Young v. Wainwright

• Decision Date: 09 January 1964
• Docket Number: No. 20952.,20952.
• Citation: 326 F.2d 255
• Parties: Willie YOUNG, Calvin Thomas and Harold Simon, Appellants, v. L. L. WAINWRIGHT, Director, Division of Corrections, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

326 F.2d 255 (1964)

Willie YOUNG, Calvin Thomas and Harold Simon, Appellants, v.L. L. WAINWRIGHT, Director, Division of Corrections, et al., Appellees.

No. 20952.

United States Court of Appeals Fifth Circuit.

January 9, 1964.

Francis G. Weller, New Orleans, La., Carl G. Swanson, Jacksonville, Fla., for appellants.

Richard W. Ervin, Atty. Gen., James G. Mahorner, Asst. Atty. Gen., State of Florida, Tallahassee, Fla., for appellees.

Before RIVES, JONES and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

The appellants were convicted in the Circuit Court of Duval County, Florida, of murder in the first degree, and were sentenced to death by electrocution.The judgment and sentence as to each of them was affirmed by the Supreme Court of Florida.Young, et al. v. State of Florida, Fla.1962, 140 So.2d 97.

At the trial a written confession by each was introduced in evidence over the objection of each defendant.The grounds of objection preserved for review their first contention made in the Supreme Court of Florida and ruled on by that Court as follows:

"It is first contended by the appellants that an alleged confession may not be admitted in evidence over defendant\'s objections when his or their constitutional rights have been violated in three particulars, viz.: (1) Arrest without a warrant; (2) failure to advise defendants of their constitutional rights and (3) failure to take them immediately before a committing magistrate.

"In support of their contention on this point, appellants rely on § 901.23, Florida Statutes, F.S.A., which in substance requires that when an arresting officer takes one in custody without a warrant, he shall without unnecessary delay take such person before the nearest or most accessible magistrate.Section 902.01, Florida Statutes, F.S.A., requires said magistrate to advise the accused of his constitutional rights.Appellants contend that failure to comply with these two statutes would render their confessions inadmissible even though voluntarily given.

"To support this contention appellants rely on McNabb v. United States, 318 U.S. 332, 333, 63 S.Ct. 608, 87 L.Ed. 819, having to do with the interpretation of a federal statute similar to § 901.23, Florida Statutes, F.S.A.The McNabb case was later modified or clarified by United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140;Upshaw v. United States, 335 U.S. 410, 69 S. Ct. 170, 93 L.Ed. 100, andMallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L.Ed.2d 1479.One reading all these federal cases may be in doubt as to the exact rule they promulgate, however, he will have no doubt that it is a rule of federal procedure to be followed by the federal courts and has no binding effect on the courts of this or any other state.See alsoSie Dawson v. State, Fla., 139 So.2d 408.

"The federal rule governing the admissibility of confessions has never been approved by the courts of this state.The rule in Florida requires that a judicial confession be proffered to the trial judge in a judicial proceeding and in the absence of the jury to determine whether or not it was freely and voluntarily made.In such a proceeding, the trial judge resolves conflicts in the evidence.If the judge is satisfied that the confession was freely and voluntarily made, such foundation for admission of the confession is presented to the jury who consider it as evidence in the cause.Thomas v. State, Fla.1957, 92 So.2d 621, cert. den.354 U.S. 925, 77 S.Ct. 1389, 1 L.Ed.2d 1440;Sykes v. State, 78 Fla. 167, 82 So. 778.This rule stands despite the fact that the incriminating statements are made while the accused is under arrest, and even though the officer did not warn the accused that what he might say could be used against him.Louette v. State, 152 Fla. 495, 12 So.2d 168;Stoutamire v. State, 133 Fla. 757, 183 So. 316.

"This question was thoroughly considered by this court in the recent case of Leach and Smith v. State, Fla.1961, 132 So.2d 329, opinion by Mr. Justice Thornal, wherein the distinction between judicial and extra-judicial confessions was clearly defined.In that casewe held that when confessions are made to law enforcement officers and not in a judicial proceeding, it is not essential that the officer first warn the accused that anything he may say can be used against him.Phillips v. State, 88 Fla. 117, 101 So. 204;Cullaro v. State, Fla.App.1957, 97 So.2d 40.The Leach and Smith case disposes of the challenge to the confessions in this case contrary to the contention of appellants.Finley v. State, 153 Fla. 394, 14 So.2d 844;Singer v. State, Fla.1959, 109 So.2d 7.In the case at barwe are concerned with extra-judicial confessions made voluntarily to law enforcement officers immediately after the defendants\' arrest.We held in this case that the McNabb rule was not essential to due process.

