Waddy v. Heer

• Decision Date: 10 October 1967
• Docket Number: No. 16919.,16919.
• Citation: 383 F.2d 789
• Parties: James Milton WADDY and James Barrow Ransom, Petitioners-Appellants, v. Henry HEER, Warden, Tennessee State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

383 F.2d 789 (1967)

James Milton WADDY and James Barrow Ransom, Petitioners-Appellants, v. Henry HEER, Warden, Tennessee State Penitentiary, Respondent-Appellee.

No. 16919.

United States Court of Appeals Sixth Circuit.

October 10, 1967.

Karl P. Warden (Court Appointed), Nashville, Tenn., for appellants.

Ed R. Davies, Nashville Tenn., for appellee, Henry C. Foutch, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., on brief, George F. McCanless, Atty. Gen., State of Tennessee, Nashville, Tenn., of counsel.

Before WEICK, Chief Judge, and PHILLIPS and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from a judgment of the District Court denying and dismissing petitions for writs of habeas corpus. Petitioners contend that their pleas of guilty in the criminal court of the Tenth Judicial Circuit at Nashville, Tennessee, were improperly induced by physical coercion by the police and by the promise of the trial judge that he would give them specific less-than-maximum sentences. They also contend that their pleas may not stand because their voluntariness was not determined by judicial inquiry in open court before acceptance. They further attack their pleas because they were denied access to counsel by the police during the interval between their arrest and arraignment and because they were without counsel at the preliminary hearing where they first offered pleas of guilty. Finally, they contend that the designation of their race as Negro on each indictment returned against them vitiated the proceedings.

The facts are as follows. A white Nashville police officer had been shot on March 23, 1960 and petitioner Waddy was advised by his aunt that police officers were looking for him. He went to police headquarters where he surrendered. He was taken into an interrogation room where he contends he was not advised of his rights, was refused permission to call his aunt or an attorney and was beaten by police officers until he confessed orally not only to the shooting but also to several unrelated burglaries and armed robberies. He subsequently signed a formal confession to the offense of assault with intent to commit murder in the first degree and to the other crimes.

Petitioner Ransom was arrested on the same morning with three other persons who were also charged with shooting the officer. Ransom contends that he and the other persons arrested with him were also beaten until they confessed orally and subsequently signed formal confessions which had been prepared for them.

The next morning, both appellants, still without counsel, were taken to a preliminary hearing where each entered a guilty plea to the charge of assault with intent to commit murder in the first degree and to the several burglaries and robberies. The proceedings at the preliminary hearing, including the pleas, were not introduced or referred to at the hearing when sentence was determined.

Appellants and the other three persons were remanded to jail and on March 28 and 29, were indicted by the grand jury which accused them of three charges of third degree burglary, five charges of armed robbery, two charges of third degree burglary and attempted larceny (one not involving appellant Waddy), and assault with intent to commit murder in the first degree.

In the interval between the preliminary hearing and indictment, appellants retained counsel to represent them at the trial. According to petitioner Waddy, counsel advised them that because of their signed statements and guilty pleas at the preliminary hearing, they "had forfeited all our rights for a trial because of the fact that those confessions would be presented against us at our trial." Counsel's testimony confirmed this:

Of course, I explained to them that an officer was shot and I says, and I told them this, I told them more, if they are all mad at us, and if we don\'t go along with it, they are going to get us in most of them anyway with these confessions and everyone of them will be consecutive.

On May 18, the day set for trial, defense counsel discussed the cases with the prosecuting attorney in an attempt to negotiate favorable consequences to a plea of guilty. Following this discussion, the trial judge took the defendants and defense counsel into a room and, according to defense counsel, a sentence of from 23 to 41 years was discussed. Appellants deny having heard any mention of 41 years. On this point, appellant Waddy testified:

Defense counsel told them * * * so he had talked to the judge, Judge Weimar, prosecuting attorney Howard Butler, and they had agreed if we would enter a plea of guilty that we would receive a maximum sentence of 23 years and maximum no more * *. And he said due to circumstances surrounding that we had signed this confession, that it was white person that we committed the crimes upon, that prejudices that was in the court, that he felt he didn\'t advise us and I don\'t think any other lawyer would advise us to fight it in other words * * *

Q. Did you agree to accept guilty pleas?

A. We agreed to accept the 23 years on our attorney\'s advice.

Defense counsel testified on the question of appellant's understanding of the proposed disposition, "So, they asked me some questions about it, and I tried to make them understand it. I understood it but I couldn't be sure, absolutely sure, sir, that all of them understood it. Certainly some of them did."

