State of Texas v. Graves

• Decision Date: 07 September 1967
• Docket Number: No. 23100.,23100.
• Parties: STATE OF TEXAS and Dr. George J. Beto, Appellants, v. James Edward GRAVES, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

380 F.2d 676 (1967)

STATE OF TEXAS and Dr. George J. Beto, Appellants, v. James Edward GRAVES, Appellee.

No. 23100.

United States Court of Appeals Fifth Circuit.

July 14, 1967.

Rehearing Denied September 7, 1967.

Sam R. Wilson, Asst. Atty. Gen. of Texas, Houston, Tex., Lonny F. Zwiener, Asst. Atty. Gen., Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Exec. Asst. Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for appellants.

J. S. Bailey, Jr., J. Charles Whitfield, Jr., Peter S. Navarro, Jr., Houston, Tex., for appellee.

Before HUTCHESON and DYER, Circuit Judges, and SPEARS, District Judge.

HUTCHESON, Circuit Judge:

Tried in a Texas state court for murder with malice, Graves was convicted by jury verdict and sentenced to death. The conviction was affirmed on direct appeal,¹ but Graves was successful in obtaining a writ of habeas corpus from the court below. The grant of the writ was based on two grounds: that Graves was denied the effective assistance of counsel under the precepts of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); and that the procedure used by the state trial judge to determine the voluntariness and admissibility of Graves' confession did not comply with the standards set forth in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Because we disagree with the district court on both points and conclude that neither has merit, we reverse.

Graves was arrested for the murder of a motel manager which had occurred in the course of an attempted armed robbery. The arrest was made at Graves' residence by Houston police officers on November 15, 1962, at about 9:50 p. m. No contention is raised concerning the legality of the arrest, which was executed without a warrant upon information from an accomplice.² While in custody and after interrogation, Graves signed a statement which describes the circumstances under which the victim was shot while attempting to resist the robbery. Graves says that he gave the confession at 2 a. m. on November 16, about 4 hours after his arrest. Police officers testified that he confessed much sooner than that.

With regard to the Escobedo contention, it is undisputed that the confession was made without Graves having been advised by an attorney and without having been informed by police of his right to counsel. Graves claims that he requested counsel, which is denied by the police. The district court did not resolve that factual question but instead relied on Collins v. Beto, 348 F.2d 823 (5th Cir. 1965), to hold that, in any event, a request for counsel was not required to effectuate the holding of Escobedo. The court concluded that Graves was denied his constitutional right to the assistance of counsel at a critical stage of the prosecution because he was not affirmatively informed of his right to consult with an attorney. We may quickly dispose of this point because subsequent to the habeas hearing below, the Supreme Court held that Escobedo will not be applied retroactively. It therefore does not govern the case at bar since Graves' trial commenced on June 24, 1963, which was prior to the date of the Escobedo decision. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). It should be noted, however, that while Escobedo provided new safeguards against the use of unreliable statements at trial, its nonretroactivity does not preclude persons, like Graves, whose trials were already completed, "from invoking the same safeguards as part of an involuntariness claim." Id. at 730, 86 S.Ct. at 1779. See also Davis v. State of North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

For an understanding of our disposition of the claim based on Jackson v. Denno, it is desirable to set out the substance of the confession and in some detail the manner by which the voluntariness of the confession was determined. The confession states that Graves and an unidentified man went into a motel for the purpose of committing robbery; that Graves walked inside, pulled a pistol from his waistband and demanded that the manager put the money in a sack; that the manager pulled out a club and hit Graves in the palm of his raised hand; that Graves then shot the manager four or five times, ran to the car, and later threw the gun in a bayou. As an after-thought, it was added that Graves had lost some items in the scuffle at the motel, a plain felt hat and some black sun glasses.

When the State offered Graves' statement as evidence at the trial, the defense attorney asked that the jury be removed so that the officer who took the statement could be questioned out of the jury's presence. The jury was removed, and a preliminary hearing with regard to the confession's admissibility was held.

The defense attempted to establish that the officer had included in the statement information in addition to that which was supplied by Graves. This suggestion was denied by the officer. The defense then objected to the introduction of the statement on the ground that "it wasn't voluntarily made, and that the officer wrote this situation to fit his own phraseology."

Graves then testified to support his objection to the introduction of the statement. His testimony adduced on direct examination is set out in the margin in its entirety.³ He stated that he did not make the statement voluntarily, but all that he complained of was that the statement was not factually accurate in a few particulars. He testified that he had told the officer taking the statement that the manager had hit him on the head, not in the palm of the hand, and he denied having said that he had lost a hat or glasses.

However, on cross-examination Graves conceded that he had lost a hat and perhaps some glasses at the motel but yet insisted that those in the possession of the police were not the ones he had lost. The State was not limited on cross-examination to the voluntariness issue but was permitted to question Graves for all purposes. It then proceeded to examine Graves closely as to the other details contained in the statement, all of which he admitted. At the end of the cross-examination the defense reiterated the objection to the statement on the ground that Graves "denies the stuff he didn't put in there." The trial judge overruled the objection.

Graves did not return to the stand when the jury was recalled. Thus the jury did not hear any testimony by him that the statement contained details which he had not admitted, nor did he offer any evidence before the jury on the question of voluntariness. No assertion was made as part of an involuntariness claim that Graves allegedly had requested, but had been denied, the right to see a lawyer; nor is it made here. His sole defense was insanity, and the jury was not instructed on the issue of voluntariness.

Following affirmance of the conviction, Graves applied to the Texas Court of Criminal Appeals for habeas corpus. That court requested from the state trial judge a certification of his finding on the voluntariness of the confession. The judge certified that he had found the confession to have been given voluntarily. Based on that certification the Texas Court of Criminal Appeals denied the writ.⁴

Having exhausted state remedies, Graves petitioned for habeas corpus in the court below. The district court conducted an evidentiary hearing at which testimony was taken with regard to the several contentions raised by Graves.⁵ The state trial judge was called to testify concerning the method he had used to determine the admissibility of the confession. He stated that before passing upon its admissibility he had considered the circumstances under which it was obtained. He had decided that it was voluntarily given. Otherwise, he said, he would not have admitted it.⁶

The court below held that it was an insufficient determination of the voluntariness of the confession for the trial judge merely to have overruled the objection to its introduction without having made a specific finding that the confession was voluntary. We cannot agree.

In Jackson v. Denno, the Supreme Court held unconstitutional the procedure employed in New York for determining the admissibility of a confession. Under the New York rule, if the evidence presents a fair question as to the voluntariness of the confession, the trial judge must receive the confession and leave the determination of its voluntariness to the jury; only if in no circumstances could it be deemed voluntary is it excluded by the judge. It was held that this procedure conflicts with the accepted principle that an accused is deprived of due process of law if his conviction is founded in whole or in part upon an involuntary confession, even though it is true, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), and even though there is ample evidence aside from the confession to support the conviction, Payne v. State of Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). The Court said that the New York procedure "poses substantial threats to a defendant's constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined." 378 U.S. at 389, 84 S.Ct. at 1787. The Court formulated the rule that before a confession may be considered by the convicting jury, there must be a "reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which voluntariness may depend."⁷ 378 U.S. at 391, 84 S.Ct. at 1788.

Two procedures approved by the Court were the so-called Orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, and the so-called Massachusetts rule, under which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused. These...