Elmer DAVIS, Jr., Appellant, v. STATE OF NORTH CAROLINA, Appellee, 339 F.2d 770

HAYNSWORTH, Circuit Judge: The case of Elmer Davis, Jr., convicted in North Carolina of rape-murder, is again before this Court. This time it comes on appeal from the denial of a writ of habeas corpus after a full evi-dentiary hearing in the District Court, and the resolution by that Court of the historical facts based upon evidence taken before the Court and the prior record in the state court. Since the Court’s ultimate conclusion was warranted by its findings and the findings are supported by evidence, we affirm denial of the writ.

Elmer Davis, Jr., was tried and convicted in the Superior Court of Mecklen-burg County, North Carolina of the rape-murder of an elderly woman, Mrs. Foy Bell Cooper. During the trial, a written confession was offered and received in evidence against him, as was testimony of his re-enactment of the crime, after the Court had heard evidence as to its voluntary character and had found the confession voluntary and admissible. The jury must also have found the confession voluntary, for it was told by the Court that reasonable doubt of guilt would follow from reasonable doubt that the confession was voluntary.

On appeal to the Supreme Court of North Carolina, the conviction was affirmed. The Supreme Court of the United States denied a petition for a writ of certiorari. Thereafter, Davis filed a petition for a writ of habeas corpus in the District Court, which was denied after a hearing during which the District Court reviewed the state court record. On appeal we reversed, a majority of the Court holding that the general finding in the state court that the confession was voluntary was not a resolution of the historical facts which the habeas corpus court could accept.

We held that the parties should be afforded another opportunity to present directly to the District Court evidence bearing upon the question whether the confession was voluntary or the product of coercion. Pursuant to our mandate a full evi-dentiary hearing was held in the District Court, following which the District Judge made detailed findings of fact and concluded that the confession was voluntary. From that conclusion, it follows that receipt in evidence of the confession by the state court was not an infringement of any constitutional right of the defendant. Davis has again appealed.

The historical facts, as found by the District Court, may be briefly summarized here. The factual disputes underlying the ultimate issue are more fully detailed in the earlier opinions of this Court and in those of the District Court and of the Supreme Court of North Carolina. Shortly before September 20, 1959, Davis escaped from a North Carolina prison camp. With a prior record of other offenses, he had been sentenced to seventeen to twenty-five years imprisonment upon his conviction of robbery and of assault with intent to commit rape.

Those offenses had been committed within a few blocks of Elmwood Cemetery in Charlotte, North Carolina, where Mrs. Cooper was murdered on September 20, 1959 while being sexually attacked. The day after the Cooper murder, Davis was arrested in Belmont, North Carolina, some twelve miles from Charlotte. He was not in his prison uniform, but was clad in civilian clothes. He had in his possession women’s undergarments and a billfold containing identification papers of one Bishel Burén Hayes.

Hayes later testified that, on September 20, 1959, the billfold and his shoes were removed from his person while he lay in a drunken sleep near the boundary of a railroad right-of-way and Elmwood Cemetery in Charlotte. When Charlotte police officials learned of the arrest of Davis, they thought he might be a suspect in the Cooper murder. They thought so because of the fact that Davis had previously been convicted of a similar assault in the vicinity of Elm-wood Cemetery.

They requested and received permission of the warden of the state prison to lodge him in the Charlotte City Jail and to keep him temporarily in their custody. Davis was held in the Charlotte City Jail for sixteen days, except for a day and a night when he was held in Ashe-ville and its vicinity. The District Court has found that during those sixteen days he was adequately fed and properly treated. He was not abused physically. He was not threatened or intimidated. He had access to a shower bath which he used. He was questioned from time to time, but not lengthily or overbearingly.

Until the last few days, the questioning was about his possession of the articles he had with him when arrested and the clothing that he wore. He told the officers he had obtained them in the course of break-ins he had committed in the vicinity of Asheville, North Carolina, and the officers undertook to confirm his stories. They were unable to do so, even though on October 1-2 they finally took Davis with them into the mountains near Asheville, where he had promised that he would point out the scenes of his thefts. He was unable to identify them, and his reports of thefts in the mountains remained unverified.

