Stickney v. Ellis

• Decision Date: 09 February 1961
• Docket Number: No. 18623.,18623.
• Citation: 286 F.2d 755
• Parties: Howard B. STICKNEY, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

286 F.2d 755 (1961)

Howard B. STICKNEY, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee.

No. 18623.

United States Court of Appeals Fifth Circuit.

February 9, 1961.

O. John Rogge, New York City, John P. Spiller, Houston, Tex., for appellant.

Samuel H. Robertson, Jr., Dan Walton, Houston, Tex., for appellee.

Before TUTTLE, Chief Judge, and JONES and BROWN, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal from the dismissal of a petition for writ of habeas corpus by the trial court, following a state murder conviction and death sentence, without conducting a hearing to determine the truth or falsity of appellant's claim that his confession used in the State Court trial had been illegally obtained. The appellant also complains of the failure of the trial court to hold a hearing on the contention that he had been denied effective assistance of counsel.

In his petition below, Stickney also charged that the State Court had denied him his constitutional rights in failing to grant a new trial for newly discovered evidence. On this charge the habeas corpus court held an extended hearing. At its conclusion, the trial judge held that the only evidence to support the charge was "fantastic and false" and held that there was no merit in the claim. Appellant does not appeal from this ruling.

As to the first two contentions, Judge Hannay, the trial judge, reviewed all the evidence submitted at the State Court trial and all the records in the State Court and those in the habeas corpus proceedings, including briefs of counsel urging that the court hold a hearing touching on the voluntary character of the confession.

Reference to the transcript of the State Court trial shows that full inquiry was made by the trial judge into the circumstances of the giving of the statement by which appellant confessed commission of the crime, both by defense counsel's taking the State's witnesses on voir dire out of the presence of the jury, and then in open court before the jury, and that the court permitted the statement to be introduced in evidence under an appropriate charge to the jury.

We think the trial judge could properly determine, as he did on the record before him, that the statement was made voluntarily and its receipt in evidence was in no way illegal.

We find that the appellant has exhausted his state remedies and that the trial court could properly entertain the application for the writ.

In their brief filed in this court, counsel for the appellant make repeated and extensive arguments touching on the Constitutionally guaranteed rights of an accused person. These statements are, in the main, unexceptionable. It is, or should be, recognized by every American court now that a coerced confession or inculpatory statement, whether the coercion results from physical or mental pressure, may not be received in evidence in a criminal case, and upon a finding that such confession or statement was drawn from an unwilling accused, a conviction resulting therefrom should be set aside. See Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Chambers v. State of Florida, 1940, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; to the recent cases of Leyra v. Denno, 1954, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Fikes v. State of Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed. 2d 246; Payne v. State of Arkansas, 1958, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed. 2d 975; Spano v. People of State of New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; and Blackburn v. State of Alabama, 1960, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242.

So, too, since Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L. Ed. 158, it is thoroughly established that every person accused of a capital crime in a state prosecution is entitled to have the effective assistance of counsel. See also Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L. Ed. 407; and Williams v. Kaiser, 323 U. S. 471, 65 S.Ct. 363, 89 L.Ed. 398. For the most recent statement of this principle see McNeal v. Culver, 81 S.Ct. 413.

There is no doubt, either, that in a proper case the fact of the denial of either of the protections just discussed can be found in a Federal habeas corpus proceeding, notwithstanding a prior contrary decision by the state courts. As said by the Supreme Court in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 437, 448, 97 L.Ed. 469, the District Court's review on habeas corpus of a state conviction is not "a case of a lower court sitting in judgment on a higher court. It is merely one aspect of the Supremacy Clause of the Constitution whereby federal law is higher than State law."

However, it has been authoritatively decided by the Supreme Court that unless upon reading the transcript of the proceedings of a state court trial, the habeas corpus judge finds a "vital flaw" in the state court proceedings, he may, although he is not required to, accept the determination of the subsidiary facts creating the constitutional issue as binding. See Brown v. Allen, supra. Also see Rogers v. Richmond, 357 U.S. 220, 78 S. Ct. 1365, 2 L.Ed.2d 1361. There, in denying certiorari to the Court of Appeals for the Second Circuit, the Supreme Court restated the proposition enunciated by Mr. Justice Frankfurter in his separate opinion in Brown v. Allen. The Supreme Court, however, has granted a subsequent review of the later opinion of the Court of Appeals for the Second Circuit in United States ex rel. Rogers v. Richmond, 271 F.2d 364.

We have here, then, the question whether the District Court was in error in accepting the determination of the Texas Trial Court as affirmed by the Court of Criminal Appeals, Stickney v. State, Tex.Cr.App., 336 S.W.2d 133, certiorari denied 363 U.S. 807, 80 S.Ct. 1245, 4 L.Ed.2d 1151, on the issue of voluntariness of the confession without conducting a further hearing to permit appellant to relitigate that issue.

We have carefully read the transcript of the State Court trial. We find that upon the tender in evidence of the statement signed by Stickney proof was made outside the presence of the jury to permit the trial court to make the preliminary determination as to the admissibility of the statement,¹ counsel for Stickney took each witness for the state on voir dire and examined him at length as to the time, place and circumstances surrounding the questions and statements that were taken. This examination disclosed no circumstances of a coercive nature, no lack of education, no racial discrimination, no prolonged period of questioning, no denial of opportunity for Stickney to see his mother in private (he saw her on at least two occasions), and no denial of the right to consult in private with his privately employed counsel. It disclosed the facts that Stickney had been arrested under a warrant charging him with the murders of Shirley Barnes and her husband and that there was outstanding a Federal warrant for his arrest on a charge of flight across state lines to escape prosecution. It also disclosed that he had not been indicted or been given a hearing before a Magistrate. It disclosed the fact that Stickney conferred at least two times with his lawyer during the period prior to the making of the statement. The testimony disclosed the fact that Stickney was taken to the area where the body of the husband had been found, for the stated purpose of seeing "if he could show me where he threw the body" and also to the area where the killing of Shirley was thought to have taken place. During this trip, one of the officers showed Stickney six "admittedly gruesome" photographs of the body of the victim, in an effort, the officers said, to "see if he was telling the truth about the way he disposed of her body".²

The trial court held that the showing made warranted the submission of the statement to the jury, whereupon much of the examination upon direct and cross-examination was repeated to the jury. The judge, in his charge to the jury, said:

"You are instructed that before you may consider the purported statement of the defendant, which is in evidence before you as exhibit No. 16, for any purpose you must first believe from the evidence beyond a reasonable doubt that the same was voluntarily and freely made by the defendant and signed by him.

"If you believe from the evidence, or if you have a reasonable doubt thereof, that said purported statement was not freely and voluntarily made and signed by the defendant, or that same was made as a result of coercion, complusion sic or force, either physical or mental, or by reason of any promise made to the defendant, then you will not consider said statement for any purpose whatsoever."

Following the trial and filing and overruling of a motion for a new trial by appointed counsel, other counsel, including those now representing Stickney, entered the case and filed an amended motion for new trial, attacking the admissibility of the conviction. On appeal to the Court of Criminal Appeals the judgment of conviction was affirmed. In its original opinion the court primarily discussed the weight of the evidence and certain procedural points not now in issue. Then, on motion for re-hearing the appellate court dealt extensively with the attack on the admissibility of the confession. The court took as true, as it was required...