Joe Edward Smith, Appellant, v. the State of Texas, Appellee, 395 F.2d 958 (5th Cir. 1968)

James J. Hippard, Houston, Tex., for appellant.

Samuel Robertson, Jr., Houston, Tex., for appellee.

Before WISDOM and GEWIN, Circuit Judges, and BREWSTER, District Judge.

BREWSTER, District Judge:

This appeal is from a judgment denying the appellant's petition for writ of habeas corpus attacking the validity of his state court conviction on the ground that there had been no determination of the voluntariness of his confession in the manner required by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A.L.R.3d 1205 (1964).

The appellant was convicted of murder with malice aforethought and assessed the death penalty in a trial in a Criminal District Court of Harris County, Texas in April, 1960. The conviction was upheld on direct appeal. Smith v. State, 171 Tex.Cr.R. 313, 350 S.W.2d 344, cert. den. 368 U.S. 883, 82 S. Ct. 126, 7 L. Ed. 2d 83 (1961). The usual course of piecemeal, post-conviction, collateral litigation of issues that followed now has the question of the validity of this conviction before this Court for the third time. The appellant here has suffered adverse decisions on his claims that his confession was involuntary as a matter of law (Smith v. Heard, S.D. Tex., 214 F. Supp. 909 (1962), affirmed, 5 Cir., 315 F.2d 692, cert. den. 375 U.S. 883, 84 S. Ct. 154, 11 L. Ed. 2d 113), and that the prosecution failed to offer evidence meeting the requirements of Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654, and Garner v. State of Louisiana, 368 U.S. 157, 82 S. Ct. 248, 7 L. Ed. 2d 207 (Smith v. State of Texas, S.D. Tex. 225 F. Supp. 150 (1963), affirmed, 5 Cir., 329 F.2d 498). He has been blessed from the beginning with able counsel, experienced in trials of criminal cases, who have advocated his claims aggressively all the way. It finally appeared for a short time, however, that the opinion of this Court in 329 F.2d 498, above referred to, had put an end to the appellant's post-conviction litigation, for in a motion filed for a second stay of mandate on that appeal, he said:

"On 20 May 1964 this Court issued a stay of mandate in the above cause (in which the Court affirmed the District Court's denial of appellant's application for writ of habeas corpus) to enable appellant to apply for a writ of certiorari from the Supreme Court of the United States. An intensive reexamination of the law in light of the Court's opinion has convinced counsel for appellant of the futility of such application and so none has been made."

Jackson v. Denno, decided by the Supreme Court shortly before the filing of such second motion for stay of mandate, dispelled his feeling of futility and brought about the filing of the application for writ of habeas corpus which is now before this Court.

In this case, as in Jackson v. Denno, a heinous crime was committed, and the issue of the voluntariness of the confession was raised primarily by the testimony of the accused himself.

The facts of the brutal murder for which appellant was convicted and the circumstances of the making of the confession appear fully in the opinions above stated. The appendix to Judge Noel's opinion, 225 F. Supp. 150, at 155, et seq., contains an admittedly correct detailed account of the crime. Only a brief factual summary is therefore required here.

Mrs. Bodenheimer, obviously acting under the impression that an innocent child ought to be safe on the public streets of a city that claimed to be civilized, permitted her little twelve year old boy to go for a swim on a July afternoon in 1959. He was to travel on his bicycle from his home to the pool and back. The entire route was within the city limits of Houston, Texas. The little boy lost his life under the most merciless circumstances at the hands of the appellant and four confederates on his way back home that afternoon. The murder was perpetrated in a small unoccupied metal shack located on an otherwise vacant lot in Houston. The tract was known as "the dirt yard lot" because it had formerly served as a place to pile dirt to be sold for use around residences. The appellant and his gang knocked the Bodenheimer boy off his bicycle as he was riding along the street in the area of some unoccupied lots, and forcibly dragged him into the metal shack. When they got him inside, they stripped off all his clothes and each one of the gang committed anal sodomy upon him. One or two members of the group would hold him while another one was engaged in the act of sodomy. That process was repeated until each one of the five assailants had taken his turn. The child's resistance and screams were suppressed by constant choking of him. When the gang had finished with the boy, they stuffed his limp body into an unused ice box in the shack, closed the box and left. An all night search finally led to the discovery of the nude, lifeless body in a sitting and cramped position in a pool of blood in the box. His clothes were still on the floor of the shack and his bicycle was just outside. Injuries apparent on his neck and the upper portion of his body indicated that he had been severely choked and that his left chest had been crushed. The pathologist found that death was due to asphyxiation from suffocation "due to pressure on the neck, and on the left chest."