On the afternoon of October 3, 1959, the Cooper case was mentioned to Davis for the first time. He denied knowledge of it. It was again mentioned to Davis on October 5 when he again denied complicity in the crime and stated that he had been in Belmont on September 20. On October 6 Davis was again questioned about the Cooper case. Davis expressed the wish to speak to one of the officers alone. He had known that officer earlier. When the two were alone, the officer referred to Davis’s use of a Bible which he was carrying in his hand.

Upon inquiry Davis told him that he had been reading the Bible, but had not been praying for he did not know how to pray. He agreed that he would like the officer to pray for him. Thereupon, the officer offered the following prayer: “O God, You are now a witness to and the watcher over both of us. I have been asked to pray. I want You to be with me in this prayer. I want You to watch over the person that is present with me; also be with me. I do not only ask prayers for myself, I ask for You to be with all people.” Following the officer’s prayer, Davis told the officer of the attack upon Mrs.

Cooper and the disposition of her body. Later, in the cemetery, he re-enacted the crime, pointing out the place where it had occurred, the opening in the fence through which he removed her body, and the place where he hid it. He also recovered his prison shoes in the bushes where he had concealed them near the cemetery. Still later, he repeated the entire confession before other officers and signed a typewritten version of it after it had been prepared. In this Court, Davis attacks the denial of the writ primarily upon the basis of his version of the facts.

He presents the case as if from the outset he had been questioned for long and exhausting periods by relays of officers about the Cooper murder, was beaten, threatened, intimidated, furnished insufficient food and denied access to a shower bath. Davis, indeed, made such contentions, but they are now foreclosed by the findings of the District Court, which have abundant support in the record. Findings not clearly erroneous are binding upon us here and may not be disregarded as Davis would have us do.

Indeed, the evidentiary support of these findings is overwhelming, with the exception of that for the ultimate finding that his feeding was adequate, and the support of that finding is sufficient. The Charlotte City Jail has no kitchen. From its own facilities it supplied its prisoners with such things as coffee, but it imported the solid foods for their sustenance. It routinely ordered from outside suppliers two sandwiches per meal per prisoner. Each prisoner was entitled to his two, and, since some wished only one, more than two were fre-”' quently available to those prisoners whose appetites were so great.

The routine fare was cold, and on one occasion Davis expressed a wish for hot hamburgers instead of cold sandwiches. Two hot hamburgers and a glass of milk were procured for him. When he went with the officers to Asheville to show them the scenes of his claimed thefts, he had two hot meals, one in the home of one of the officers. Davis, himself, testified that when he requested such things as peanuts and cigarettes they were supplied.

There was testimony that his requests for peanuts, soft drinks and similar food were rewarded not because of any indication of particular hunger, but out of suggestion of particular taste. This evidence adequately supports the finding that the confession was not the product of hunger. The meals that Davis had in and out of the Charlotte City Jail were not so deficient as to require a finding that denial of an unexpressed wish for the prison fare of the county jail was coercive.

While the prisoner’s principal attack is in disregard of the well-supported findings of fact, there are questions which lurk in the case which require our consideration. A question arises out of the fact that his arrest sheet in the Charlotte City Jail bore a notation that he was not to be allowed to use the telephone, and that no one was to be allowed to see him. Using that as a very substantial launching platform, Davis contends that he was held incommunicado and that attempts to contact counsel through his sister were frustrated by the police.

The District Judge found as a fact, however, that the notation on the arrest sheet was disregarded, and this finding has evidentiary support. During his confinement in Charlotte, Davis sought to see no one other than a sister, whom he had not seen for some twelve years. He did seek to contact her, and one of the officers assisted him when he encountered difficulty in locating her in the telephone directory. Even with that assistance, however, he was unable to ascertain her telephone number, so the officers, themselves, went in search of the sister.

They found her and told her that her brother was in the jail and wished her to come to see him. She responded that she would go to see him when she could, but she could not then leave her children. ' The sister testified in the habeas corpus hearing that she twice went to see her brother in the Charlotte City Jail, but each time was turned away. The District Judge did not believe her, finding, as the officers testified, that neither she nor anyone else was turned away.

