Jimmy Clyde Williams v. United States of America, Paul Wayne Howell v. United States

GEWIN, Circuit Judge

(dissenting).

The majority opinion has misconstrued certain facts, failed to notice other important facts and has not made a correct application of the law to the pertinent facts involved.

A careful, cautious and experienced trial judge ruled benevolently and generously with respect to certain confessions involving 3 criminals who are not novices in criminal activities, and who are not strangers to the courtroom or criminal procedure. Out of an abundance of caution the District Judge “leaned backwards” and excluded a written .confession as to the two appellants and their associate (Mitchell, who has not appealed), and excluded an oral confession of Howell made prior to the written confession.

This case is a perfect illustration of the awkward position in which a trial judge is often placed, and the intolerable burden he must bear in undertaking to conduct the trial of criminals who are crafty, ingenious, irresponsible, unprincipled and will resort to any kind of tactics to delay final judgment and avoid the sentence of the law.

On a quiet June evening in 1962 these two appellants accompanied by Mitchell entered a small grocery store in Fort Worth, Texas, carrying guns. A part of the grocery store was used as a United States Post Office Substation. Three employees in the establishment were foi'ced to lie face down in the rear of the store while the 3 criminals looted the cash registers in the store, and the Post Office safe and cash box. As they were leaving, the owner arrived and he too was made to lie down on the floor and his billfold was removed from his pocket. They escaped to California where they were apprehended for other law violations. The Appellant Howell had formerly been convicted of burglary and served a sentence in the state penitentiary at *674 Huntsville, Texas; and Williams had been convicted of numerous burglaries in Florida and had served time in state penitentiaries there.

All 3 of the criminals made confessions at various times. Mitchell and Williams made confessions to state officials in California and freely discussed the crime. They also made oral confessions to Inspector Stokes prior to any alleged inducement. In California, Mitchell and Williams were confined in one place and Howell in another. Before the written confession in question, Howell also made an oral confession to Postal Inspector Stokes. The written confession, which was suppressed and excluded from the evidence, was made to Postal Inspector Stokes by all S of the offenders on July 23 in the State of California. At the time the 3 defendants planned to enter pleas of guilty pursuant to F.R.Crim.P. 20. This plan was abandoned when one of the defendants objected to the use of the word “knowingly” in the information, because as he contended, he did not know a Post Office was located in the grocery store.

After the written confession on July 23, the defendants were returned to Texas for trial in the U. S. District Court for the Northern District of Texas. On August 28, slightly over 5 weeks after the written confession which was suppressed and excluded from evidence, the defendants made an oral confession. This oral confession was made at a different time, a different location, and to a different person. The oral confession was made to Postal Inspector Powell in Fort Worth, Texas. The appellants were fully advised of their rights before they made such oral confession, were told that they were entitled to counsel, that they had a perfect right to remain silent, and that any statement made by them could be used against them. At the time of the oral confession, the “state charges” in California had been removed and the defendants had long since been released from the custody of the State of California. On the motion to suppress it was claimed that the written confession given in California was induced by a promise of Postal Inspector Stokes to have the defendants released from state prosecution in California. Although the defendants had some misgivings about returning to Texas as shown by the quoted statement in the majority opinion, that factor was not involved in any sense when the Postal Inspector talked with them in California. Only California charges were involved at the time; and insofar as the record discloses, the State of Texas never did present any charges against any of the defendants.

The appellants employed skillful counsel who filed a motion to suppress the written confession and “ * * * all other statements given by the defendants since their arrest in California.” A-full day’s hearing was conducted on the motion to suppress the written confession. It was claimed by the defendants that the written confession had been unlawfully induced. The defendants were given complete immunity and testified at length. When the defendants rested on the motion and stated to the court that none of them had any further testimony, District Attorney Hughes, in the highest traditions of the legal profession, and with unusual candor and fairness, voluntarily raised the question that the defendants’ motion went not only to the written confession but to “ * * * all other statements given by the defendants since their arrest in California.” The District Attorney then stated he wished to clarify a matter and inquired of the defendants whether they were resting “ * * * as to every statement they intend to contest under the allegations in this motion.” The District Attorney then informed the defendants and their counsel that there was another oral statement upon which the Government would rely at the trial. He then informed the defendants and their counsel of the oral confession upon which the Government would rely. He stated, “I am not trying to run their business for them, I just want to be sure there is no misunderstanding of what has been covered by this motion * * The court con- *675 eluded that it was his judgment that the allegations of the motion were broad enough “ * * * to cover any kind of statement.” Both the court and the District Attorney made it crystal clear to the defendants and their counsel that the Government would rely on an oral confession made to Inspector Powell in Fort Worth, Texas, on August 28. It was understood by the defendants and their counsel that the court wished to hear any objections the defendants claimed as to the oral confession. As the District Attorney said in open court, “I am trying to keep from misleading anyone, and I am telling them that there is another statement, and if they want to hash it out, we can do it now, since we have taken a day on this business.” The court forthwith explained to the defendants and their counsel that ample time would be given to them to go into the matter, and both the court and the District Attorney expressed the willingness to take whatever time was necessary “ * * * to get to the truth * * * ft

