Petition for A Writ of Certiorari — General Motors Corp. v. Devex Corp.

IN THE

Supreme Court of the TMnited States

Y

en Sn 1150

OCTOBER TERM, 1973

RONNIE WEEDON, Petitioner

Against

THE STATE OF TEXAS, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

MARVIN O. TEAGUE

Attorney for Petitioner

999 State National Building

412 Main Street

Houston, Texas 77002

222-1728

ee Ser reas ae An EIS

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

Page

Opinion Below .......-.- secs sree rece erence eter eees 1

Jurisdiction .........ceceee cece eens ee ceceereceececes 2

Questions Presented ......--.s esses e reece reeset ee reeees 2

Statutes and Constitutional Provisions Involved ......---- 2

Statement of Facts ........ccceccccceseccccccnccccsces 3

Summary of the Facts .......--e+eseeeeee seer eee eeees 3

Reasons for Granting the Writ of Certiorari ........----- 12

Ce i pacha ss esa vek vente eveed borer nebere hss 19

Certificate of Proof of Service ......-----+eee eee ee eres 19

APPENDIX “A”

Weedon v. State (Tex. Cr. App. 1973), 501 S.W.2d 336 21

APPENDIX “B”

Petitioner's Trial Counsel's Objections and Request for

a Hearing on the Admissibility of the oral statement-

confession of Petitioner .........--eeseeeee eee eeeees 29

APPENDIX “C”

Constitution of the United States, Fifth Amendment... 40

APPENDIX “D”

Constitution of the United States, Sixth Amendment. . . 41

APPENDIX “E”

Constitution of the United States, Fourteenth Amend-

NS POLO ETE FECT OCEE TEST he 42

LIST OF AUTHORITIES

CASES Page

Davis v. Beto, 423 F.2d 633 (Sth Cir. 1970) .......----- 15

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d

QOB (1964) on ccvcccncecccccsssccccnenscesesscccnes 12,16, 17

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966) .... ccc eccccccccscccccrecsesccccesceces 12, 16,17

Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.

Sh F008 CIGGR) cn ve cs nvecsncresevessesseeesecnreces» 16

Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d

SUL (19G9) .ncncccvccencvecsccenscncsevssnsscsosnes 18

IT

CASES

People v. Paulin (New York), 25 N.Y¥.2d 445, 255 N.E.2d

eC ei eer rorree en

People v. Rodney P. (New York C.A.), 233 N.E.2d 255

PROUT E bee Nen sek RON Ges ee VERS OREGON SNES ASESEE SDSS

Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31

RNR ate ate ee nae

Procunier v. Atchley, 91 S.Ct. 485, 400 U.S. 466, 27 L.Ed.

ee MUTED 5 nina acceken cre nce onaeenueesents48

Rosario v. Guam, 391 F.2d 869 (9th Cir. 1968) ..........

Sigler v. Parker, 396 U.S. 482, 90 S.Ct. 667, 24 L.Ed.2d 672

SOE: Soedusueaasions Mane chs SEOTEN EERE ERT Eos e ree

Swenson v. Stidham, 404 U.S. 1058, 92 S.Ct. 732, 30 L.Ed.

2d 745 (1972), 405 U.S. 913, 30 L.Ed.2d 782, 92 S.Ct.

OSE (9S Sat. SOS) CIGIS Ye vv cows ne ec eee ne bees.

Turner v. United States, 387 F.2d 333 (5th Cir. 1968)....

United States v. Inman, 352 F.2d 954 (4th Cir. 1965).....

United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968)....

United States v. Morado, 454 F.2d 167 (5th Cir. 1972)....

Weedon v. State (Tex. Cr. App. 1973), 501 S.W.2d 336....

Windsor v. United States, 389 F.2d 530 (5th Cir. 1968)...

CONSTITUTION AND STATUTES

Rules of the Supreme Court:

8 St er er eee ne eee yy ye eee ee

United States Constitution:

ERIE TIENT Cocco cnc oie 8 ais wreierok aa hos eee ciate

LE SEIMEI crak cis act cir tie a cre th pra eee ee

POUT) TICINO. go ee co vik kc ee on oe oe See eee

Page

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18

16

16

18

16

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IN THE

Supreme Court of the United States

NO

OCTOBER TERM, 1973

RONNIE WEEDON, Petitioner

Against

THE STATE OF TEXAS, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

The Petitioner, Ronnie Weedon, prays that a writ of

certiorari be issued to review the judgment of the Court

of Criminal Appeals of the State of Texas of November

7, 1973.

OPINION BELOW

Petitioner’s conviction and sentence of ten (10) years

confinement in the Texas Department of Corrections, as-

sessed in the 99th Judicial District Court of Lubbock

2

County, Texas, was, on November 7, 1973, affirmed by

the Court of Criminal Appeals of the State of Texas.

On December 5, 1973, Petitioner's Motion for Leave to

File Appellant's Motion for Rehearing was denied with-

out written order by the Court of Criminal Appeals of

the State of Texas. See 501 S.W.2d 336. Petitioner has

exhausted all available State remedies for his appeal.

(See Appendix “A”).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. Sec. 1257 (3) and Rule 19 (1), Revised Rules

of the Supreme Court of the United States of America.

QUESTIONS PRESENTED

Whether Petitioner was deprived of due process of

law by failure of the trial court to conduct a Jackson

v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d

908, (1964), type hearing, out of the jury’s presence,

on the admissibility of the Petitioner's Oral State-

ment-Confession when same did not comply with

Miranda vs. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966)?

Whether Petitioner was deprived of due process of

law by the trial court admitting Petitioner’s Oral

Statement-Confession in to evidence when same was

in violation of Miranda vs. Arizona, supra, and

Orozco vs. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22

L.Ed.2d 311 (1969)?

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Constitutional provisions and statutes involved are

set out below. (Appendices “C”, “D”, and “E”, pp. 40-42).

3

STATEMENT OF FACTS

Petitioner was tried before a Jury on a plea of not

guilty for the alleged criminal offense of murder with

malice aforethought. found guilty, and his punishment was

assessed by the same jury at ten (10) years confinement

in the Texas Department of Corrections.

The State of Texas did not have any live witnesses to

the killing; her case being presented from evidentiary find-

ings at the scene and, most important, by statements

Petitioner made to law enforcement officials who came to

the scene to investigate the cause of the killings.

SUMMARY OF FACTS

As pertains to the questions Petitioner raises, the fol-

lowing pertinent facts are presented.