"Appellants do not contend that the trial court did not have before him sufficient, competent, substantial evidence from which to find that the confessions were given freely and voluntarily, in the absence of coercion, rewards, threats, force or violence.Their contention is that this court should abandon its present rule and adopt the federal rule as stated in the McNabb and other cases.They offer no cogent reason for receding from what has long been the rule in this state.

"After all is said, the test as to the verity of a confession is whether or not it was freely and voluntarily made.Did it come from the free will of the accused or was he compelled by unlawful means to make the confession?This question having been ruled on by the trial court in the absence of the jury, the jury having had it seasonably submitted to them under appropriate instructions from the court and both the court and the jury having before them competent, substantial evidence upon which they could find that appellants had voluntarily confessed, we find no reason to reverse them and by so doing, recede from the present rule governing the question."Young, et al. v. State of Florida, supra, 140 So.2d pp. 98, 99

The execution of the appellants was set for 8:30 A.M., Monday, October 7, 1963.At 7:45 P.M. on Saturday, October 5, an attorney presented to Honorable Bryan Simpson, Chief Judge of the United States District Court for the Middle District of Florida, their petition for the writ of habeas corpus alleging as the ground therefor simply:

"1.That the State Courts did not follow procedural due process of law as enumerated under the due process clause of the State and Federal Constitutions."

Judge Simpson entered an order staying the execution of the appellants and setting the hearing on the petition for 2:00 P.M., Monday, October 7, 1963.At that hearing the petitioners' then attorney filed an amended petition for habeas corpus in which it was alleged:

"* * * That the illegality of their judgment and sentence is in the following particulars:

"A.That the State Courts did not follow procedural due process of law as enumerated under the Due Process of Law Clause of the State and Federal Constitutions in the following particulars:

"1.That your petitioners when taken into custody by the Police Department and Police Officers of the City of Jacksonville held and maintained the prisoners in custody without giving them the right to obtain counsel and kept said prisoners, your petitioners herein, in custody until after they had extracted from said petitioners a confession which said confession was used in trial against each of the defendants and as the basis for bringing the charge of Murder in the First Degree against your petitioners; that during the trial of the issues herein the Police Officers admitted on the witness stand that they did not advise the defendants of their right to have counsel and further admitted on the witness stand that when they had taken said petitioners into custody the officers did not take said prisoners to the nearest committing magistrate as is required by FLORIDA STATUTE 901.23 F.S.A. and further did not advise defendants of FLORIDA STATUTE 902.01 F.S. A. of the charge against them and of their right to aid of counsel during preliminary examination.That by virtue of the aforesaid acts of the Police Officers the rights of your petitioners were denied as provided under the Due Process of Law Clause of the State and Federal Constitutions."

No evidence was introduced at the hearing.The respondents, appellees, produced a copy of the transcript of record on the appeal to the Supreme Court of Florida, and the following colloquy ensued:

"MR. MAHORNER Respondents\' Attorney:

"* * * But here I have the Appellate record.We feel that the evidence is ample from which the finding that these confessions were voluntary could have been made by the State Court.I can leave this record here, as well as Appellants\' Brief, wherein the Court can see that he did not raise an issue of voluntariness but that if —

"THE COURT:

"Well, I think that\'s conceded.

"MR. SWANSON Attorney for Petioners:

"That is conceded.

"THE COURT:

"By Mr. Swanson.I don\'t believe we have to study it.I\'m glad to have it here. * * *"

Otherwise, the hearing before Judge Simpson consisted simply of arguments of counsel and of colloquies between the Court and counsel.

Judge Simpson denied the petition for the writ of habeas corpus, stating:

"By the amended petition and by the oral argument before the Court, the alleged illegality of the State detention of the Petitioners is made clear.The sole ground relied upon by the Petitioners for the issuance of the writ is the assertion that the State Courts have violated due process by refusing to follow the exclusionary rule with respect to confessions first enunciated in McNabb v. U. S., 318 U.S. 33263 S.Ct. 608, 87 L.Ed. 819, and developed in the Mitchell, Upshaw, and Mallory cases.

"It is stipulated by counsel for the respective parties that no claim was urged either in the trial court or in the Supreme Court of Florida upon

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