At this stage of the proceedings, defense counsel stated that they did not know of the other statement. The court gave defense counsel ample time and suggested that they confer with the defendants about the oral confession, and counsel did confer with them. Thereafter, the Government placed Inspector Powell on the witness stand and disclosed fully and in minute detail the oral confessions made by the defendants to Inspector Powell. Thereafter, each of the defendants took the witness stand with full immunity, and categorically denied that any of them had made any such statements to Inspector Powell. They did not claim inducement, or that they were misled, coerced, or persuaded to make the oral confession. They relied entirely on a flat denial. After repeated caution by the court, full disclosure by the District Attorney, and a full exploration of all the details and facts, the court ruled that there was no evidence whatever to show any inducement, coercion, duress, or any other fact which would render unlawful the oral confession given to Inspector Powell at Fort Worth on August 28.

After the foregoing proceedings, the case came on for trial. In exact accordance with the previous statements of the District Attorney upon the hearing to suppress, the Government offered the oral confession made to Inspector Powell. The defendants rendered the following objection:

“MR. BIDDLE: Just for the record, I would like to renew our objection to this testimony, the oral conversation while the defendant was under arrest, and after the previous matters in California had already been concluded; just to make the record straight.”

In view of the fact that the written confession had been suppressed, the Government was forbidden to make any reference to it. Only the defendants had the opportunity and the right to undertake a showing that the oral confession made to Inspector Powell on August 28 was induced by the written confession given to Inspector Stokes in California. They elected not to do so. At this time the defendants elected not to take the stand. As the matter was presented to the trial court therefore, Inspector Powell had testified as to a confession which the defendants on the motion to suppress had denied and said they had not made.

When the case was submitted to the jury, the trial court gave a lucid and proper instruction on the requirement of the law that before a confession could be considered, it must be found to have been made voluntarily and free from unlawful coercion and duress. There was no objection to the final charge of the court on the subject.

In effect, the majority opinion improperly substitutes the judgment of this court for that of the trial court, in total disregard of the pertinent facts before the trial judge and the discretion lodged in the trial judge in determining the admissibility of confessions. In effect the majority has found that the trial court *676 should have ruled the confessions to be involuntary as a matter of law. In Lyons v. Oklahoma, (1943) 322 U.S. 596 , 64 S.Ct. 1208 , 88 L.Ed. 1481 , the Supreme Court in affirming the admissibility of an oral confession given only 12 hours after a prior confession which was unlawfully induced, stated the rule as follows:

“* * * Here improper methods were used to obtain a confession, but that confession was not used at the trial. Later, in another place and with different persons present, the accused again told the facts of the crime. Involuntary confessions, of course, may be given either simultaneously with or subsequently to unlawful pressures, force or threats. The question of whether those confessions subsequently given are themselves voluntary depends on the inferences as to the continuing effect of the coercive practices which may fairly be drawn from the surrounding circumstances.”

The proper rule of review as to whether a confession is voluntary was stated by Judge Learned Hand in United States v. Gottfried, 2 Cir. 1948, 165 F.2d 360 :

“Whether a confession is voluntary depends upon the facts that surround it, and the judge’s decision is final as to its competence except in those cases, of which certainly this is not one, in which his finding of fact is plainly untenable.” (Emphasis added.)

The Supreme Court in Lyons, supra, clearly expresses the rule in the following language:

“ * * * But where there is a dispute as to whether the acts which are charged to be coercive actually occurred, or where different inferences may fairly be drawn from admitted facts, the trial judge and the jury are not only in a better position to appraise the truth or falsity of the defendant’s assertions from the demeanor of the witnesses but the legal duty is upon them to make the decision.”

To the same effect is Mangum v. United States, 9 Cir. 1923, 289 F. 213 :

«* * -x- But where on the trial of a criminal case a confession of the defendant is offered in evidence it becomes necessary for the trial court to ascertain and determine as . a preliminary question of fact, whether it was freely and voluntarily made, and whether the previous undue influence, if any, had ceased to operate upon the mind of the defendant. In doing so, the court is necessarily vested with a very large discretion, which will not be disturbed on appeal, unless a clear abuse thereof is shown.” (Emphasis added.)

In my view, both the District Attorney and the trial judge should be commended for the fair, patient, considerate and careful manner in which these defendants were tried and convicted. The case should be affirmed.

I respectfully dissent.