JAMES SINGLETON, Texas Ranger Investigator, testified

he received a telephone call from Bill Neely (133), of the

Sheriff's Office around 6:30 O'Clock A.M. (64), arrived

at Appellant’s residence at approximately 6:50 O'Clock

A.M. (65). Other police officers were already at the scene.

He saw and spoke to Appellant after entering the premises.

(117). After this, Singleton then saw the other police

officers as well as Perry and two dead bodies on the

floor in one of the rooms. He recognized the body of

McGann. He then learned the other body was Meshell.

At this time, Appellant approached Singleton. (119).

Over objection and without being given the opportunity

by the Learned Trial Judge to conduct a “Jackson v.

Denno” type hearing, (121). Singleton testified first on

a bill of exception out of the jury’s presence that Appel-

lant “explained to me the circumstances that occurred

prior to our arrival.” The Appellant related to Singleton

that:

4

“He had shot and killed Mr. McGann and possibly

used both weapons.” (122, 138)

Singleton testified he gave Appellant on/y the following

warning:

“He didn’t have to make a statement and he could

have an attorney present.” (123, 128, 136, 137)

The Learned Trial Judge then overruled another objec-

tion of Appellant. This action of His Honor was tanta-

mount to permitting Singleton to relate to the jury the

conversation he had with Appellant. “I believe in the

state of the record at this time that the Court will re-

spectfully overrule your objection.” (124) (128) (137).

The Learned Trial Judge permitted Appellant’s counsel

“to object to it now ... and not object to it while he is

on the stand” as “It will be all right for you to make it

as a part of your bill without making further objections

to it if you want.” (124). A further attempt, after the

objection was overruled, to take the witness on voir dire

was again made and again overruled. (126).

Singleton related to the jury that Appellant approached

him and told him that “I would like to talk to you” and he

“desired this to be in private.” (127). The two then

stepped into another room. It was after the Appellant told

Singleton “that he could clear this matter up and say

specifically what had happened,” that Singleton then gave

Appellant the deficient oral “Miranda” warning. See

supra and see also pp. 128 of the Statement of Facts.

Even though Appellant asked Singleton “would I need one

[an attorney]?”, and that he had attempted to contact two

(2) attorneys, one in Lubbock and one in Houston,

Singleton, nevertheless, permitted Appellant, without first

5

obtaining a waiver of his right to counsel, to state that

“he had shot and killed George McGann, possibly with

both guns.” At this time Singleton left the room.

On cross examination, it was developed that even

though the Appellant was neither in custody, under in-

vestigation nor suspected of anything, the purpose of

giving a legal warning was “Nothing other than normal

procedure.” (137). However, he varied from his “normal

procedure” when he talked with the witnesses Frances

Keith and Marshall Perry in that he did not warn them

when he spoke to them. (138). As to the conversation

between Appellant and Singleton, Appellant told him:

“That during his excitement that he had shot and

killed George McGann and had possibly used both

guns.” (138).

Singleton related that Appellant told him that McGann,

after shooting Meshell, “threatened Mr. Perry and Mr.

Weeden and possibly Miss Golden, if she was still in the

room.” (139). The threat encompassed pointing a gun

at them. (140). “As I recall he [McGann] told them

[Perry, Appellant and Miss Golden] that he would have

to dump the body somewhere and to get all their stuff

gathered up” and “he [McGann] also told him [Weeden]

that he wasn’t going to leave any witnesses . . .” (139).

Appellant also related to Singleton that:

“. . . he examined the body of Mike Meshell. [after

McGann had shot Meshell] and McGann was hold-

ing the gun. Mr. Weeden raised up from the body

and as he did he saw a .45 laying on the counter

top near the body, where Mr. Meshell was laying.”

That as he [Weeden] turned and faced George

McGann he reached and got the .45 and stuck it

6

either in his rear pocket or up in the small of his

back under his trouser belt, and at that time he

[Weeden] approached McGann in some type of

conversation more or less pleading with him not to

shoot the other people in the house . . . including

himself . . . but that McGann was threatening to kill

everybody in the house.” (141).

Singleton was not told nor did he know that McGann

was questioned previously regarding “a bunch of crimes

in Dallas and Ft. Worth that was Mafia connected.” (142-

143). He was aware of two or three murder investigations

involving McGann. Appellant also related to him that:

“He [Appellant] said that he did get into a scuffle

in an effort to obtain the weapon from Mr. McGann.

(146).

This information, related to Singleton by Appellant,

was also placed in Singleton’s offense report as an official

report of the episode. He also did not recall telling the

Assistant District Attorney that McGann “had killed

twelve people and Mike Meshell was his thirteenth.”

(171). He further related in his offense report that Ap-

pellant told him.

Subject Weeden advised the writer that he desired

to talk with him in private to clear up the matter,

stepping into an adjacent utility room in the kitchen,

stating that he desired to tell me specifically what

had occurred at that time and the writer advised

Weeden of his constitutional rights and he asked if

he would need an attorney and I asked if he had

called an attorney. Weeden said that he had con-

tacted his other attorney Bill Broom, in Houston

relating the prior events. Weeden stated that he had

shot and killed McGann during a fight and he thought

7

that he shot him with both weapons during his ex-

citement as a result of McGann shooting subject

Meshell (175-176).

Weeden also told the writer that Meshell and

McGann came to his house sometime after midnight

(179), that they had several drinks and both of

them were very intoxicated and were spilling drinks.

Weeden suggested that they go to bed, and that

Meshell went to bed in the northeast bedroom and

that Weeden had to help him undress because he

was intoxicated and that he assisted McGann to the

middle or east bedroom where McGann took off his

sweater, shirt, and pants. Weeden noticed that

McGann pulled a .38 caliber snub nose revolver from

the rear of his pants or belt and laid it near the

headboard. (180). A short time later Meshell began

to create a disturbance. knocking the door in the

bedroom, using profanity, coming into the den area

where Weeden was then sitting in a lounge chair,

going to the bar to get another drink and knocking

over bottles and glasses, and insulting Frances with

a remark. Then at this time Weeden took exception

to his action and told him that they were going to

have to get this straightened out by going outside,

and Weeden pulled off his black undershirt and

threw it on the couch and they went out the back

kitchen door area where they settled their differences.

(182). As Weeden stepped out the back door he

struck Meshell and some blood came from the wound

[see Judy Duke’s testimony supra] dripped down

on the door and what not. and Meshell reached up

and wiped his head with his hand and smeared the

blood on the door facing with his hand. Weeden

whipped him and came back into the house and

Meshell was patting Weeden and putting his arm

around Weeden and stating that they were friends.