Their testimony is the more readily believable in light of the fact that one of them had undertaken to assist the prisoner in his efforts to contact the sister by telephone, and, that failing, others personally conveyed his message to her. Surely they would not have gone to such length to convey to the sister the request that she go to see her brother if they intended to deny her access to him. There was also testimony that Davis had been informed by the police officers of his right to counsel. Davis made no request for legal assistance.

Indeed, even after seeing his sister, he let three months go by before undertaking to contact an attorney. This case is, therefore, far from the principal of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. In Escobedo, a suspect, not otherwise lawfully subject to detention, was being interrogated. During the course of his questioning he repeatedly asked permission to consult his lawyer, and his lawyer was present in police headquarters, insistently demanding access to his client.

One time, through opening doors, the lawyer and client actually got a glimpse of each other, but their persistent demands and requests to consult were as persistently refused until after a confession had been obtained. The Supreme Court held, of course, that the suspect should have been allowed to speak to his lawyer who was present for that purpose and who was actively asking, himself, to speak to his client. Denial of the right to consult his attorney was held, under those circumstances, to have been a denial of due process. Here, we have no such circumstances.

Davis, advised that he could consult an attorney if he wished, sought only to have his sister come to see him. The police did all that they could to assist him in the realization of that wish. When there was no request of legal assistance and when the police did all that reasonably might be expected of them to facilitate the prisoner’s seeing the one person he wished to see, it cannot be held that the police unreasonably deprived him of his right to counsel.

The notation on the arrest record creates suspicions in one’s mind, but such suspicions cannot overcome the positive evidence that the notation had no practical effect or influence upon what was done and that help rather than hindrance was offered to him in his one effort to contact someone outside the prison walls. The District Court’s acceptance of such testimony and its findings based upon it make the principal of Escobedo completely irrelevant to this case. Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, is equally inappo-site.

If the prayer which was said before Davis unburdened himself with the details of his crime was not so innocuous, it would give us concern. Whether, however, the idea of the prayer originated with Davis or with the officer, it was so bland that it cannot be said to have been coercive. Religious influence and religious exhortation preceding a confession have been thought not only unobjectionable but indicative of the trustworthiness of the confession.

Wigmore emphatically declares that since a contrary suggestion in an English case of 1823, religious exhortations have never “been regarded as vitiating a confession.” There is an interesting note written by a clergyman-law student in 1 Wash-burn Law Journal 415 on the role of the clergyman in the coerced confession. The author of that note agrees with Wigmore that the cases have not held confessions to be the product of intimidation though extracted by a clergyman’s invocation of the terrors of an eternal Hell if the Lord’s forgiveness is not sought and obtained on the basis of a complete confession.

The author thinks that such confessions should be recognized as having been coerced, and, perhaps, they may be now that it is recognized that coerced confessions are to be excluded from evidence however trustworthy they may appear to be. Here, however, the police officer was not the prisoner’s religious or spiritual adviser, and the little prayer invoking God’s blessing upon the two of them contained no hint of Divine punishment or suggestion of the cleansing power of confession. Davis appreciated the prayer, and the next day he told Dr. J. S.

Nathaniel Tross, a Negro minister who had served a congregation of which Davis and his family had formerly been members, that he had been moved by the prayer to make the confession. At the same time he told Dr. Tross, however, that he had been treated well and with kindness, that he had been properly fed and not mistreated in any way, and that the statement he had made was entirely voluntary. He seems to have been saying that the statement was the product of kindness and considerate treatment, of which the prayer was an outstanding example.

While the prayer may have moved him to speak, we cannot say, in disregard of the District Court’s findings, that it overcame his will. If prayer or other religious influences are to be held coercive so as to require the exclusion of a subsequent confession, the religious references, themselves, ought to be designed or calculated to so arouse the prisoner’s fears of a divine judgment as to overcome his resistance to present confession. The prayer here was not so designed, and nothing in it can be said to be reasonably calculated to have that result.

