Wilson v. Sigler

• Decision Date: 20 January 1961
• Docket Number: No. 16687.,16687.
• Citation: 285 F.2d 372
• Parties: Luther Wesley WILSON, Petitioner, v. Maurice H. SIGLER, Warden, Nebraska State Penitentiary, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F.2d 372 (1961)

Luther Wesley WILSON, Petitioner, v. Maurice H. SIGLER, Warden, Nebraska State Penitentiary, Respondent.

No. 16687.

United States Court of Appeals Eighth Circuit.

January 20, 1961.

Hal W. Bauer, Lincoln, Neb., for petitioner.

C. S. Brubaker, Asst. Atty. Gen. of Nebraska, for respondent.

Before JOHNSEN, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

JOHNSEN, Chief Judge.

Petitioner is under conviction and sentence of death by the state courts of Nebraska for the crime of murder. The opinion of the Nebraska Supreme Court, reviewing the trial proceedings, holding them to be without violation of due process or other error of substance, and making affirmance of the judgment, is reported in Wilson v. State, 170 Neb. 494, 103 N.W.2d 258. A petition for writ of certiorari to that decision was denied by the United States Supreme Court in Wilson v. State, 81 S.Ct. 178.

Thereafter, petitioner sought and was granted leave to file a forma-pauperis petition for a writ of habeas corpus in the United States District Court for the District of Nebraska. Order to show cause was issued against the warden of the Nebraska State Penitentiary, and response thereto was duly made by him. The court then heard oral argument in the matter to satisfy itself whether any question of deprivation or denial of due process could be said debatably to exist as a basis for granting petitioner a trial to make proof of the facts alleged and to establish their significance in relation to the state-court result.

The petition had incorporated in the application for a writ, by reference, the transcript of the trial proceedings and all the briefs, which had been before the Supreme Court, and these were duly examined by the District Court. Even, however, if they had not thus been expressly made a part of the petition, they would, of course, still have been entitled to be judicially noticed by the court in determining whether there existed any right legally to a hearing on the merits of the application. Starkweather v. Greenholtz, 8 Cir., 267 F.2d 858, 859.

The District Court, after consideration of the petition on this basis, was of the opinion that the matters charged therein could not be regarded as presenting or involving any question of deprivation or denial of due process by the State of Nebraska in the proceedings which had been afforded petitioner. The court accordingly denied petitioner's application for a writ; refused to issue a certificate of probable cause under 28 U.S. C.A. § 2253, as a basis for him to take an appeal; and overruled his motion for a stay of execution.

Petitioner thereupon filed in this Court a challenge to the trial court's denial of a certificate of probable cause; an application to have such a certificate issued by a judge of this Court; and a motion to have us stay the date of his execution. To prevent any avoidable delay, we set the challenge, the application, and the motion of petitioner for immediate hearing. After full opportunity to counsel for both parties to be heard, and on careful scrutiny of the record of the state court proceedings, we were firmly of the view that the trial court's denial of a certificate of probable cause could not be said to be arbitrary or unwarranted in the circumstances; that a certificate of probable cause ought not to be issued in the situation by a judge of this Court as a basis for enabling petitioner to take an appeal from the denial of his application for a writ; and that his motion for a stay of his execution date should be overruled. Further, in order not to leave ourselves with any responsibility for a delay, we made announcement of our decision on the same day of the hearing, with a reservation of the right to file this opinion in enlightenment of our action.

For purposes of our consideration of petitioner's challenge, application and motion, his counsel limited the contention of deprivation and denial of due process before us to the question of the State's right to have used, and the court's right to have received in evidence, the oral confessions of guilt which petitioner had made.

The petition for habeas corpus alleged that petitioner was arrested on October 11, 1958, and was held incommunicado by the police until October 24th, without any warrant having been issued for his arrest; without his being taken before a magistrate or a court during that period; without his having been informed of his right to secure the services of an attorney or having been accorded the opportunity to obtain one; with a lawyer retained by his family having been refused the right to consult with petitioner; with petitioner having been "forced to disrobe and repeatedly questioned, day and night, by the prosecutor and police in relays until he became fatigued, confused, physically ill and afraid"; and with the oral confessions which he had made on October 23rd and 24th thus not having been free and voluntary acts on his part.

In relation to whether petitioner ought to have been granted a trial on his assertions that not merely were the allegations made by him true, but that there was a deprivation and denial of due process in respect to the facts thereof in his trial proceedings, it should first be noted that the state court record shows the following matters, which were emphasized in the opinion of the Nebraska Supreme Court, 103 N.W.2d at pages 268-269:

"The evidence that accused admitted to the captain of detectives on October 23, 1958, that he participated in the crime committed at the market and that he shot Rasmussen was offered and admitted in evidence without any objection to its admission. The captain of detectives testified that there were no promises or threats made to or against the accused at that time, * * *.

"Likewise the evidence that accused told a police officer on October 23, 1958, that he, the accused, disposed of the gun he had by throwing it from the Douglas Street Bridge into the Missouri River was without objection admitted at the trial. That statement was a part of the same conversation which the captain of detectives testified accused participated in voluntarily and of his own will and volition on October 23, 1958, and that no promises or threats were made to or against the accused. The accused solicited an opportunity to talk with the deputy county attorney of Douglas County and pursuant thereto there was a conversation between them on October 24, 1958, with no other person present. There was evidence that when that conversation was ended John Gallagher and Jack M. Fitch entered the room and accused then admitted that he had told the deputy county attorney when he and the accused were alone that accused did the shooting at Aronson\'s, that he used a .32, and that he threw it in the water about the middle of the bridge. There was no objection to the evidence on the ground that it was improperly or illegally obtained and there could not have been effectively because the information was furnished at a conference solicited by accused and had to satisfy his desire. A motion of accused to strike the evidence concerning admissions made by him as above detailed after the whole evidence of the three witnesses had been concluded was properly denied. * * * A showing of all that occurred immediately before and at the time of the making of a confession is sufficient foundation for its admission if such proof shows it to have been freely and voluntarily made and excludes the hypothesis of improper inducements and threats. Parker v. State, 164 Neb. 614, 83 N.W.2d 347; Olney v. State, 169 Neb. 717, 100 N.W.2d 838. The record in this case satisfies the requirement of the doctrine of those decisions.

"The claim of accused

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