Washington v. Holman, Civ. A. No. 2145-N.

• Decision Date: 06 July 1965
• Docket Number: Civ. A. No. 2145-N.
• Citation: 245 F. Supp. 116
• Parties: Caliph WASHINGTON, Petitioner, v. William C. HOLMAN, as Warden, Kilby Prison, Montgomery, Alabama, Respondent.
• Court: U.S. District Court — Middle District of Alabama

245 F. Supp. 116

Caliph WASHINGTON, Petitioner, v. William C. HOLMAN, as Warden, Kilby Prison, Montgomery, Alabama, Respondent.

Civ. A. No. 2145-N.

United States District Court M. D. Alabama, N. D.

July 6, 1965.

Fred Blanton and Morel Montgomery, Birmingham, Ala., for petitioner.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for respondent.

JOHNSON, District Judge.

The petitioner, Caliph Washington, by leave of this Court, filed with this Court on December 3, 1964, his application for a writ of habeas corpus. Petitioner was, and is, presently being held in custody by William C. Holman, Warden of Kilby Prison, State of Alabama, Montgomery, Alabama, under a judgment made and entered by the Tenth Judicial Circuit of Alabama on December 9, 1959. This judgment was entered upon a conviction by a jury for the offense of murder, and Washington's punishment was fixed by the jury as death.¹ The judgment and sentence was affirmed by the Supreme Court of Alabama on October 4, 1962. Washington v. State, 274 Ala. 386, 148 So.2d 206. Washington has remained in the custody of the Warden of Kilby Prison at Montgomery, Alabama, awaiting the execution of the sentence since its affirmance by the Supreme Court of Alabama. During this time there have been thirteen reprieves, which delayed the execution of the death sentence. A clemency hearing was held on September 8, 1964. Before this hearing there were eight reprieves, two of which were requested by Washington. After the hearing there were five reprieves; none at the request of Washington. Finally, on December 1, 1964, the Governor of the State of Alabama denied clemency and ordered the electrocution of Washington to proceed as last scheduled for 12:01 a. m., Friday, December 4, 1964. Washington, through his counsel, attempted to present to the Supreme Court of Alabama a petition for a stay of execution so that certain federal constitutional questions could be presented to that Court by way of a petition for a writ of error coram nobis. The Supreme Court of Alabama refused the requested stay on December 2, 1964. This Court entered a formal order on December 3, 1964, staying the execution in this case. Upon the filing of the petition with this Court, and after ordering the execution stayed pending a determination by this Court of the issues presented, the Warden was ordered to show cause why a writ of habeas corpus should not be issued. Pursuant to this order and on January 8, 1965, the Attorney General for the State of Alabama representing the respondent Warden in this case, filed his return and answer to the Court's order to show cause.

Upon the pretrial hearing conducted in this case on February 9, 1965, it was stipulated and agreed by and between the parties that Caliph Washington had exhausted the remedies available to him in the courts of the State of Alabama as required by Title 28, § 2254, United States Code, and was entitled to a hearing in this Court on the merits of his case. It was further stipulated by and between the parties that this cause be submitted without the taking of any oral testimony, said submission to be upon the pleadings, including the State court trial record and the transcript of the evidence, and the briefs of the parties. As reflected by the pretrial order of this Court, this submission is upon the following issues:

(1) Whether or not Washington has been subjected to cruel and unusual punishment, prohibited by the Eighth Amendment to the Constitution of the United States, by having been granted thirteen reprieves, such reprieves having been granted on several occasions approximately twenty-four to thirty-six hours prior to the time set for his execution;

(2) Whether or not the reception into evidence of admissions against interest and purported confessions obtained after arrest by police officers at a time when Washington was not represented by counsel, when he had not been offered counsel, had not been informed he could have counsel, and when he did not knowingly waive the assistance of counsel, was a denial of Washington's constitutional rights as guaranteed by the Sixth Amendment and the Fourteenth Amendment to the Constitution of the United States;

(3) Whether or not the reception of testimony from a previous trial into evidence on the second trial was a denial of Washington's right to be confronted by the witness against him and his right of cross-examination to the extent that his constitutional rights, as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States, were violated; and

(4) Whether or not petitioner's constitutional right of due process was violated by the trial court's receiving into evidence a purported confession, or confessions, when the testimony as to the voluntary nature of such confession was heard before the jury.

