Stevenson v. Boles, 9202.

• Decision Date: 28 April 1964
• Docket Number: No. 9202.,9202.
• Citation: 331 F.2d 939
• Parties: Ernest STEVENSON, Appellee, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

331 F.2d 939 (1964)

Ernest STEVENSON, Appellee, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellant.

No. 9202.

United States Court of Appeals Fourth Circuit.

Argued January 21, 1964.

Decided April 28, 1964.

Claude A. Joyce, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen. of West Virginia, on brief), for appellant.

Ronald P. Sokol, Charlottesville, Va. Court-assigned counsel (Tom T. Baker, Huntington, W. Va., Court-assigned counsel, on brief), for appellee.

Before SOBELOFF, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.

PER CURIAM.

This is an appeal by the State of West Virginia from an order of the District Court directing that the prisoner Ernest Stevenson be released or retried within a reasonable time. The District Court found that the prisoner's constitutional rights had been violated by the introduction at his original trial of a coerced oral confession. The District Court's opinion is published at 221 F.Supp. 411.

On February 5, 1960, at 11:00 a.m. the body of Louise Davis was found lying in a pool of blood in the back room of the Atlantic Seafood Shop in the city of Huntington, West Virginia. She had been brutally murdered at about 1:00 o'clock that morning. Her head was crushed and both jaws broken. She had a stab wound in the chest, and there were indications that she had been raped. The owner of the shop testified that $42.00 was missing from the cash register. Shortly after the crime was discovered the police learned that the prisoner and an unidentified man had been observed at the scene of the crime at about the time fixed for the death. They went to the prisoner's sister's home, where he was residing, and took him into custody. Instead of taking him directly to the police station they "detoured" by the scene of the crime. The state's brief succinctly sets forth what happened thereafter.

"The police arrived on the scene shortly after 11:00 a. m. Three members of the police force, namely, Joe Coleman, B. T. Tomlinson, and Don L. Salyers, took the petitioner into custody at his home on 28th Street, and conveyed him by automobile from his home down 8th Avenue to a point about fifty feet from the Atlantic Seafood Shop, at which time officer Tomlinson asked the petitioner if he committed the crime, and then indicated he was going to take him into the establishment. The petitioner said, don\'t do that, that he would tell the officers what they wanted to know when they arrived at the police station. Officer Tomlinson then said to the petitioner, `I want to know now, did you commit this crime,\' to which the petitioner replied, `Yes, I did, please don\'t take me inside, take me to headquarters.\' "Policeman Joe Coleman testified that the petitioner said, `I don\'t want those people to look at me.\' Policeman Don Salyers testified that the petitioner said, `he didn\'t want to face all those people.\' The petitioner, at the trial in the Common Pleas Court, gave substantially the same version as to what happened near the Atlantic Seafood Shop as that given by the police officers. He denied, at the trial, that he admitted that he killed the woman.

"The post-conviction hearing was held in the District Court of the United States for the Northern District of West Virginia on August 28th, 1963, upon the petition for a writ of habeas corpus, at which time the petitioner testified that at the time the police officers conveyed him to the vicinity of the Atlantic Sea-food Shop there was a large group of people in front of the fish market, all of whom were friends of his, and that he did not want to face all those people, or for them to see him under arrest. He further stated that it was a source of embarrassment to him.

"At the post-conviction hearing the petitioner testified that he might have admitted that he killed the deceased.

"The petitioner also testified that he was twenty-three years old at the time of the crime. He had a seventh grade education. He had spent three years in the Army. His prior criminal record was one arrest for a felony, which was reduced to a misdemeanor." His offense was the unauthorized use of a car.

The voluntariness of the confession — the ground of the District Judge's decision to grant the petitioner conditional release on habeas corpus — we do not reach. Hence we do not pass upon the right or wrong of the Court's findings and conclusions. The same end, however, is reached by our view: that in his trial the petitioner was deprived of Fourteenth Amendment due process by the criminal trial court's failure to instruct the jury explicitly that before they could accept the oral confession, they must believe beyond a reasonable doubt that it was given on his own volition.

Without his disclosure, it is possible that guilt could not have been found. Though perhaps too tardily interposed to require a preliminary hearing on the issue, cf. United States ex rel. Jackson v. Denno, 309 F.2d 573 (2 Cir. 1962), cert. granted, 371 U.S. 967, 83 S.Ct. 553, 9 L.Ed.2d 538 (1963); Wilson v. Sigler, 285 F.2d 372, 377 (8 Cir. 1961); United States v. Aviles, 274 F.2d 179, 192 (2 Cir.) cert. denied, Evola v. U. S., 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009, 362 U.S. 982, 80 S.Ct. 1068, 4 L.Ed.2d 1015, rehearing denied, 363 U.S. 858, 80 S.Ct. 1610, 4 L.Ed.2d 1739 (1960); United States v. Bando, 244 F.2d 833, 845-846 (2 Cir.), cert. denied, 355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53 (1957); but see Crosby v. United States, 114 U.S. App.D.C. 233, 314 F.2d 238 (D.C.Cir. 1962); State v. Brady, 104 W.Va. 523, 140 S.E. 546, 549 (1927), nevertheless objection to the statement was voiced at trial with respect to voluntariness. Thus, the defendant's freedom of will at the time became an issue in the case. True, defense counsel made no request for a specific instruction, but with the proof of guilt pivoted upon the acknowledgment of guilt and with the question of voluntariness plainly before the Court, it was indispensable to fairness of trial that the jury be specially counselled on the point.

Involuntariness, it is...