The contention which Davis advances that his detention became illegal when he was not earlier charged with the Cooper murder is quite unfounded. Unreasonable delay in the arraignment of a federal prisoner charged with a federal crime is prohibited. The genesis of the prohibition was not in the Constitution, however, but in the supervisory power of the Supreme Court over the administration of justice in the federal courts. This, the Court made plain when it announced the rule in McNabb, and subsequently demonstrated in holding that the McNabb rule is inapplicable to criminal prosecutions in the state courts.

The due process clause of the Fourteenth Amendment prohibits a state’s use of a coerced confession, but when the habeas corpus court considers a state court conviction, unreasonable delay in arraignment does not provide a mechanical answer. Such unreasonable delay is only one circumstance which, with all others, ought to be considered in arriving at an ultimate finding as to whether or not the confession was voluntary. Davis’s case is not helped by the fact that North Carolina law also requires arraignment of state prisoners without unreasonable delay.

If that requirement of state law was violated, it might give rise to state remedies, but it does not constitute a basis for habeas corpus relief in the federal courts. The Fourteenth Amendment imposes minimal standards for state criminal procedures. It does not prohibit a state from adopting more protective procedures and, when one does, strict compliance with the more fulsome state-created right does not become a matter of federal right or subject to protection in the federal courts. . - More importantly, there was here no unreasonable delay in the arraignment.

There was no violation of the state requirement or of the spirit of the Mc-Nabb rule. Davis was not taken into custody because he was suspected of having murdered Mrs. Cooper. He was arrested by the Belmont police because he was an escaped convict. Thereafter he was at all times held by the authorities under the judgment of conviction for assault upon which he was being held at the time of his escape. The immediate custody of the Charlotte police, with permission of the State Warden, was, in law, that of the Warden.

Clearly, Davis was not entitled to bail or to be released upon any terms or under any circumstances. His detention, therefore, during the investigation of the Cooper case was entirely lawful. This has been clearly held in a number of cases A convicted felon lawfully detained under a valid judgment is not immune from investigation of other crimes, and, when he becomes suspected of possible implication in other crimes than those for which he has already been convicted, he does not become entitled to release.

No rule of law forecloses reasonable interrogation of such a prisoner, though the interrogation is concerned with other possible crimes, so long as the interrogation, itself, is not so unreasonably pursued as to become coercive. Here, the police officers had no probable cause to charge Davis with the murder of Mrs. Cooper until he confessed it. Neither the spirit of the McNabb rule nor the North Carolina law requires that he be charged with a crime without probable cause to support the charge. When they had probable cause to charge him with the murder of Mrs. Cooper, they did so.

Under either rule, the beginning of the running of the time for arraignment could not be earlier than the discovery of probable cause for preferring the charge. When the prisoner is lawfully detained under some other charge, or, as here, under a previous conviction, his confinement is not made unlawful because he is suspected of having committed another crime under prolonged investigation.

Finally, it may be suggested that Davis should have been delivered promptly by the Charlotte police into the immediate custody of the State Warden, where he could mingle with a large, general prison population and where he would be not so readily available to detectives investigating the Cooper murder. The convicted prisoner, however, has no right to determine the place or the circumstances of his confinement or to complain that arrangements for his custody are made with regard for the convenience of officers investigating other crimes.

So long as the circumstances of his actual confinement cannot be said to have been coercive, and they reasonably have been found not to have been so here, they do not become coercive because someone may now think the prisoner would have been happier, or less likely to have confessed, had he been placed in the general population of a large prison at some other location. There have been isolated attacks upon the legality of custody by officers investigating some other crime than the one upon which the prisoner was then lawfully held in confinement, but they have been unavailing.

Thus, where a prisoner, lawfully held after arraignment upon charges of robbery and assault, was delivered into the custody of detectives investigating a murder, his custody by the detectives was held to be lawful. Another prisoner who had been confined in the federal penitentiary at Danbury, Connecticut, was transferred under a writ of habeas corpus ad testificandum to the House of Detention in New York, where he, subsequently, confessed the commission of another crime.

He attacked his confession, claiming, among other things, “that detention in the New York House of Detention was much more unpleasant than in Danbury,” but that circumstance did not vitiate the confession. Prisoners may, and undoubtedly do, have preferences between prisons and other penal institutions. The fact that one would have preferred to have been confined elsewhere, however, has not yet been held to have been a basis of exclusion of a confession made by him of his complicity in some other crime.