In the early morning hours of Friday, July 12, 1957, a police officer of the City of Lipscomb, Alabama, received a fatal wound from a bullet fired from his own pistol. On Sunday, July 14, 1957, the defendant, a 17-year-old Negro boy, able "to read and write a little," was arrested by a Mississippi officer in the State of Mississippi. He had the pistol of the deceased in his possession. He was returned to Alabama by an Alabama police officer. The officer who returned Caliph Washington from the State of Mississippi testified on behalf of the State. He testified that before Washington's return to Alabama Washington confessed that he shot the police officer with the officer's pistol, while he, Washington, "was trying to get away from the police." After Washington had been returned to the State of Alabama and while incarcerated prior to indictment and without the benefit of counsel, a written confession was obtained from Washington by "Chief" Wilton H. Hogan, Chief Deputy Clyde Morris, Criminal Investigators W. C. Dean and C. E. Walker, together with the Deputy Coroner, J. W. Thompson. This confession was admitted in evidence upon the trial of the case over objection by Washington's counsel. The objection, as made, was as follows:

"MR. EDWARDS: We object to it as not being shown to be a voluntary, not shown to be in the words of the defendant, not shown that he was advised that he could have had or should have had counsel present at the time that the statement was made; he was not given the benefit of counsel and advice of counsel before requiring him to answer the questions and to make the statement made on that occasion."

The evidence upon this submission further reflects that during the trial of this case the testimony of a witness by the name of Furman Jones was admitted in evidence by reading a transcript of his testimony given upon the former trial. This testimony is to the effect that Washington had admitted to him, while they were riding a bus from Alabama to Mississippi, that he had shot and killed a police officer. This evidence, admitted by reading the transcript of Jones' testimony, was admitted over the objection of Washington's counsel; the basis of this objection was that the defense counsel had learned certain facts which would now enable him to effectively cross-examine the said Furman Jones. The basis for the trial court's admission of the testimony of Furman Jones in this manner was upon the theory that Jones was a nonresident of the State of Alabama and that his sworn testimony taken on the previous trial for the same offense was admissible provided a proper predicate was laid. The proper predicate in such instances, according to the Supreme Court of Alabama, Washington v. State, 274 Ala. 386, 148 So.2d 206, is proper proof of the absence of the witness from the jurisdiction of the court. As related by the Supreme Court, the State laid its predicate in the instant case in the following manner:

"The state offered in evidence a letter from the Chief of Police in Jonesville, South Carolina, to the effect that Furman Jones had been released from the Army and that his mailing address was Box 465, Jonesville, South Carolina. The trial court properly sustained objection to this letter on the ground that it was hearsay. Thereafter, Mr. McAdory, Clerk of the Bessemer Division of the Circuit Court of Jefferson County, took the witness stand and identified the subpoena docket in the case then on trial and verified that Furman Jones' address was listed as Box 465, Jonesville, South Carolina. McAdory further identified an official sheriff return which indicated that a subpoena was sent to Furman Jones at the above address on November 20, 1959. The subpoena docket and sheriff's return were introduced as state exhibits. Thereafter, Mr. Brown, a deputy sheriff of the county, testified that he himself had put the subpoena in an envelope addressed to Jones at the above-stated address."²

For the reasons hereafter appearing, this Court has concluded that the only issues that it is necessary and appropriate to discuss in disposing of this case are issues numbered 2 and 3 as above outlined.

The courts of this country long ago became concerned with practices which often produce confessions and with the convictions which are based upon these confessions. United States v. McNabb, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and the cases cited therein. The courts have recognized and continue to recognize that the mere fact that a confession is made while the accused is in the custody of the police does not in and of itself render the confession inadmissible. Even though the McNabb doctrine has not yet been made applicable to state courts and state procedure, see Edwards v. Holman, 342 F.2d 679 (5th Cir. 1965), the proposition that the due process clause of the Fourteenth Amendment to the Constitution of the United States must be complied with by all courts and investigative agencies is basic in our law. A far-reaching application of this doctrine was made by the Supreme Court in Gideon v. Wainwright, 372 U.S. 335, ...