John Frank Ledbetter, Jr. v. Warden, Maryland Penitentiary

368 F.2d 490, 1966 U.S. App. LEXIS 4902

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 22, 1966
• Docket: 10154_1
• Status: Published

Opinions

SOBELOFF, Circuit Judge.

This is an appeal by the State of Maryland from the decision of the District Court, granting appellee John Ledbetter’s, petition for a writ of habeas corpus. Ledbetter was sentenced to life imprisonment upon his 1960 conviction in the Baltimore City Criminal Court for first degree murder. After Ledbetter has exhausted state remedies, the District Court conducted a plenary hearing on his claims, and held that oral and written statements, taken from him by the police and used at his trial, had been obtained in violation of the Due Process clause of the Fourteenth Amendment. The District Court further held that the failure of Ledbetter’s trial counsel to object to the admission of these statements did not constitute an intelligent waiver under the standards laid down by the Supreme Court. Thus, Ledbetter was ordered released unless the State should retry him without the use of incriminating statements, or note an appeal. We concur in the findings and rulings of the District Court, and the decision will be affirmed.

On the evening of August 10, 1959, police began an investigation of the robbery-murder of Lawrence North. The following morning they arrested and held for investigation one Jerry Dennis, a codefendant in Ledbetter’s trial. After some questioning by the police, Dennis confessed, implicating Ledbetter and two others. Acting on this information, the police arrested Ledbetter at his place of work sometime between three and five o’clock that afternoon. Sergeant Kendrick, who issued the arrest order, testified at the District Court hearing that Ledbetter was at that time regarded as a principal in the case, and was picked up in order to be charged.

Ledbetter was nineteen years old, had completed the eighth grade, and from the hearing below it appears that this was his first serious encounter with the police. When he was brought to the station the police were taking a written statement from Dennis, so Ledbetter was kept in a small room guarded by Officer Moser. Although there was some dispute as to whether Moser was actually interrogating petitioner during this interval, the District Court found that Officer Moser led the conversation around to the crime and that Ledbetter made several oral incriminating statements. On the basis of the evidence at the hearing, the District Judge also found that before making these inculpatory statements Ledbetter requested an opportunity to telephone his family, and his request was refused. Moreover, the police admitted that they at no time advised Ledbetter of his right to remain silent, that any statements he might make could be used against him at his trial, or that he had a right to an attorney.

Later, about 8:30 that evening, Led-better was interviewed again, this time by six police officers. The statement which had earlier been given by his accuser, Jerry Dennis, was read to him, and the police again failed to advise Led-better of any of his rights. Ledbetter signed a written statement describing his part in the crime. At the trial, conducted in February, 1960, the written confession and Officer Moser’s account of the oral admissions were introduced into evidence without objection from the defendant’s counsel.

I

We agree with the District Court that from the totality of circumstances,¹ Ledbetter’s confessions were obtained in violation of his due process rights. This youth was alone in the hands of the police, and his requests to contact his family were refused. He was not told of his right to maintain silence, or that his statements might be used against him. And he was not informed of his right to an attorney. Considered against the background of Ledbetter’s age and education we think the District Court correctly found that the confessions were not voluntarily given. Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); see Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Miller v. Warden, 338 F.2d 201 (4th Cir. 1964).

When Ledbetter was refused permission to make a phone call he knew full well that the police intended to hold him incommunicado and pursue their interrogations until they would bear fruit. The crucial inquiry is the suspect’s knowledge that he will continue to be kept incommunicado. The coercive influence cannot be measured by the number of hours Led-better was actually detained, but only by the effect upon him of the obvious intention of the police to persist in their secret inquisition without granting his request to communicate with the outer world. The production of a co-suspect’s implicating statement, coupled with the denial of access to the telephone, made it clear to Ledbetter that he could gain respite only by confirming the statement. The principle of Haynes v. State of Washington, supra, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, reaffirmed in Davis v. State of North Carolina, supra, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), is operative here and the difference in the factual situations is not decisive.

The conclusion that there was a violation of due process here is not impaired by the recent Supreme Court decision in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The Court was careful to stress that while it was denying retroactive effect to the safeguards spelled out in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), nevertheless persons whose trials have been completed before those decisions are not precluded from invoking “a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years.” 384 U.S. at 730, 86 S.Ct. at 1779.

“That test,” said the Court, “now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. * * Thus, while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have been completed from invoking the same safeguards as part of an involuntariness claim.” Ibid.

All that the District Court did was to apply the “increasingly meticulous” standards of voluntariness to Ledbetter’s case. Indeed, while the Supreme Court denied Johnson relief on direct appeal, the door was opened to him to make a collateral attack based on the principle of Haynes and Davis:

“Petitioners now assert that they were prevented from obtaining outside assistance while they were being interrogated. The police allegedly refused them access to their families or a lawyer and also thwarted the efforts of their relatives and friends to contact them. We have already pointed out that allegations of this kind are directly relevant to a coerced confession claim and that such a claim presents no problem of retroactivity. See also Davis v. State of North Carolina, 384 U.S. post, P. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.” 384 U.S. at 735, 86 S.Ct. at 1782.

The coercion which both Haynes and Davis condemn is any practice which has the effect of controlling the prisoner’s will. The District Court found that this was the effect here, and we uphold that finding.