The circumstances of his actual confinement at the time of his confession and during the preceding period of interrogation and investigation are highly relevant, of course, but, if they are not in themselves coercive and the confession is otherwise voluntary, there is no basis for the application of an exclusionary rule. Here, as we noted at the outset, the District Judge has found that the confession by Davis of the Cooper murder was voluntary.

His ultimate finding is supported by subsidiary findings, and they, in turn, are quite adequately supported both by the evidence taken before him in the habeas corpus hearing and by the evidence taken in the state trial which resulted in the murder conviction. Upon the basis of those findings, the District Court quite properly concluded there was no constitutional infirmity in the state trial and the conviction was not in violation of any constitutional right. We conclude that the District Judge properly denied the writ.

There remains a moral question as to whether one of Davis’s mentality should be executed or whether his sentence should be commuted to life imprisonment. That is a matter of executive clemency, and the courts are powerless to prescribe the answer. The possibility of any such relief can be explored only with North Carolina’s Governor. Affirmed. . State v. Davis, 253 N.C. 86, 116 S.E.2d 365. . Davis v. North Carolina, 365 U.S. 855, 81 S.Ct. 816, 5 L.Ed.2d 819. . Davis v. North Carolina, E.D.N.C., 196 F.Supp. 488. . Davis v. State of North Carolina, 4 Cir., 310 F.2d 904. . Davis v.

North Carolina, E.D.N.C., 221 F.Supp. 494. . The District Court found that the request of prayer originated with Davis. The prayer internally and the testimony in the state court record support the finding, though the officer’s testimony at the habeas corpus hearing indicates that it originated with him, that is, that he asked Davis if Davis would like for him to pray after Davis had told him that Davis did not know how. Whether or not the suggestion originated with Davis, however, it is perfectly clear that he assented. .

There were a number of variations in Ms testimony in the habeas corpus court as contrasted with his testimony in the state court. In the habeas corpus court, for instance, he testified he was slapped and “smacked,” but his testimony in the state court, though covering in detail other contentions he makes, contains no such claim. . They also informed him of other rights, such as his right to remain silent, so the officers testified and the District Court found. . 3 Wigmore on Evidence, 3d ed. 1940 § 840. . Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. .

The author of the note in the Wash-burn Law Journal, mentioned above, suggests only that religious exhortations by clergymen should he suspect and then only when the clergyman’s apparent purpose is the production of a confession, even though the clergyman may sincerely believe that a confession is essential to Divine forgiveness and ultimate salvation of the prisoner’s soul. When there has been a prior relationship between the clergyman and the prisoner, justifying the conclusion that the prisoner looks upon the clergyman as his spirtual adviser, such religious exhortations may be all the more coercive.

Here, of course, there was nothing to indicate that Davis looked upon the policeman as his spiritual adviser, and there is nothing else to indicate that the bland little prayer was calculated to break down his resistance. The very fact that he asked to be allowed to talk to that officer alone indicates a pre-existing personal confidence, but not a religious one, and a readiness to confide in that one officer things he had been unwilling to tell others.

The circumstances here are in strong contrast to the calculated use of religious doctrines to extract a confession disclosed in the eases discussed in the Washburn Law Journal note and suggested in the opinion of the Supreme Court in United States v. Carignan, 342 U.S. 36, 40, 72 S.Ct. 97, 96 L.Ed. 48.

The Carignan opinion, at least, leaves open the possibility that aggravated use of religious influence for the purpose of extracting a confession may be held to be coercive; it does not suggest that in this unaggra-vated situation, this Court may disregard the District Court’s finding that the prayer was not coercive. . McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. . Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86. . Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481. . Tyler v.

United States, 90 U.S.App.D.C. 2, 193 F.2d 24. . United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97; Rademacher v. United States, 5 Cir., 285 F.2d 100; Pependrea v. United States, 9 Cir., 275 F.2d 325. . Tyler v. United States, 90 U.S.App.D. C. 2, 193 F.2d 24. . United States v. Gottfried, 2 Cir., 165 F.2d 360.