About fifteen minutes later the telephone rang and

Weeden thought that he answered the telephone.

8

Mike talked for a while although Weeden did not

know what about. Mike stated that George is here

and whoever he was talking to apparently wanted to

talk to George. Someone awoke George McGann,

he came into the room fully dressed with a revolver

tucked under his belt in front, sat on the stool and

talked to the party on the telephone. Suddenly he

drew his pistol and fired two times into Meshell

standing by the kitchen bar and then aimed the pistol

at us, stating I can’t leave any witnesses, telling

Marshall Perry who was seated in the northwest

corner of the den not to move; further stating to

Weeden, let’s get it all together. He began to back

up east, toward the hall and bedroom and at this

time Weeden obtained a .45 caliber pistol from the

area of Meshell’s body, putting the pistol in his rear

pocket or under his belt in the small of his back.

Weeden began to plead with McGann not to kill

them and asked him what's the matter. Weeden

walked with him up close across the room, and when

they got near the hall and den doorway, Weeden

began to struggle with McGann for his pistol at

which time the gun discharged several times and

Weeden thought that he shot him with the .45.

Weeden thought McGann had told Frances to go to

the bedroom when this took place. Weeden then

called his attorney, called the Department of Public

Safety and the Sheriff's Office by telephone. (185-

186). Meshell was standing at the end of the bar

and McGann was talking the second time. and after

Meshell had talked, pulled his pistol and fired two

times while holding the phone in his left hand.

Weeden moved off the stool to check Meshell on

the floor and he was still breathing. Weeden said,

“he’s dying.” let’s get a doctor. McGann said we

are going to lay the body somewhere, I can't have

any witnesses. McGann pointed his gun at Perry

and told him not to move. At this time Weeden

recalled raising up and seeing a .45 pistol that

belonged to Meshell that was laying on the lower

9

portion of the bar, split level, near the bottom.

Weeden put it in his belt or rear pocket and began

to talk to McGann as he backed across the room

prior to jumping him in the hall area or the door of

his bedroom with the gun going off (4) several

times, he didn’t know how. (199-201).

Singleton testified he talked with Appellant on three

different occasions; once at the house; once at the District

Attorney’s Office, and then again at his home. (192).

> OF OF OFPOPOPO POPO

He told you the same things all three times?

Yes, sir.

You checked it out and proved it to be true?

Later I checked with the party that made the

phone call, yes, sir. (192).

You verified all of it, didn’t you?

Yes, sir.

Everything that he told you was true, wasn’t it?

As far as I know, yes, sir.

You certainly couldn't disprove it, could you?

No, sir.

It was just exactly the way that he said it hap-

pened?

Yes, sir.

Did you file charges against Ronnie Weeden for

Murder?

No, sir.

Because you have verified everything that he said

was true?

I didn’t file any charges against him, no, sir.

(206-207).

The witness Keith, also interviewed by Singleton, which

interview was placed in his offense report, told him:

Information same as above until telephone rang.

Frances Weeden stated that Ronnie Weeden answered

eth GR SS

10

the telephone. It was Robbie asking for McGann

and Weeden handed me the phone. Frances talked

to Robbie for a second and handed the phone back

to Weeden and went into the bedroom to wake up

McGann. His pants were on the floor and Frances

handed him his glasses from the floor and he dressed

and came into the den for the phone call. And

Frances thought that she had to wake him up two

times and she recalled turning the light on and

closing the door when she came out of the bedroom.

McGann had a pistol in his belt, he talked, Meshell

talked and McGann talked. McGann told Frances

to go to the bedroom and she left and did not see

the shooting but heard two shots. She stayed in the

bedroom with the door locked until Weeden came.

(199).

As to the missing two shots, we find the following:

He [McGann] told me [Frances] to go into the bed-

room and go to bed, and I went in and shut the

door, then I heard some shots. I don’t know how

many but I heard one group and then there were

some more later, but not too much later. The second

shots were from another place because I could hear

them better, they were closer to the bedroom.

(240).

As to the interview between Singleton and Marshall

Perry, Perry related to Singleton the following:

Perry said he was actually seated in d chair at the

time the scuffle took place. Perry said the man

pointed the gun right at his head. (201).

Singleton also testified that he found four (4) gun

shot wounds in McGann and found four (4) expended

cartridges which came from the .38 and the .45. (206).

11

Singleton also testified that he wert to Midland and

talked to Sid Trevino who told him that he had loaned

the .38 pistol to McGann. (211). He also related that

he talked with a Taylor Wayne Hodges who informed

him about a hijacking of a poker game in Lubbock which

McGann was going to commit. (213). A tape recording,

either legal or illegal, was also listened to concerning

McGann’s activities in Dallas. (215).

JIM COOPER, PRESENTLY UNEMPLOYED, was

employed at the time of the occurrence as an investigator

for the Lubbock County Sheriff's Department. He testified

that on the day in question a little after 6:00 O'Clock

A.M. he went to the residence of Appellant. He was met

at the door by Appellant. He had a report of a killing

(prior to being met by Appellant) when he arrived. He

went on inside the residence. Other officers were also

present at this time. (268). When he got to the south

side room of the residence he saw the two bodies of

McGann and Meshell. (287). They were dead as they

were not breathing. Appellant told him the names of the

bodies. (288). Cooper called the Sheriff's Department

and asked for Neeley and Montgomery to come to the

scene. He observed a bullet on the floor. (288).

Cooper was recalled on rebuttal by the State of Texas

and he testified, over objection, to the inadmissible con-

versation he had with Appellant. (527). He testified that

Appellant told him there had been a double shooting and

that McGann and Meshell had shot one another.

The Court’s attention is also directed to Appendix “B”

which contains copies of pages from the Record on Appeal

which pertain to these issues.

12

REASONS FOR GRANTING THE

WRIT OF CERTIORARI

Petitioner submits that it is mandatory, when first raised

and requested, for a trial court to hold a Jackson v. Denno,

378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964),

type hearing, out of the jury’s presence, where the State

intends to introduce into evidence an oral statement of a

defendant.

Petitioner, in any event, submits that the oral statement-

confession of this Petitioner, in this cause, is invalid as

same was not taken in compliance with Miranda v. Ari-

zona, 384 U.S. 436, 86 S.Ct. 1062, 16 L.Ed. 2d 694

(1966).