On the issue of Judge Weimar's participation, defense counsel testified,

He took us in a room. He has got a scale that shows what you will serve. What it amounts to. Time off for good behavior. I don\'t remember what it was and the judge didn\'t either. I don\'t suppose but anyway he had a scale. He told them that I can\'t remember exactly the number. How, the sentences were 23 to 41 years, I know that because I have refreshed my memory but he told them what it would be. And I understood that perfectly.

Following the discussion in the judge's office, the cases were called in court and the judge read the indictment and defense counsel entered a plea of guilty for the defendants. No examination to determine the voluntariness of the plea was conducted by the trial judge. Defense counsel testified on this point:

Q. Do you remember sic would be any questioning back and forth in open court between the judge.

* * * * * *

A. (interposing) That is done now but it wasn\'t done * * * now General Butler can correct me * * * I don\'t think that was over done. Now they will stop each one and say is that your plea? Is that your plea? Is that your plea, all that. I don\'t think that was done.

Under Tennessee practice, any recommendation by the prosecutor, if accepted by the court, is submitted to the jury which then fixes sentence. Accordingly, a minimum of proof was presented to the jury which then returned sentences as recommended by the prosecutor. At the evidentiary hearing, the only testimony on what occurred at this point was that of appellant Waddy who testified as follows:

Q. Didn\'t the foreman of the jury stand up and tell you what you had received?

A. No, sir —

Q. Didn\'t he pronounce sentence to the court?

A. No, sir, the jury just raised their hands in some manner okayed it. The point I raised in my petition is, that we didn\'t know how much time we had. Our lawyer told us that no matter what it said, you only have 23 years.

Q. James, let me ask you this, are you saying that the minutes of the state court are in error in any way.

A. Yes, sir, I am contending that our time was not fixed in the Correction Department because that is the only place I heard the 23 to 41 years. That is the point I am trying to get over because prior to that we were never informed.

No stenographic minutes of these proceedings wre introduced at the evidentiary hearing.

The District Judge characterized the participation of the trial judge in this language.

THE COURT: Well, of course, the testimony here which I thought was fantastic until Mr. Rutherford confirmed it, testimony of the petitioner that Judge Weimar told them the sentence.

Nevertheless, in his order denying the petition for habeas corpus, he found that petitioners failed to carry the burden of showing that the pleas of guilty entered upon the advice and recommendations of their privately retained counsel were involuntary or entered unknowingly and without an understanding of their rights. He did not make specific findings or conclusions of law concerning petitioners' other contentions.

Despite the vividness of petitioners' testimony in support of their contention of physical coercion, it was uncorroborated and there was testimony of other witnesses which refuted their version. Petitioner Waddy's aunt who visited him in jail the day following his arrest observed no evidence of beating. The assistant city attorney who was present on the day of arrest when the confession was dictated observed no evidence of violence and heard no complaints of physical abuse from either petitioner. An attorney who was employed by Ransom's family visited him in jail after the preliminary hearing and observed that his client had a skinned ankle where he said an officer kicked him. Although he recalls complaints of a black eye, he has no recollection of having seen it. He had photographs taken of Ransom and turned them over to the defense counsel who later negotiated the pleas. Defense counsel who received these photographs testified about the claimed beating,

I had no proof of it, no sir, except their word. But they did tell me at the time that, of course, that was common practice in those days. It wasn\'t unusual for prisoners to be beaten in those days.

The court found that petitioners failed to sustain their burden on this point. A petitioner in a habeas corpus proceeding must prove his allegations by a preponderance of the evidence. Fiedler v. Shuttleworth, 153 F.2d 999 (6th Cir. 1946); Gray v. Johnson, 354 F.2d 986 (6th Cir. 1965). Findings of fact of the...