United States v. Ogilvie

• Citation: 337 F.2d 427
• Decision Date: 28 September 1964
• Docket Number: 14595,No. 14397,14597.,14397
• Parties: UNITED STATES of America ex rel. William WITHERSPOON, Petitioner-Appellant, v. Richard OGILVIE, etc., et al., Respondents-Appellees. UNITED STATES of America ex rel. William WITHERSPOON, Petitioner-Appellee, v. Richard B. OGILVIE, etc., et al., Respondents-Appellants. UNITED STATES of America ex rel. William WITHERSPOON, Relator-Cross-Appellant, v. Richard OGILVIE, etc., et al., Respondents-Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

337 F.2d 427 (1964)

UNITED STATES of America ex rel. William WITHERSPOON, Petitioner-Appellant, v. Richard OGILVIE, etc., et al., Respondents-Appellees.

UNITED STATES of America ex rel. William WITHERSPOON, Petitioner-Appellee, v. Richard B. OGILVIE, etc., et al., Respondents-Appellants.

UNITED STATES of America ex rel. William WITHERSPOON, Relator-Cross-Appellant, v. Richard OGILVIE, etc., et al., Respondents-Cross-Appellees.

Nos. 14397, 14595, 14597.

United States Court of Appeals Seventh Circuit.

September 28, 1964.

Julius Lucius Echeles, Melvin B. Lewis, Chicago, Ill., for Witherspoon.

Charles R. Markels, Chicago, Ill., Marshall Patner, Chicago, Ill., Joel Sprayregen, Bernard Weisberg, Chicago, Ill., of counsel, amici curiae.

Daniel P. Ward, State's Atty., Elmer Kissane, Asst. State's Atty., Chicago, Ill., William Nellis, Asst. State's Atty., Chicago, Ill., for Ogilvie.

Before SCHNACKENBERG, CASTLE and SWYGERT, Circuit Judges.

CASTLE, Circuit Judge.

William Witherspoon was convicted following a jury trial in the Criminal Court of Cook County, Illinois, on an indictment charging him with murder. At his trial Witherspoon testified to the effect that his shooting of the police officer he killed was accidental. A statement Witherspoon made to police officers and an assistant state's attorney a few hours after the incident but which he refused to sign after it was transcribed was admitted in evidence against him following a preliminary hearing by the trial court on petitioner's motion to suppress it as involuntarily made. This statement or confession contained an admission by the petitioner to the effect that he shot the officer to avoid arrest after the officer fired a shot at him.

The jury, pursuant to the Illinois statute then in effect authorizing the jury to fix the punishment,¹ imposed the death penalty. The state trial court pronounced judgment on the jury's verdict. On appeal the Illinois Supreme Court affirmed. (People v. Witherspoon, 27 Ill. 2d 483, 190 N.E.2d 281).

The instant appeals have their origin in a petition for habeas corpus Witherspoon filed in the District Court. That court dismissed the petition for failure to exhaust state remedies with respect to certain of the grounds upon which petitioner predicated a right to the relief sought, and as to other matters raised therein the petition was denied. Petitioner prosecuted an appeal to this Court (No. 14397) and was granted a stay of proceedings pending disposition of certain of his claims in the State courts. Following denial of his petition for a writ of habeas corpus by the Illinois Supreme Court and that Court's denial of his petition for writ of error from the denial of his post-conviction petition by the Criminal Court of Cook County, petitioner filed an amended habeas corpus petition in the District Court. The habeas corpus proceeding culminated in a second order of the District Court which rejects the petitioner's contentions that a constitutionally impermissible standard was used in determining the voluntary nature of the confession but which adjudges the sentence constitutionally invalid as being imposed under a statutory provision which denied petitioner due process of law and equal protection of the laws. The order directs that petitioner be presented "before the Criminal Court of Cook County for the purpose of sentencing upon the verdict of the jury of guilty heretofore rendered and with consideration of its recommendation of the death penalty, such sentence to follow an opportunity to be extended the parties to make their statements and pleas in mitigation and aggravation". The respondents appealed (No. 14595) and the petitioner cross-appealed (No. 14597).² These two appeals were consolidated and they were argued jointly with the petitioner's appeal in No. 14397. We elect to dispose of them all in one opinion.

The petitioner contends the District Court erred in not awarding him a new trial. In this connection he urges the record establishes that the confession was coerced; that the state court trial judge used a constitutionally impermissible standard in its instruction to the jury concerning the jury's consideration of the content of the confession; and that a statement made by the trial judge was so prejudicial to the defendant as to vitiate the trial. Petitioner also contends the District Court erred in not conducting an independent evidentiary hearing on the issue of the voluntariness of the confession.

In respondents' appeal it is contended the District Court erred in holding the Illinois statute and procedure under which the jury fixed the punishment constitutionally invalid.

There appears to be no dispute that petitioner shot and killed a police officer. A jury found the circumstances of the killing to constitute murder. The Illinois Supreme Court affirmed the conviction in an appeal in which competent counsel representing the petitioner did not assail the trial court's ruling as to the admissibility of the confession — which after a full hearing the trial court had found to be voluntary.

From an examination of the record before us and an evaluation of the contentions of the parties and amicus curiae in the light of a study of the authorities and cases cited and relied upon in the respective briefs we are of the opinion the District Court did not err in rejecting the petitioner's contentions it did reject but did err in holding the Illinois statute requiring the jury to fix the punishment, and the procedure employed under that statute, to infringe the federal constitutional guarantees of due process and equal protection of the laws.

We therefore reverse the judgment order of the District Court and remand the cause with directions that the amended petition be dismissed. We proceed to set forth briefly the reasons for the disposition we make of the appeals but confine our discussion to those issues we deem determinative and the contentions which we believe require comment.

The record discloses the state trial court held a full evidentiary hearing, preliminary to the trial in chief, on the issue of the voluntariness of the statement or confession complained of before it ruled it admissible. The reason for its ruling is expressly set forth. It found the confession to have been voluntary. The issues of credibility presented by the conflicts between the testimony of the petitioner and that of other witnesses were implicitly resolved in the conclusion the court reached and affirmatively expressed. The uncertainties inherent in the New York procedure condemned in Jackson v. Denno, 84 S.Ct. 1774, are not presented by the record here. As pointed out in Appendix A to Justice Black's opinion in Denno (84 S. Ct. 1774) Illinois follows the orthodox rule under which the judge himself solely and finally determines the voluntariness of the confession for the purpose of admissibility and in such case "the judge's conclusions are clearly evident from the record since he either admits the confession into evidence if it is voluntary or rejects it if involuntary. Moreover, his findings upon disputed issues of fact are expressly stated or may be ascertainable from the record." (84 S.Ct. 1774).

In view of this and the complete record which was before it, it was not mandatory that the District Court conduct an independent evidentiary hearing on the issue. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. None of the factors or circumstances which Townsend enumerates (372 U.S. p. 313, 83 S.Ct. 745) as requiring such a hearing are present. And, the record fairly supports the state factual determination.

The instruction complained of is set forth below.³ We perceive no abridgment of any constitutional right of the petitioner in the giving of the instruction. It dealt with the weight to be accorded the confession by the jury — not with the admissibility of the statement as evidence — a matter theretofore resolved by the court following the hearing on the motion to suppress. The truth or falsity of the admissions contained in the statement in the light of the facts and circumstances revealed by other evidence, including testimony relating to what induced the...