In Turner v. United States, 1968, 387 F.2d 333. the

Court of Appeals for the Fifth Circuit, speaking through

Circuit Judge Bell, adequately put the question when it

held:

Prior to trial defense counsel filed a motion to sup-

press any and all admissions made by appellant to

federal agents while under arrest or detention, con-

tending that she was not fully advised of her right

to counsel or of her right to remain silent within the

teaching of Miranda v. State of Arizona, 1966, 384

U.S. 436, 86 S.Ct. 1062, 16 L.Ed. 2d 694. The hear-

ing on the motion was continued by stipulation to

the time of trial. During the course of the trial and

when the admissions were offered by the prosecution,

defense counsel objected on the basis of Miranda and

moved that the voir dire on admissibility be heard

by the court outside the presence of the jury. Defense

counsel also moved that the defendant be allowed to

testify in rebuttal at that time and prior to her case

in chief. The Court denied the motion for a hearing

13

outside the presence of the jury but did not explicitly

rule on the motion to permit appellant to testify as

requested.

The FBI agent who had obtained the admissions

was examined in the presence of the jury, counsel

argued in the presence of the jury and the court

ruled the evidence admissible in the presence of the

jury. The ruling that she was denied no Miranda

right was based on a combination of advice given

appellant by the arresting officer and waiver on her

part. This ruling on admissibility pertains to the

first assignment of error and we hold that the ruling

was not erroneous. The situation is quite different,

however, with respect to the procedural error em-

braced in the second assignment of error.

The voir dire in connection with the admissibility

vel non of the oral admissions, once the issue was

drawn, should have been conducted outside the

presence of the jury. See Fisher v. United States,

5 Cir., 1967, 382 F.2d 31. 35: and Everitt v. United

States, 5 Cir., 1960, 281 F.2d 429, 434.

It is also reversible error not to permit the defend-

ant, in such circumstances, to testify on the admissi-

bility voir dire and prior to her case in chief, whether

a confession or admission, oral or written, be in-

volved. It is then that a defendant may need to

testify in rebuttal to the prosecution’s proof, and

this, too, should take place outside the presence of

the jury. United States v. Carignan, 1951, 342 U.S.

36, 72 S.Ct. 97, 96 L.Ed. 48: and Schaffer v. United

States, 5 Cir., 1955, 221 F.2d 17, 20-22.

That the objection is based on the failure to give

Miranda type warnings rather than on evidence of

physical or mental coercion does not indicate a dif-

ferent result. The rationale of Miranda is that in-

custody interrogation is in itself coercive to the extent

that adequate notice of the right to remain silent and

14

the right to have counsel present must be given in

order to safeguard the constitutional privilege against

self incrimination. Cf. Marion v. Harrist, 5 Cir.,

1966, 363 F.2d 139, 140-142.

The procedure outlined in Jackson v. Denno, 1964,

378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908, and

Sims v. State of Georgia, 1967, 385 U.S. 538, 87

S.Ct. 639, 17 L.Ed. 2d 593, was followed here of

an independent determination of voluntariness by

the trial judge prior to submission of the question

to the jury. However, the determination should have

been made outside the presence of the jury with

appellant having the right to be heard. Cf. United

States v. Inman, 4 Cir., 1965, 352 F.2d 954.

Reversed and remanded for further proceedings

not inconsistent herewith.

Petitioner submits and contends that he was deprived

of due process of law in the following particulars:

1.

The trial court, when the issue was first raised,

should have, pursuant to Jackson v. Denno, 378

U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964),

conducted a hearing out of the jury’s presence on

the admissibility of the oral statement-confession

of Petitioner.

The trial court should have suppressed the oral

statement-confession of Petitioner as it was not

shown that same complied with Miranda v. Arizona,

supra.

Appellant submits that when his trial counsel said:

“Well, we object to it on this [sic] grounds, it does not

conform with the Miranda statute [sic] or any other

statute,” (S.F. 123), that it then became incumbent upon

the Court to conduct a Jackson v. Denno, supra, type

15

hearing. “Upon defendant’s “Miranda” objection to ad-

missibility of statement offered by [State], the trial court

must hold a hearing outside the presence of the jury.”

See U.S. v. Nielsen, Seventh Circuit, 392 F.2d 849.

The decision of Turner v. U.S., supra, was later re-

affirmed in Davis v. Beto, 1970, 423 F.2d 633, where

that

Court said:

The Jackson v. Denno contention, however, must be

considered separately from the issue of voluntariness.

See Smith v. State of Texas, 5 Cir., 1968, 395 F.2d

958. This contention was presented in petitioner's

pro se petition to the district court and there is no

indication that it was ever considered. Also, it is

not clear whether petitioner's state court remedies

have been exhausted on this issue. The case must

therefore be remanded to the district court for a

determination first of the exhaustion of state reme-

dies question. If the petitioner has properly exhausted

his state remedies, then the district court should

consider the Jackson vy. Denno issue. See Smith v.

State of Texas. supra; Fisher v. United States. 5

Cir. 1967, 382 F.2d 31; and Turner v. United States,

5 Cir. 1968, 387 F.2d 333.

This rule of law has also been adopted by other Circuits

of these United States. See U.S. v. Nielsen, Seventh Cir-

cuit,

852:

1968, 392 F.2d 849. where that Court said at page

To avoid the possibility of thus penalizing an ac-

cused for an exercise of his constitutional rights. we

hold that whenever a defendant, by appropriate ob-

jection to proffered testimony concerning his state-

ment made during custodial interrogation, contends

that those statements were made in the absence of

a knowing and intelligent waiver of his rights to

:

on |

wo ES

16

remain silent and consult an attorney, the court

must excuse the jury and conduct a voir dire hearing

to resolve the issue. Cf. Jackson v. Denno, 378 U.S.

366, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964). See,

Tucker v. United States, 375 F.2d 355 (8th Cir.

1967); Evans v. United States, 375 F.2d 988 (4th

Cir. 1967). A voir dire hearing would prevent the

jury from drawing prejudicial inferences by reason

of testimony that the defendant sought to exercise

his constitutional rights. In addition, such a hearing

would enable the defendant to testify on the issue of

waiver without relinquishing his privilege to remain

silent at the trial. Finally, this procedure enables

the court to make a fully informed determination

on the question of the admissibility of the defendant’s

custodial statements. Because the procedure followed

in the instant case was not compatible with protecting

the defendant in the exercise of his constitutional

rights, prejudicial error occurred.

