Elmer DAVIS, Jr., Appellant, v. STATE OF NORTH CAROLINA, Appellee, 310 F.2d 904

SOBELOFF, Chief Judge. No task is more unwelcome to a federal court than that of determining whether a constitutional infirmity exists in a particular state criminal proceeding. However, when an issue of federal law is raised in a state trial, it may later become our duty to undertake such a review. The question in the present case is whether the District Court erred in dismissing a petition for a writ of habeas corpus filed by a state prisoner without conducting a hearing.

On December 18, 1959, the Superior Court of Mecklenburg County, North Carolina, sentenced Elmer Davis, Jr., to death in the gas chamber for the rape-murder of Mrs. Foy Bell Cooper. The Supreme Court of North Carolina affirmed. State v. Davis, 253 N.C. 86, 116 S.E.2d 365 (1960). Certiorari was denied by the Supreme Court of the United States, 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.2d 819 (1961). The present proceedings were then begun by the filing of a petition for a Writ of habeas corpus under 28 U.S.C.A. § 2241 in the United States District Court for the Eastern District of North Carolina.

After the petition was denied without a hearing, an appeal in forma pauperis was permitted and a certificate of probable cause was issued by the District Court. The gist of the petitioner’s complaint is that an illegally obtained confession was utilized by the State at his trial. ******Confining ourselves at this point to the undisputed evidence in the State record, the following appears: Between 2:00 and 3:00 p. m., Sunday afternoon, September 20, 1959, Foy Bell Cooper, an elderly woman, left her home for a visit to her mother’s grave two blocks away in the Elmwood Cemetery, Charlotte, North Carolina.

About 4:30 that afternoon her lifeless body was discovered by a group of young boys playing at the cemetery. An autopsy disclosed that death had been by strangulation ; also, that the victim may have been raped. A few hours later Elmer Davis, an escaped convict under sentence of seventeen to twenty-five years for robbery and assault with intent to rape, was arrested by the local authorities of Belmont, North Carolina, about twelve miles from Charlotte. The- following day, Davis was taken to Charlotte and placed in the City Jail, customarily used for overnight detention only.

A specific notation was made on the arrest sheet: “Do not allow anyone to see Davis, or allow him to us (sic) telephone.” During the next sixteen days, Davis was questioned by an undetermined number of officers, (twenty-nine had been assigned to the Cooper ease), about the murder and about other felonies thought possibly to have been committed by him since his; escape. The primary purpose was to-check out and break down, if possible, any alibi Davis might have for the afternoon of September 20. Then on October 6 Davis was taken to police headquarters. What occurred there is in dispute.

The police version is that after Davis and a police officer “prayed together,” he signed a paper confessing the rape and murder of Mrs. Cooper, and that he then took the officers to the cemetery and re-enacted the crime. In any event, on returning to headquarters from the cemetery Davis was formally charged with the offense and bound over. Later, in a conversation with his church pastor, Davis stated that he had been properly fed and well taken care of during his confinement.

It is undisputed on the record, however, that Davis was fed two sandwiches twice a day — he says sometimes one — and was permitted to bathe once during that time. At trial, Davis’ counsel objected to the introduction of the confession into evidence. In accordance with the State practice, the trial judge excused the jury and took testimony on the voluntariness of the confession. See State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104 (1951).

According to the transcript, which recites the testimony, not verbatim, but in narrative form, Davis denied making any admission of guilt to the officers or re-enacting the crime for them. He said he was told, “Davis, go in there and sign that paper so you can go to the county jail and get something to eat and get a hot bath,” and that when he signed he “did not think [he] was confessing to any crime.” He contended that he is illiterate and the whole document was not read to him before he signed it.

He testified that he did sign some paper, which was read to him, after a police officer told him, “I determined to fram the hell out of you if you don’t tell me something,” and that he was in fear for his life. He insisted, however, that what was read to him was not represented to relate to any murder. Later, to substantiate this claim, it was pointed out on behalf of Davis that his signature was affixed only to the second page of the two page confession, and that this page contained no mention of the rape-murder.

As to the treatment he received while at the City Jail Davis testified: “I told them I would like to get something to eat, and call my sister so she could bring me something to eat, and they put me way upstairs in a room off by myself where nobody could come up there and see me. * * * During the course of these three weeks, two more detectives talked to me. They would talk to me sometimes twice a day [about the murder]. * * * [T]hey talked to me every day from the time I got there until I signed this paper.” Davis also testified that he lost 15 pounds on the food provided him at the jail.

