Stevenson v. Boles

• Decision Date: 05 September 1963
• Docket Number: Civ. A. No. 1243-W.
• Citation: 221 F. Supp. 411
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Ernest STEVENSON, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

221 F. Supp. 411

Ernest STEVENSON, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. 1243-W.

United States District Court N. D. West Virginia, at Wheeling.

September 5, 1963.

Tom T. Baker, Huntington, W. Va., for petitioner.

Claude A. Joyce, Asst. Atty. Gen., for respondent.

CHARLES F. PAUL, District Judge.

Ernest Stevenson is under sentence of death, by electrocution, for first degree murder. Execution has been stayed pending the disposition of these proceedings. The order of conviction was by the common pleas court of Cabell County on September 22, 1960, after a trial in which the jury returned a verdict of guilty of first degree murder without recommendation of mercy. The conviction was affirmed, on appeal, by the Circuit Court of Cabell County, and, ultimately, by the Supreme Court of Appeals of the State of West Virginia, on July 3, 1962, by a divided court. The Opinion of the Supreme Court of Appeals and the dissenting Opinion by Judge Haymond are reported in W.Va., 127 S.E.2d beginning at page 638. The Supreme Court denied certiorari (372 U.S. 938, 83 S.Ct. 886, 9 L.Ed.2d 768).

Petitioner attacks the conviction on two grounds: (1) That he was not accorded due process and a fair trial because the jury, while ordered sequestered, was improperly supervised and that certain of the jurors were permitted outside contacts which may have subjected them to improper influences; and (2) that the court improperly admitted, over objections, the testimony of three police officers with reference to an alleged oral confession, which confession, if made, was coerced and not voluntary.

At the outset, the State urges that the alleged errors, both procedural and involving issues of the State and Federal Constitutions, have been fully considered and decided upon direct appeal, and that this court has no jurisdiction to review them upon collateral attack, and should give binding effect to the decision of the Supreme Court of Appeals in this case.

It is true, of course, that, under our system of dual federalism, the State courts as well as the Federal apply the principles of the United States Constitution. This court labors under no delusion that he acts as a reviewing court over the highest court of the State. On the other hand, with reference to federal questions, and particularly the fundamental law, this court has certain inescapable duties. His duties in this case are made crystal clear by the recent pronouncements of the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. The Chief Justice, speaking for the court, at page 318 of 372 U.S., at page 759 of 83 S.Ct., at page 789 of 9 L.Ed.2d, said:

"Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court's findings of fact, he may not defer to its findings of law. It is the district judge's duty to apply the applicable federal law to the state court fact findings independently. The state conclusions of law may not be given binding weight on habeas."

In performance of his inescapable duties, this court will follow this mandate and will give to the findings of fact of the State courts, where fairly determined and supported by the record, binding effect, and will give to the conclusions of law of the Supreme Court of Appeals the persuasive effect of the reasoning explained in the language employed — he can do no more.

Guided by these principles, it becomes apparent that the petitioner's first attack upon the conviction must fail in this court. The Supreme Court of Appeals held that, under applicable West Virginia law, it is the burden of the defendant to show prejudice resulting from any failure of the custodial officers to keep the jury properly sequestered, even in capital cases, and that no such prejudice is here shown. The State law has been authoritatively determined, and certainly the record falls far short of showing that the jurors were subjected to improper influences which might render the accused's trial violative of the tests of fundamental fairness inherent in due process. In fact, if the State law permitted complete separation of the jurors, even this would not seem to violate due process. Mr. Justice Holmes, in Holt v. U. S. (1910), 218 U.S. 245, at 250 and 251, 31 S.Ct. 2, at 5, 54 L.Ed. 1021, at 1029, observed that there is no federal requirement that a jury be kept sequestered, even in a capital case, and that a good number of the States have no such requirement.