This Court’s attention is also directed to the decisions

of Sigler v. Parker, 1970, 396 U.S. 482, 90 S.Ct. 667,

24 L.Ed. 2d 672; Morales v. New York, 1969, 396 USS.

102, 90 S.Ct. 291, 24 L.Ed. 2d 299; Procunier v. Atchley,

1971, 91 S.Ct. 485, 400 U.S. 446, 27 L.Ed. 2d 524;

and Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.

2d 31 (1967). Compare also Swenson v. Stidham, 404

U.S. 1058, 92 S.Ct. 732, 30 L.Ed. 2d 745 (1972),' and

see also the Fourth Circuit decision of U.S. v. Inman,

352 F.2d 954.

Is there anyway that one could argue that the dictates

of Miranda vy. Arizona, see supra, and Jackson v. Denno,

378 U.S. 368, do other than require that initially a hear-

1. See also 405 U.S. 913, 30 L.Ed.2d 782, 92 S.Ct. 931 (93 S.Ct.

955) (1973).

17

ing out of the jury’s presence must be held. The issue of

an involuntary confession is separate and apart as to

whether or not a hearing must be held. The issue of the

applicability of Miranda is separate and apart from the

question of an alleged involuntary confession as to whether

or not a hearing must be held. If the trial judge had held

a Jackson v. Denno, see supra, type hearing, and fully

developed the facts at said hearing and entered findings

of fact and conclusions of law, then, unquestionably, if

the matter had not changed during the trial of the case,

then Appellant would certainly be wasting this Court's

precious and valuable time. However, that is the point.

This did not take place. This did not occur. If a hearing

outside the jury’s presence had occurred, then another

question might very well be present. But, this did not

occur. To require this Appellant to develop this in the

jury’s presence would, as in pre-Jackson v. Denno, days,

see supra, be an act without meaning. The horse has left

the barn. Why bother to close the gate?

Appellant submits that where the brooding omnipresence

of the police, even at a person’s home, is present, then

he is certainly under detention and restraint. Also, it is

the subjective and not the objective test which controls;

i.e., what was the defendant thinking or, if nothing from

a defendant, what would a reasonable, prudent man be

thinking at the time? How can it be argued where a man

asks about seeing an attorney where there are two (2)

dead bodies, killed by gunshot, in his home, that he is

not under custody, arrest or under restraint? True, Ap-

pellant was not formally arrested by INDICTMENT

WARRANT FOR SOME TIME. However. merely be-

cause the police do not place a person under “formal

arrest” this should not mean Miranda v. Arizona, supra,

e

18

has no meaning or applicability. Compare People v. Paulin,

New York, 255 N.E.2d 164. The test to be applied is,

was he in fact restrained in any significant way or was

he, “as a reasonable person,” led to believe that his

freedom was restrained in any significant way. See People

v. Rodney P., New York, 233 N.E.2d 255; Windsor v.

U.S., Fifth Circuit, 1968, 389 F.2d 530; and Rosario v.

Guam, Ninth Circuit, 1968, 391 F.2d 869.

Unquestionably, two questions arise, almost simulante-

ously:

1. Why did Singleton give Appellant part of the

Miranda warning if he did not think Appellant

was in need thereof?

2. Why did Appellant ask “would I need an attorney”

if he did not think he was under arrest or under

restraint?

In Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22

L.Ed. 2d 311 (1969), the Supreme Court held that a

suspect was the subject of custodial interrogation even

though the questioning was brief and took place in his

own bedroom. Petitioner here was a “virtual defendant.”

See U.S. v. Morado, 454 F.2d 167 (Sth Cir.).

Appellant strenuously urges that Miranda is applicable

and, for this reason, the statement should have been

excluded, and, for the additional failure to either hold a

hearing or exclude the statement, certiorari should be

granted and this cause should be reversed and remanded

for a new trial.

Petitioner was, therefore, by such failures, deprived of

due process of law as provided by the Fifth, Sixth and

Fourteenth Amendments to the Constitution of the United

States of America. (See Appendices “C”, “D” and “E”).

19

CONCLUSION

For all the reasons stated herein, Certiorari should be

granted in this Cause. The ruling and Judgment of the

Court of Criminal Appeals of the State of Texas, made

and entered on November 7, 1973, should be reversed

and this Cause should be remanded to the said Court

of Criminal Appeals of Texas to enter an Order reversing

its former Judgment and remanding this Cause for new

trial to the 99th Judicial District Court of Lubbock

County, Texas.

Respectfully submitted,

MARVIN O. TEAGUE

Attorney for Petitioner

999 State National Building

412 Main Street

Houston, Texas 77002

222-1728

CERTIFICATE OF PROOF OF SERVICE

I, Marvin O. Teague, Attorney for Petitioner, Ronnie

Weedon, hereby certify that a copy of the foregoing

Petition for a Writ of Certiorari has been deposited in

the United States Mail. postage prepaid, certified. and

properly addressed to Respondent’s Counsel, Honorable

John L. Hill, Attorney General of the State of Texas,

State Supreme Court Building. Austin, Texas, this the

day of January, A.D. 1974.

MARVIN O. TEAGUE

21

APPENDIX “A”

’

t

7 EN OTE Deeg COND —

NO. 46,795

RONNIE WEEDON, Appellant

.

THE STATE OF TEXAS, Appellee

Appeal from LUBBOCK County

OPINION

The offense is murder with malice; the punishment,

ten (10) years.

The sufficiency of the evidence both to support the

conviction and to show malice is challenged by grounds

of error twelve and thirteen.

The State’s evidence consisted primarily in what was

found at the scene of this double murder, as analyzed and

explained by expert witnesses and the declarations made

by appellant to the officers who arrived in answer to a

call.

According to Officer Singleton appellant told him “that

he had shot and killed George McGann, possibly with

both guns.”

The bodies of both George McGann (the deceased

named in this indictment) and Mike Meshell were found

dead on the floor of appellant's home. Meshell had been

shot twice. McGann had been shot four times. In their

investigation the officers found five .38 caliber bullets

and an empty five-shot .38 caliber pistol that fired the

bullets. They also found a .45 caliber bullet and the .45

22

caliber pistol that fired it. The .45 bullet was found under

McGann’s body, where the floor tile was indented in the

shape of the bullet.

The State’s expert witness, a chemist, testified, on the

basis of powder burns, that the bullets penetrating Mc-

Gann’s body were fired from a distance of three to five

feet.

We conclude that the evidence is sufficient to support

the conviction. With respect to malice, it may be inferred

from the use of a deadly weapon. Jones v. State, 472

S.W.2d 515; Tsamouris v. State, 472 $.W.2d 141; Hart

v. State, 455 S.W.2d 237; Redd v. State, 452 S.W.2d

919; Howard v. United States, 389 F.2d 287 (D.C. Cir.