A gang of young Negroes, ranging from juvenile age to twenty-two years had been robbing newsboys at the point of a knife over an area in Houston that included the place where the boy was murdered. The appellant and two of his confederates were arrested and jailed in connection with some of those robberies. One of them other than the appellant readily confessed, and, in so doing, also told about killing the Bodenheimer boy. The officers had not associated them with that homicide until that time. In a short time, all of the participants made written statements to Negro detectives of the City of Houston confessing to the murder. The appellant's confession showed that he took a leading part in it.

The appellant contended that his confession was obtained as the result of threats and severe beatings. His claims were refuted by the testimony of ten witnesses, by photographs of him taken within a short time after the confession, and by the circumstances. All interviews of him by the officers were conducted in a room at the police station with the door to the hall open. Several representatives of the news media were in the hall in the area of the door at all times. One of the newsmen was in and out of the room during the interrogation. The other two, who were television cameramen, took pictures of appellant an hour or so after the confession. All three of them said they neither saw nor heard any indication of abuse. The television film which was offered in evidence was taken within about an hour after the confession was made. It showed no evidence of the swelled and lacerated lip the appellant claimed he had as a result of being struck in the face during the interrogation. All of the officers involved denied any mistreatment of the appellant. The confession was strongly corroborated. Smith v. State of Texas, 329 F.2d 498.

The evidence on the issue of voluntariness of the confession was heard in the presence of the jury. The only action taken by the Court in regard to it was to overrule without comment the objection made to its admission on the ground that it was involuntary. The question of voluntariness was submitted to the jury under a charge about which no question has ever been raised.

The confession has been heretofore upheld against claims of involuntariness as a matter of law by the Court of Criminal Appeals of Texas, by the United States District Court for the Southern District of Texas, and by this Court, but Jackson v. Denno now raises a new question.

Jackson v. Denno involved an attack upon a conviction in a New York state court where the judge was required to submit the question of voluntariness of a confession to the jury if there was a factual conflict on the issue over which reasonable men could differ. The Supreme Court of the United States held in that case that such procedure was unconstitutional because it called upon the same trier of facts to determine the questions of voluntariness and of reliability.¹  Its opinion says that in a trial of a criminal case before a jury the defendant is entitled to have the judge make a "reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend." 378 U.S., at 391, 84 S. Ct., at 1788, 12 L. Ed. 2d, at 924.

On the same day as the decision in Jackson v. Denno, the Supreme Court, in memorandum opinions in Lopez v. Texas, 378 U.S. 567, 84 S. Ct. 1924, 12 L. Ed. 2d 1038, and Harris v. Texas, 378 U.S. 572, 84 S. Ct. 1930, 12 L. Ed. 2d 1040, held that the procedure followed in those cases had the same vice as the condemned New York practice.

The evidentiary hearing on the present petition for writ of habeas corpus was held at a time when the able trial judge did not have the advantage of the cases construing Jackson v. Denno which dictate our present decision here. He recognized the applicability of the Jackson v. Denno rule, but concluded that it had been met in this case. Smith v. State of Texas, 236 F. Supp. 857. The transcript of the record of the murder trial offered in the habeas corpus hearing failed to show any ruling by the trial judge on the factual issue of the voluntariness of the confession. The State of Texas attempted to defeat the Jackson v. Denno attack upon the conviction by offering evidence to the effect that the trial judge in the murder case did actually make a separate and independent determination in his own mind that the appellant's confession was voluntary, even though he did not announce it. That judge testified orally on the hearing that while his practice had been to make no announcement of his decision on the issue of voluntariness of a defendant's statement, he had always in fact made one in his own mind; that it was a matter of conscience with him not to submit a confession to the jury which he had decided by such process was involuntary; that he "would say" that he decided in his own mind that the appellant's confession was voluntary, otherwise he would not have let it go before the jury. We feel that in view of Sims v. State of Georgia, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593 (1967), this evidence falls short of showing the "reliable and clear cut determination" of the issue of voluntariness required by Jackson v. Denno. It is said in the Sims case, 385 U.S., at 544, 87 S. Ct., at 643, 17 L. Ed. 2d, at 598: "* * * Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue, and it is therefore impossible to know whether the judge thought the confession voluntary or if the jury considered it as such in its determination of guilt. * * *" The undisclosed determination by the judge in his "own mind" that the confession was voluntary does not satisfy this requirement that the record show "with unmistakable clarity" that he actually made a ruling on the issue of voluntariness.² 

The fact that Jackson v. Denno was decided long after the Supreme Court denied certiorari on the original appeal from the appellant's murder conviction in this case requires us to consider whether the constitutional rule announced therein was intended to be applied retroactively. The majority opinion in Jackson v. Denno did not mention that question; but subsequent decisions by the Supreme Court have made it clear that the rule is retroactive in application.