II

We also agree that trial counsel’s failure to object to the admission of the written confession and oral statement did not forfeit Ledbetter’s right to challenge his conviction by federal habeas corpus. In Fay v. Noia, 372 U.S. 391, 438-440, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), the Supreme Court acknowledged a “limited” discretion in the District Court to dismiss a habeas corpus petition where the applicant “has deliberately bypassed the orderly procedure of the state courts.” This discretion, said the Court, is to be “narrowly circumscribed,” however, and the governing standard is the “considered choice of the petitioner”; waiver will be implied only where the applicant made “an intentional relinquishment of a known right or privilege.” Ibid. (Emphasis added.) See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Thus,

“If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits. * * * At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. * * A choice made by counsel not participated in by the petitioner does not automatically bar relief.” Fay v. Noia, 372 U.S. at 439, 83 S.Ct. at 849 (Emphasis added.)

The District Court found that Ledbetter’s counsel did not consult with him concerning the crucial decision not to object to the confession and the oral statement. Cf. United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (5th Cir. 1958), cert. den., 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78 (1959). And while that fact alone will not necessarily bar a finding of waiver, see Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), the District Court pointed out that the confession and the statement were the only evidence linking Ledbetter to the crime. The federal challenge thus went to the very foundation of the proceeding, and waiver should not be implied except in the clearest instance of a deliberate bypassing of state remedies. See Brown v. Allen, 344 U.S. 443, 503, 73 S.Ct. 437, 97 L.Ed. 469 (1953) (Frankfurter, J., concurring); Whitus v. Balckom, 333 F.2d 496 (5th Cir. 1964).

Any intimation of a deliberate design to knowingly forego the federal constitutional claim is negated by the fact that at the time of the trial, there was no basis on which a trial attorney could reasonably object to this evidence. Ledbetter was tried in 1960, three years before the decision in Haynes v. State of Washington, supra, and other decisions which have subsequently fashioned the standard by which the procurement of this pretrial confession is to be judged.² Thus, as the Second Circuit has pointed out, “[i]t would be the height of unreason * * * to insist that [Ledbetter] should have objected to evidence which was properly admitted under the applicable law at the time of trial.” United States v. La Vallee, 334 F.2d 331, 333 (2d Cir. 1964); see United States ex rel. Angelet v. Fay, 333 F.2d 12 (2d Cir. 1964). Certainly, the failure to make what would have been at the time a fruitless objection falls far short of the deliberate bypassing of state remedies with which the Supreme Court was concerned in Fay v. Noia.

Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), does not call for a different conclusion. There, the state contended that defendant’s challenge to illegally seized evidence was precluded by his local attorneys’ failure to raise the objection at trial. The case was tried in 1963, after the Supreme Court’s decision in Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), holding such evidence inadmissible in state criminal proceedings. In an opinion by Mr. Justice Brennan, the author of Fay v. Noia, supra, the Court remanded the case to the state court for a hearing on whether petitioner’s counsel had “deliberately bypassed the opportunity to make timely objection in the state court, and thus that the petitioner should be deemed to have forfeited his state court remedies.” 379 U.S. at 450, 85 S.Ct. at p. 569. After restating the waiver standard of Fay v. Noia, the Court noted several possible reasons for a strategic decision to allow the disputed evidence into the case, and observed that if so, deliberate bypassing of the contemporaneous objection rule could be deemed a waiver.

The discussion in Henry is simply an application of the waiver principle delineated in Fay v. Noia, and does not purport to alter that standard in any way. It is inapplicable where, as here, there existed no known ground on which the trial attorney could have based an objection at trial. In the context of this case there was therefore no “strategic choice” to be made, and none can be supplied by the fact that when the confession was admitted in evidence — as it inevitably would have been in 1960 — the lawyer made an argument based on it. Since the confession and the statement were the only evidence linking Ledbetter to the offense, it is patent that the attorney —whom the District Court found to be competent — would have objected strenuously to their admission if he had thought that he had any legal ground to do so. His lack of prescience and failure to anticipate the later decisions should not deprive petitioner of his opportunity to assert the constitutional right on habeas corpus.

It is plain that once the police had Jerry Dennis’ confession, they interrogated Ledbetter in the hope of insuring his conviction. Cf. Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1961); Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). But the techniques used to secure the admissions —incommunicado detention and questioning, refusal of outside contacts, and failure to inform the suspect of even his most basic rights — were inherently coercive, and afforded the accused no real choice between admitting and denying his participation in the crime. See Haynes v. State of Washington, supra 373 U.S. at 514, 83 S.Ct. 1336. No matter how guilty a suspect may appear to be, our system of law, with jealous regard for his rights, demands that he be accorded due process at every step of the proceedings against him. At the most critical stage of the proceedings against Ledbetter — the evening of his confession —these safeguards were denied him. For this reason, the confession must be excluded from any subsequent trial. See Smallwood v. State of Maryland, 367 F.2d 945 (4th Cir. 1966).

Affirmed.

1 . The District Court hearing was the first inquiry into the circumstances surrounding the confessions. The point was urged in a post-conviction proceeding, but dismissed because it had not been raised on direct appeal. In denying an application to appeal from the denial of post-conviction relief, the Maryland Court of Appeals affirmed this ruling on the ground that the point had been waived at the original trial. See Ledbetter v. Warden, 234 Md. 643, 200 A.2d 81 (1964).

2 . Four members of the Court (Justices Clark, Harlan, Stewart and White) dissented in Haynes on the grounds that that decision was “an abrupt departure from the rule laid down in the cases of this Court and an enlargement of the requirements heretofore visited upon state courts in confession cases.” 373 U.S. at 503, 83 S.Ct. at 1347 (dissenting opinion of Mr. Justice Clark.)