1967).

In grounds of error numbers one through six, appel-

lant complains of the testimony of Ranger Singleton re-

lating to his conversation with appellant when arriving

at appellant's home where he had gone to assist local

officers in the investigation. At the moment of arrival the

investigation had not centered on anyone and no one was

in custody. He first spoke to the local officers who were

present at the residence, observed two dead bodies, and

then was approached by appellant, whom he knew. Ap-

pellant first said, “I would like to talk to you in private.”

The two of them then stepped into another room and

appellant said he “could clear this matter up”. At that

juncture the ranger told appellant “he didn’t have to make

any statement and he could have an attorney if he so de-

sired.” Appellant asked, “Would I need one?” The ranger

asked if he had contacted an attorney. Appellant said he had

tried to contact Mr. Phil Brummett (a local lawyer)

and was unable to do so and had contacted a lawyer in

23

Houston. According to the ranger, without further ques-

tioning appellant stated at that time, “that during his

excitement he had shot and killed George McGann [the

deceased] possibly with both guns.” After this conversa-

tion appellant left the room and the ranger continued in

the investigation.

Before discussing the admissibility of the above state-

ments, we observe that unlike the normal case the testi-

mony did not stop at this juncture; rather appellant was

able to develop on cross-examination of Officer Singleton

for approximately 150 pages his entire defensive theory

of self-defense.

We return to the questioned testimony and conclude

that appellant was not under arrest or in custody, nor

was he deprived of freedom of movement in any signifi-

cant manner at the time of the above conversation. This

conversation occurred on September 29, 1970, and ap-

pellant was not arrested until March 15, 1971. It, there-

fore, follows that these statements were not admitted in

violation of the terms of Art. 38.22, V.A.C.C.P., or the

holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed. 2d 694.

By his seventh and eighth grounds of error, appellant

complains of the introduction of certain photographs of

the dead bodies found at the scene. These exhibits, as far

as we can determine, pictured bodies and some of the

wounds inflicted. The photographs, according to the testi-

mony, do not reflect the results of an autopsy as in Terry

v. State, 491 S.W.2d 161. In Martin v. State, 475 S.W.2d

265, this Court held that a verbal description of a body

and its wounds would be admissible and a photograph

depicting the same would be admissible, overruling prior

24

decisions in conflict therewith. See also Fields v. State,

—__. §.W.2d ____. (4 46,999, 10/24/73), Byrd v. State,

495 S.W.2d 226, Foster v. State, 493 S.W.2d 812, and

Lanham v. State, 474 S.W.2d 197.

In his brief, appellant for the first time complains of

the legilibility of the photostatic copies which appear in

the record and asks this Court to have the trial court send

the originals to us by virtue of Sec. 15 of Art. 40.09,

V.A.C.C.P. We note that appellant failed to comply with

Sec. 7 of Art. 40.09, supra, which requires that he file

an objection to the record in the trial court before the

approval of the record by the trial judge.’

By ground of error number nine, appellant contends

that error was committed when the State was permitted

to cross-examine the defense witness Perry concerning

an extraneous offense involving gambling. Perry was

asked about appellant’s business and replied that he was

not in any business at the time of the homicide. Upon

further questioning he stated that some weeks before

appellant’s business at the house was “gaming” and that

“there was gambling going on in the house”. When the

State asked the further question about “what type of

gambling” the court sustained the objection and the jury

was instructed not to “consider that for any purpose”

and the prosecutor was told to proceed no further. Ap-

pellant received a favorable ruling and requested no fur-

ther relief. Nothing is presented for review. Cazares v.

State, 488 S.W.2d 110.

By ground of error number ten, complaint is made of

questions propounded to appellant on cross-examination

1. This Court has full authority to send for photographs. Also,

trial courts should not send photostatic copies to this Court which

are not legible.

t

¥

:

i

‘

25

concerning his line of business. He stated that in addition

to the automobile business he had some clubs and finally

that “I gambled there” at the house. When for the first

time the objection was interposed that this constituted

proof of an extraneous offense the court sustained the

objection and no further relief was requested. No error

has been shown. Cazares v. State, supra.

Ground of error number eleven complains of the court’s

failure to grant a mistrial when the witness Singleton

testified that he was looking for a hidden panel in the

wall at appellant’s home. Prior to this questioning Single-

ton had told appellant's counsel that he had been to

appellant’s home looking for a hidden panel. Appellant

may not complain of testimony which he has introduced.

Williams v. State, 484 S.W.2d 842, Art. 38.24, V.A.C.C.P.

Ground of error number fourteen complains “that the

evidence is insufficient in that it shows self-defense as a

matter of law’. In the case at bar, appellant was able to

develop from the witness Singleton on his cross-examina-

tion of said witness most of the matters upon which he

relies to show that he acted in his own self-defense. How-

ever, the rule set forth in Bell v. State, 434 S.W.2d 684,

seems to be that “such testimony of the State’s witness

on cross-examination is not binding on the State”.

Appellant cites no authority, but we observe that re-

cently in Whitfield v. State, 492 $.W.2d 502, we held in

effect that for an appellate court to say that the evidence

showed self-defense as a matter of law the evidence must

be uncontroverted and no issue thereon presented for the

jury’s determination. An issue of fact was raised for the

jury’s determination. Therefore, we cannot hold that self-

defense was shown as a matter of law.

he

MEAN ET

AAS PRPS, AIMEE TS RET BI owe

26

Ground of error number fifteen contends that the evi-

dence is insufficient as a matter of law because the State

failed to disprove exculpatory statements made by the

witness Singleton on direct examination that appellant

had told him “that during his excitement he had shot

and killed George McGann possibly with both guns” and

testimony of Officer Cooper that appellant had told him

“there had been a double shooting out there. These men

shot each other.”

As to Singleton’s testimony, we hold this statement

not to be exculpatory.

As to Cooper, we observe that not until appellant had

testified did Cooper testify in rebuttal as to the statement

set out above.

We note from Otts v. State, 116 S.W.2d 1084. the

following:

“Another exception which should cause no trouble

is where the State does not introduce the confession

or admission containing the exculpatory statements

in developing its case in chief, but offers same to

contradict or impeach accused where he has testified

as a witness, or where it fairly appears that the con-

fession is not relied on for a. conviction, but is

offered to break down some defensive theory which

has come into the case. . .”

We find no basis for holding that the trial court was

required to give any instructions regarding the effect of

the exculpatory statements.