The second of the petitioner's contentions, involving the alleged oral confession, presents very more serious and difficult questions. The facts are without substantial dispute, and, as set forth in the majority and dissenting Opinions of the Supreme Court of Appeals, are substantially supported by the record, and were not, in any material respect, challenged in the hearing in this court. A short restatement of the facts seems appropriate here.

The petitioner is a Negro, possessed of a seventh grade education, and 23 years old at the time of the alleged offense. He had no previous record of crimes involving violence, but he had been convicted of a misdemeanor involving the unauthorized use of a car. His only work experience was irregular employment as a handyman. He had served 2½ years in the army as an "ammo carrier", and never advanced beyond the rank of private. On the evening of February 4, 1960, the accused consumed a pint of whiskey at his sister's home, where he resided, between 10:00 P.M. and midnight. He went out shortly after midnight and, after walking some blocks, found a storeroom, housing a fish market, lighted and the front door open, and he entered. The fish market was in charge of one, Louise Davis, a mature Negro woman.

At about 11:00 A.M. February 5th, the owner of the fish market returned to open up for the day and found the front door closed but not locked. After entering, he discovered the body of Louise Davis back of a partition which divided the storeroom into two parts, brutally murdered. Her skull had been crushed, her lung pierced, her jaw broken and her face and nose lacerated and broken. She was covered with blood. Her clothing had been disarranged; a panty girdle had been pulled off and was still attached to the stocking on one leg, which stocking had been turned inside out. Spermatozoa were found in her vagina.

Stevenson had been seen in the fish market at about 12:25 the morning of the 5th by one witness. Another witness saw him at about 1:10 A.M. standing in the open doorway. Another witness saw him a few minutes later walking away from the vicinity of the fish market.

About noon on February 5th three uniformed policemen, in a police cruiser, arrived at the home where Stevenson was staying and placed him under arrest, announcing that they wanted him to go to headquarters to answer questions about a murder. As the four were proceeding in the cruiser enroute to the police station, one of the policemen suggested that they make a short detour and stop at the fish market. They stopped at the curb about 50 feet from the entrance. The body of the victim had not been removed from the premises, but this fact was not communicated to Stevenson by the police. One of the officers told Stevenson they were going to take him into the fish market; that there was something they wanted to show Stevenson. Stevenson demurred and the police insisted. Again Stevenson pleaded with the police not to take him in, saying that there were a lot of people around there and he didn't want to go in. The police again announced their intention of taking him in, and Stevenson said that it would not be necessary, that he would make a statement and tell the officers all they wanted to know when they got to the police station. The police started to take the accused inside and Sergeant Tomlinson told the accused that he would have to tell them now or they were going to take him inside. Tomlinson testified that he then said "I want to know now did you commit this crime" and that the accused said "yes, I did, please don't take me inside, take me to headquarters". The police then took Stevenson to headquarters where, after what must have been a very short period of questioning, the accused made a statement, which was transcribed and signed. This statement recited that it was given voluntarily with the knowledge that it might be used in court against him, and, when introduced no objection was made by the defense. The statement recited the drinking of the whiskey, his entry into the fish market, and "the next thing I remember I was walking across the street with this hammer in my hand." He hid the hammer in a garbage can in an alley, and the hammer was found by following the directions Stevenson gave. It was covered with blood, and was identified as having come from the fish market. In continuation of the statement, Stevenson told about his walking around until about 3:00 o'clock in the morning, when he went to bed, his awakening at about 11:35 and discovering his clothing blood spattered. He denied having made the oral confession and insisted that he had no recollection of events between the times he entered and left the fish market.

At the trial, and again at the hearing in this court, Stevenson maintained the version of the events recounted in his written statement, except that at the hearing here, he did admit that he might have made the oral confession. At the hearing in this court, he elaborated on the fact that there were a great number of people on the sidewalk around the fish market and people going in and out; that many of them were his friends, and explained that his extreme reluctance to go into the fish market in custody of the police resulted from the fact that he did not want to be embarrassed before his friends. He negatived any fear of mob violence, and insisted that he did not know what was in the fish market or what the police wanted...