Also, he asserted that the police did not inform him of his constitutional rights. In rebuttal, police officers asserted that the whole confession had been read to Davis, and that no one told Davis he would “fram” him if he did not sign. Also, State’s witnesses offered to refute the arrest sheet directive to hold the prisoner incommunicado. One related that Davis had asked to see his sister, and that he (the witness) had tracked her down and conveyed the message. The witness did not recall, however, whether she actually visited the prisoner before he confessed.

Four officers admitted interrogating him several times between September 21 and October 2. They did not specify the length and manner of the questioning. The officers did not dispute the entry on the arrest sheet that Davis was being held as a suspect in the Cooper case, but they denied asking him questions about the murder at any time betv/een September 21 and October 2. In addition, they stated that no other person had ever been kept for as long as sixteen days in their overnight jail which lacked kitchen and other facilities usually considered necessary for long detentions.

No explanation was offered for confining him there instead of the regular jail located just across the street, which is customarily used when an arrested person is to be held more than a few hours. At the close of the testimony, the trial judge ruled: “Let the record show that the Court at this time rules that the statement made by the defendant to Lieutenant C. L. Sykes in the City of Charlotte police department, was made voluntarily and such statement is admitted in evidence, as shown by the written record.” The judge made no other findings of fact.

In affirming the trial court’s ruling, the Supreme Court of North Carolina said: “According to our practice the question whether a confession is voluntary is determined in a preliminary inquiry before the trial judge. He hears the evidence, observes the demeanor of the witnesses, and resolves the question. The appellate court must accept the determination if it is supported by competent evidence.” 116 S.E.2d at 370.

To show such support, the court recited: “The officers testified the prisoner had not been mistreated in any way; that he had the same food as other prisoners [in the overnight jail]; that he did not ask to see or communicate with any person except his sister. This request was granted. On the day after the confession the prisoner tolil Dr. Tross, his former pastor — a member of his own race — that he had been well treated by the officers.” 116 S.E.2d 370. The appellate court did not undertake to make independent findings of basic facts, but pointed to evidence that would support findings by the trial judge.

The question in the present case is whether the above furnishes a sufficient basis upon which the District Court could decide without a hearing whether the confession in question was obtained within the bounds of due process. This appeal brings us to the inquiry, in what circumstances may federal district courts rely upon the State record and adjudicate the constitutional claim presented without conducting a hearing. The guideline is laid down by the Court in Brown v.

Allen, 344 U.S. 443, 463, 73 S.Ct. 397, 97 L.Ed. 469 (1953), where it is said that the writ may be refused without a hearing only “ * * * if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion.” Mr. Justice Frankfurter, in his concurring opinion, amplified this portion of the majority opinion.

According to his exposition, concurred in by a majority of the justices, if the State court has held a hearing and rendered a decision based upon “specific findings of fact” the federal judge need not rehear the facts. 344 U.S. at 504, 73 S.Ct. at 444. But, “ * * * if the record * * * is found inadequate to show how the State court decided the relevant historical facts, the District Court shall use appropriate procedures, including a hearing if necessary, to decide the issue.” 344 U.S. at 503, 73 S.Ct. at 444.

We take this to mean that the federal judge may rely upon the state record where the historical facts are not in dispute, or, if there is a dispute, where the State court has resolved the factual conflict. The question is not a new one in the Fcurth Circuit. A case directly in point is Holly v. Smyth, 280 F.2d 536 (4th Cir.1960), where there had been a hearing in the State court, but the conflicting historical facts had not been resolved. We determined, in accordance with Brown v.

Allen, that it was error for the District Court to deny a hearing since the unadjudicated factual allegations raised a substantial constitutional issue. We stated: “[I]f the State Court record, and findings disclosed that there has been a fair and satisfactory consideration of the facts, the federal court need not have a rehearing on the same facts. The record here is totally deficient in this respect; we are not told what evidence was considered or what factual findings were made.

Hence the District Court could not evaluate the State Court’s factual conclusions or treat them as a discretionary ground for denying the petitioner a hearing.” 280 F.2d at 543. Likewise, in Grundler v. North Carolina, 283 F.2d 798 (4th Cir.1960), consistent with Brown v. Allen, we said that the District Court must conduct a hearing to resolve conflicts in the historical facts unless there was a “plain showing that there had been a full, fair and satisfactory adjudication of the issue in the state court.” 283 F.2d at 802.

In that case, however, there was no significant issue of fact bearing upon the constitutional claim. We pointed this out in upholding the denial of a plenary hearing. To the same effect are our holdings in Clark v. Warden, 293 F.2d 479, 481 (4th Cir.1961); Player v. Steiner, 292 F.2d 1, 2 (4th Cir.1961); Bolling v. Smyth, 281 F.2d 192 (4th Cir.1960). Accord: United States ex rel. Sileo v.