In each one of the recent landmark cases on retroactivity of new constitutional principles in criminal cases, the Supreme Court has referred to Jackson v. Denno as being one of the cases where the rule was to be retroactively applied. Linkletter v. Walker, 381 U.S. 618, 628, 85 S. Ct. 1731, 1737, 14 L. Ed. 2d 601, 609 (1965), cited Jackson v. Denno in support of the statement that, "* * * It is true that heretofore without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule. * * *" Tehan v. Shott, 382 U.S. 406, 416, 86 S. Ct. 459, 465, 15 L. Ed. 2d 453, 460 (1965), after stating that denial of counsel or of an appeal to an indigent is calculated "to infect a criminal proceeding with the clear danger of convicting the innocent", says, "The same can surely be said of the wrongful use of a coerced confession. See Jackson v. Denno * * *" Johnson v. State of New Jersey, 384 U.S. 719, 727, 728, 86 S. Ct. 1772, 1778, 16 L. Ed. 2d 882, 889 (1966), says:

"As Linkletter and Tehan acknowledged, however, we have given retroactive effect to other constitutional rules of criminal procedure laid down in recent years, where different guarantees were involved. For example, in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963), which concerned the right of an indigent to the advice of counsel at trial, we reviewed a denial of habeas corpus. Similarly, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A.L.R. 3d 1205 (1964), which involved the right of an accused to effective exclusion of an involuntary confession from trial, was itself a collateral attack. In each instance we concluded that retroactive application was justified because the rule affected `the very integrity of the fact-finding process' and averted `the clear danger of convicting the innocent.' Linkletter v. Walker, 381 U.S., at 639, 85 S. Ct., at 1743, 14 L. Ed. 2d, at 614; Tehan v. Shott, 382 U.S., at 416, 86 S. Ct., at 465, 16 L. Ed. 2d, at 460."

"Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. * * *"

Johnson v. State of New Jersey mentions that Jackson v. Denno was itself a post-conviction case. Boles v. Stevenson, 379 U.S. 43, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964), also applied the rule in a collateral attack on a state court conviction.³ 

Mitchell v. Stephens, 8 Cir., 353 F.2d 129, 144 (1965), and State of Minnesota ex rel. Bassett v. Tahash, 8 Cir., 364 F.2d 922 (1966), are court of appeals cases which hold that the Jackson v. Denno constitutional rule is to be retroactively applied. Additional cases by courts other than the Supreme Court and the courts of appeals on the retroactive application of the rule appear in the annotations in 1 A.L.R.2d 1251 and 14 L. Ed. 2d 992.

Some confusion has arisen from the reference in the concluding portion of Jackson v. Denno to "cases to be tried hereafter",⁴  378 U.S., at 395, 84 S. Ct., at 1791, 12 L. Ed. 2d, at 926. A few cases have taken that language to mean that the rule is only prospective in application. United States v. Clifton, D.C.Colo., 239 F. Supp. 49 (1965); United States ex rel. Conroy v. Pate, D.C.Ill., 240 F. Supp. 237 (1965); People v. Hovanian, 22 A.D.2d 686, 253 N.Y.S.2d 241 (1964), expressly overruled in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). That language, however, was not directed to the question now under consideration here. The Court decided two questions in Jackson v. Denno: (1) whether the questions of voluntariness and of reliability of a confession could be decided by the same trier of facts; and, if not, (2) whether the issue of voluntariness had to be decided by the judge before the jury heard evidence about the confession. The first was a constitutional question, while the second was not. Pinto v. Pierce, 389 U.S. 31, 88 S. Ct. 192, 19 L. Ed. 2d 31 (1967). The Court was saying in effect that while it would be the practical and desirable procedure in future cases for the judge to decide the question of voluntariness before permitting the confession to go before the jury, it was going to permit a post-conviction hearing to be held in cases already final at that time to give the judge an opportunity to decide that issue, even though the jury had already heard the confession and determined the guilt of the accused. This construction of the language in question is consistent with the views of Mr. Justice Black and Mr. Justice Harlan that there is nothing in the opinion of the Court to indicate that the constitutional rule is to be applied only prospectively.⁵