenn. 67, 72, 213 S.W.2d 7, 9 (1945), we said:

'A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice with full understanding of the...