Martin, 269 F.2d 586; 591 (2d Cir. 1959), where the court said, “Faced with such a situation, [where the factual basis of a trier’s decision is obscure], the federal district court need not speculate as to the basis of decision' in the state courts, but should itself proceed to a determination of the facts so that the federal question may be resolved.” The practice of appellate courts in confession cases is to consider only the undisputed facts and the facts in favor of the state in determining the issue of voluntariness, where no specific findings have been made by the trier. See, e. g. Culombe v.

Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 6 L.Ed. 1037 (1961). However, this is because appellate courts, unlike the district courts, have no facilities for conducting factual inquiries, and we do not think that this practice must be adhered to by the district courts. Thomas v. Arizona, 356 U.S. 390, 402-403, 78 S.Ct. 885, 2 L.Ed.2d 863 (1958), does not hold otherwise. There the Court merely restated the usual appellate practice above outlined.

True, in that case an issue of fact had been left Unresolved by the state’s determination of voluntariness, and the Court did deem it not an abuse of discretion for the District Court not to hold a hearing to adjudicate the issue, but this conclusion was reached apparently because the issue of fact was not a particularly significant one under the circumstances. In the present ease, the unresolved issues of fact raise a substantial challenge to the validity of the confession.

To summarize, Davis alleges that he was held incommunicado, isolated from counsel, friend or family, in a small room at the City Jail for sixteen days; that he was questioned daily, sometimes twice a day; that he was inadequately fed; and that he was not informed of his constitutional rights. While no mention is made of police brutality, we have been told that “the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed. 2d 242 (1961).

The question to be determined is whether Davis’ will was overborne to obtain the confession. See Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 6 L.Ed.2d 1641 (1961). And its probable truth can shed no light on this issue. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). The State argues that, as Davis was under sentence, his detention was not illegal. The point made on behalf of the prisoner, however, is not the illegality of the detention per se, and at all events we would not concern ourselves with this feature in a state case. Compare McNabb v. United States, 318 U.S. 332, 63 5.

Ct. 608, 87 L.Ed. 819 (1943). Davis’ contention is that had he been kept in a regular jail, given normal food rations, permitted customary access of relatives, friends and counsel, the fact that he was under sentence might have been sufficient basis for the State’s argument to overcome any adverse inference. He makes allegations here of the presence of factors, unusual if not unprecedented in dealing with sentenced prisoners, which tend to offset the explanation offered.

We do not express any opinion as to the ultimate resolution to be made of the petitioner’s claim; however, we think that he has alleged enough to entitle him to a hearing. The District Court should reach its conclusions only after considering the evidence offered at the hearing as well as the State record. Reversed and remanded. . Appellant briefed and argued a second point. It is that the trial court erroneously declined to instruct the jury that in order to find the accused guilty they must be satisfied beyond a reasonable doubt that the murder -was committed in the perpetration of rape.

It appears, however, that the trial court did charge the jury, “If you are satisfied from this evidence and beyond a reasonable doubt that the defendant on September 20,. 1959, while perpetrating the crime of rape, as that term has been defined to you, upon one Mrs. Foy Bell Cooper, the defendant caused her death, then it would be your duty to return a verdict of guilty.” The difference between the instruction requested and that given is not constitutionally significant, and this point will not be further considered. Grundler v. North Carolina, 283 F.2d 798 (4th Cir. 1960). .

For a revealing discussion of the dubious use of religious leverage to induce confessions see, Kruse, The Role of the Clergyman in the Coerced Confession, Wash-burn L.J., Winter, 1901. . The State does not contend, nor could it, that the District Court is not required to make an independent legal conclusion of the constitutional claim present. See, e. g„ Reck v. Pate, 367 U.S. 433, 435, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961). . Justices Black, Douglas, Clark and Burton joined in this portion of Justice Frankfurter’s opinion. . The undisputed length of detention exceeds that in Turner v.

Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949) (four nights and five days); or Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957) (five nights and five days); or Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (three nights and four days); or Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (four nights and five days). . Protracted interrogation has been a basis of decision in numerous Supreme Court cases. See, e. g., Turner v. Pennsylvania, supra, note 5. . Inadequate feeding of a prisoner was a basis of decision in Payne v.

Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). See also, Reck v. Pate, supra, note 5. . See, e. g., Gallegos v. Colorado, 370 U.S. 139, 82 S.Ct. 1209, 8 L.Ed.2d 384 (1962).