In his final ground of error, appellant contends that

the trial court erred in overruling appellant’s first motion

for continuance on grounds of the absence of a witness.

27

Attached to appellant’s motion for new trial is an unsigned

affidavit prepared for one Frances Keith. This is not

sufficient to require the granting of a new trial. Haggerty

v. State, 491 S.W.2d 916.

Finding no reversible error, the judgment is affirmed.

MORRISON, Judge

(Delivered November 7, 1973)

(Seal)

CLERK’S OFFICE, COURT OF CRIMINAL APPEALS

OF TEXAS

AUSTIN, TEXAS

I, TOMMY LOWE, Chief Deputy Clerk of the Court

of Criminal Appeals of Texas, do hereby certify that in

Cause No. 46,795, styled:

RONNIE WEEDON, Appellant

VS.

THE STATE OF TEXAS, Appellee

the judgment of the 99th Judicial District Court of Lub-

bock County, Texas, was affirmed on November 7, 1973

and on December 5, 1973, “Leave to file the appellant’s

motion for rehearing was denied”.

THEREFORE, with the denying of the leave to file

the appellant’s motion for rehearing, this cause was dis-

posed of by this, The Court of Criminal Appeals of

Texas, on December 5, 1973, and the appellant having

28

exhausted all remedies in said Court the judgment has

now become final on the docket of this Court.

WITNESS my hand and seal of said Court, at office,

in Austin, Texas, this the 5th day of December, A.D. 1973.

TOMMY LOWE

Tommy Lowe, Chief Deputy Clerk

Court of Criminal Appeals of Texas

29

APPENDIX “B”

5

|

]

MPR, CVS GME MS CAT j

[Singleton—direct 119]

Q. Was there a chair over there in the corner?

A. Yes.

Q. Okay. Would you locate it there on the drawing?

A. I assume this would be it here. It would be a black

leather barcalounger type chair.

Q. Did you at that time determine whether or not

George McGann was dead or alive?

A. He appeared to be dead.

Q. Okay, sir. What did you do after observing Mr.

McGann?

I asked who the other person was.

Did you find out who he was?

He was identified, yes.

Who did you find out the other party was?

He was purported to me to be Mike Meshell.

What did you do then, please?

At this time Mr. Weeden approached me and made

a remark that he had—

POPOPrO>

MR. TARRANT: Excuse me, Your Honor, may we

approach the bench?

(Thereupon, an off the record discussion was

held at bench.)

THE COURT: Mr. Singleton, answer the question

that the District Attorney asked you, in response to this

question.

[Singleton—direct 120]

MR. TARRANT: Your Honor, ask him not to volun-

30

teer anything. We would object to the last answer that

he gave and ask that it be stricken.

THE COURT: The Court overrules the objection.

MR. TARRANT: Note our exception.

Q. What were you doing in the house, please?

A. I was there to assist the Sheriff's Office in an in-

vestigation.

Q. Okay. Had at that time the investigation centered

on any individual?

A. No.

Q. Was anyone besides police officers—was anyone in

that house in custody, in your custody or in any of the

other officer’s custody?

A. No, sir.

Q. What did you consider—who else did you see there

in the house besides the officers?

A. Marshall Perry.

Q. Okay. Had any part of your investigation focused

on him as to any criminal act?

A. No, sir.

Q. Did any part of your investigation center on Ronnie

Weeden, who I have identified, as to any criminal act?

A. No, sir.

[Singleton— 121]

Q. What did you consider these two men, Marshall

Perry and Ronnie Weeden, at that time?

MR. TARRANT: We will object to that.

THE COURT: The Court will sustain the objection.

=e a _|

31

Q. Was anyone in custody at that time, in your custody

at the house?

A. No.

Q. Okay. You were approached—after you had found

out who this other person was, were you approached by

anyone besides police officers?

MR. TARRANT: Your Honor, excuse me, but is

leading and we object to it. We object to that because

the District Attorney is leading—

THE COURT: The Court will overrule it.

Mr. TARRANT: Note our exception.

THE COURT: Yes, sir.

Q. Who did you talk with after that, please?

A. Mr. Weeden.

Q. What did he say to you, please?

MR. TARRANT: Excuse me just a minute, Your Hon-

or, I think possibly we should have him on voir dire,

probably out of the presence of the jury.

THE COURT: The Court will overrule your request

and you may have your exception.

[Singleton—direct—voir dire 122]

MR. TARRANT: Please note my exception.

THE COURT: Yes, sir. Go ahead and ask your ques-

tion, Mr. Jackson.

ep OLY eG RM

26 I TOR EMITS Pres

32

MR. TARRANT: Your Honor, I think probably I

ought to have a bill and we had better do that out of

the presence of the jury.

THE COURT: All right. The jury will please retire.

(Thereupon, the following proceedings took

place outside the presence of the jury.)

VOIR DIRE EXAMINATION

BY MR. TARRANT:

Q. What would be the answer to that question, Mr.

Singleton?

A. To the extent that Mr. Weeden explained to me

the circumstances that occurred prior to our arrival.

Q. What did he say?

A. He related that he had shot and killed Mr. McGann

and possibly used both weapons.

Q. Did you make some kind of report of that at the

time?

A. Yes.

Q. As I understand it now, there was some other offi-

cers there when you got there?

A. Yes, sir.

{Singleton—voir dire 123]

Q. Do you know who they were?

A. Mr. Jim Cooper and Charlie Bowman.

Q. And you say there hadn’t been any—

THE COURT: Mr. Weeden, don’t you leave this court-

room without—just don’t leave this courtroom without

letting your counsel know something about it.

33

Mr. TARRANT: I'm sorry, Your Honor, I had no

idea.

Q. Did you give Mr. Weeden any type of legal warning

before talking to him there?

A. Yes, sir.

Q. What warning did you give him?

A. To the extent that—

Q. I would like know the exact words?

A. He didn’t have to make a statement and he could

have an attorney present.

Q. Is that all that you told him?

A. Yes.

Q. You told him nothing else other than that?

A. No, sir.

MR. TARRANT: Well, we object to it on this grounds,

it does not conform with the Miranda Statute or any other

Statute. He was not warned of his rights

[Singleton—direct cont. 124]

THE COURT: I believe in the state of the record at

this time that the Court will respectfully overrule your

objection.

MR. TARRANT: We except to the ruling of the Court.

THE COURT: Yes, sir.

MR. TARRANT: May I object to it now and let him

go ahead, and not object to it while he is on the stand

and have any objections—

THE COURT: Yes, sir. It will be all right for you to

34

make it as a part of your bill without making further

objections to it if you want.

(Thereupon, the jury was returned to the jury

(box and the following proceedings took place

(before the Court and jury.

DIRECT EXAMINATION (CONT)

BY MR. JACKSON:

Q. Mr. Singleton, where were you in the house out

there when you were approached by Ronnie Weeden?

MR. TARRANT: Excuse me just a minute. I object

to the form of the question. I don’t believe there is any

testimony that he was ever approached by Weeden.

THE COURT: The Court will sustain the objection.

Q. All right. Where did you see Mr. Weeden, if you

saw him?

[Singleton—direct cont. 125]

A. The first time that I saw him he was near the bar

area, in the general vicinity right here. (indicating)

Q. Okay. Where were you, please?

A. I had come in this door right here.

Q. Where did you go then, please, where did you go

in the structure?

A. I went to this body and this one. (indicating)

Q. Where was Mr. Weeden at that time?

A. He was still in this area right here.

Q. Okay. After going over here you said that you went

over to this body?

35

A. Yes.

Q. And Mr. Weeden was here, is that correct?

A. In that area, yes, sir.

Q. Okay. What did you do after going over to this

body, please?

A. That was at the time that I asked who this was?

Q. Okay. And that was related to you by other officers,

is that correct?

A. Yes.

Q. What did you do then, what was the very next

thing that you did, please?

A. At this time I talked to Mr. Weeden.

Q. Did he say anything to you?

[Singleton—voir dire 126]

MR. TARRANT: Excuse me. May I have him on voir

dire to see if the sequence is properly in line.

THE COURT: All right.

VOIR DIRE EXAMINATION

BY MR. TARRANT:

Q. Mr. Singleton, I think at that time you gave him a

legal warning, something that you considered a legal

warning, didn’t you?

A. Yes.

Q. What was the warning that you gave him?

MR. JACKSON: Your Honor, I believe this is taking

my direct examination.

THE COURT: The Court is going to sustain the ob-

jection.

36

MR. TARRANT: Well, I am just trying to get the

sequence proper, Your Honor. If he said something to

Weeden and if Weeden said something, I want to get it

in properly, if he said something to Weeden first.

THE COURT: Let the State develop it.

MR. TARRANT: I am going to object to the ruling of

the Court.

THE COURT: The Court will overrule the objection.

[Singleton—direct cont. 127]

MR. TARRANT: Note our exception.

DIRECT EXAMINATION (Cont.)

BY MR. JACKSON:

Q. Who was the first one, you or Mr. Weeden, to say

anything right there in that room?

A. Mr. Weeden.

Q. Okay. What is the first thing that he said to you

then?

A. “I would like to talk to you”.

Q. Okay. What did you do then, did you talk to him

right there in that room?

No. I stepped to another room.

Why did you step to another room?

Mr. Weeden desired this in private.

Who desired this?

Mr. Weeden.

Did he tell you that?

Yes.

What did he tell you?

OFPOPOPO?Y

37

A. His exact words, “I would like to talk to you in

private”.

Q. Did he say where any place in private would be?

A. No.

Q. What did Mr. Weeden do then, please?

A. Mr. Weeden and I stepped to another room.

[Singleton—direct cont. 128]

Q. Okay. Did you both go shoulder to shoulder or

did you lead him into that room or what, who went first?

I do not recall.

Okay. Which room did you go into?

In this area here. (indicating)

Okay. In that room that you just pointed out?

Yes.

Did you have any conversation while you were

walking to that room?

A. Not that I recall.

Q. What was the first thing that was said, if anything,

when you reached the room that you pointed out?

A. Mr. Weeden related that he could clear this matter

up and say specifically what had happened.

Q. Okay. What did you do then?

A. I told him that he didn’t have to make any state-

ments and that he could have an attorney if he so desired.

What did he say.

He asked, “would I need one”?

Okay. What was said?

I asked if he had contacted an attorney.

What did he say?

He said, “yes”.

And did he say anything else about an attorney?

OFPOPrO>y

OFOPOPO

MEO TENE LEE ARIEL OS ED SERN IY

hen T4S

POT Ne a

38

[Singleton—direct cont. 129]

A. He said that he had attempted to contact Mr. Phil

Brummett and was not able to do so, and had contacted

an attorney in Houston.

Did you ask him anything else at that very point?

No.

Did he say anything then?

Yes.

What was’ that?

He said that during his excitement that he had

shot and killed George McGann, possibly with both guns.

Q. Okay. Were you and he the only—you and Ronnie

Weeden the only ones in that room that you pointed to?

A. At that time, yes.

Q. Did you leave that room—when did you leave that

room?

A. After Mr. Weeden did.

Q. Okay. Where did you go then?

A. I assisted the other officers in the search of the

residence and general investigation.

Q. Okay. Did you continue your general investigation,

is that what you testified to?

A. Yes.

POPOPO

MR. JACKSON: May we approach the bench, Your

Honor?

THE COURT: Yes.

[Singleton—direct cont.—cross 130]

(Thereupon, an off the record discussion was

(held at the bench.

|

|

|

39

CROSS EXAMINATION

BY MR. TARRANT:

Would you tell me your name again, please?

Jim Singleton.

Where are you from, Mr. Singleton?

Lubbock.

Were you born and raised here?

No, sir.

Where are you from?

I was born in Brownfield.

How long have you been here in Lubbock?

I came to Lubbock in September of 1956.

SOPOPOPOPOPO

Qa

°

there.

Department of Public Safety.

That is the highway patrol?

Yes, sir.

And you were with them for how long?

I believe ten years.

Until °66?

Yes, sir.

And then what did you do?

OFOPOPrOyr

Who did you work—did you work for someone

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APTA AEDT OOPS CMBR ANE ANT HSE HL CHR OHNE

40

APPENDIX “C”

CONSTITUTION OF THE UNITED STATES

Fifth Amendment

“No person shall be held to answer for a capital

or other infamous crime unless on a presentment or

indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when

in actual service, in time of war or public danger;

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use without just com-

pensation.”

41

APPENDIX “D”

CONSTITUTION OF THE UNITED STATES

Sixth Amendment

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by and

impartial jury of the state and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses

in his favor, and to have the assistance of counsel

for his defense.”

OPEN RRS PBA LTE RINE PR PE eM) HR LINN

Poorer

42

APPENDIX “E”

CONSTITUTION OF THE UNITED STATES

Fourteenth Amendment, Section 1.

“* * * nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

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