SCHNACKENBERG, Circuit Judge.
Lloyd Eldon Miller, Jr., petitioner, has appealed from an order of the district court dismissing a petition for a writ of habeas corpus, as amended, filed by petitioner, in which Frank J. Pate, warden of Stateville branch of the Illinois State Penitentiary, was named as respondent. From the amended petition it appears that petitioner is in the custody of respondent awaiting execution pursuant to judgment and sentence of the Circuit Court of Hancock County, Illinois. It charges that at his trial his rights under the due process clause of the fourteenth amendment to the constitution of the United States were violated, as more particularly hereinafter referred to.
Petitioner sets forth that he has exhausted his remedies in the courts of Illinois.
On January 11, 1956, petitioner was indicted in the Circuit Court of Fulton County, Illinois, for the murder of Janice May, aged eight years. He pleaded not guilty and the case was tried, resulting in a mistrial, and thereupon a change of venue was granted on defendant's motion to Hancock County, where a trial started on September 10, 1956. Defendant was found guilty by a jury which imposed the death penalty. A motion for a new trial was denied November 15, 1956, and judgment was imposed.
1. In its essential aspects, there is no denial on this appeal that petitioner committed the crime charged or that the evidence, aside from his confession, so proved. On the other hand, the appeal does raise the question as to whether petitioner was deprived of a fair trial because of the introduction of his confession of that crime.
2. It is in view of this lack of petitioner's credibility that we now consider his testimony to support his claim of coercion. From our own examination of the abstract of the entire state trial court record submitted by petitioner to the district court, we are completely convinced that petitioner's confession was in no way a result of coercion. In this court the question of whether established primary facts underlying this confession prove that it was coerced or voluntary cannot rest on the decision of the Illinois Supreme Court. The responsibility of answering the question now rests upon us. Brown v. Allen, 344 U.S. 443, 507,
Petitioner's charges that all the officials who dealt with him displayed a harsh and belligerent attitude which was manifested when they shouted at him, cursed him and uttered numerous threats, were expressly and completely denied by all who had anything to do with his custody and questioning. The Illinois Supreme Court held that in a case such as this the trial court, who had the opportunity to see and hear the witnesses, is the one most qualified to judge their credibility. That court entertained a moral certainty that petitioner knew what he was signing and that the evidence did little to establish that he capitulated through fear, hope or purported emotional upset. We have thoroughly considered the evidence in the record and agree with the foregoing results reached by the Illinois Supreme Court.
Moreover, we are impressed with the fact that the character and prior experience of petitioner indicated that he had
Petitioner was not a weakling who would be expected to readily succumb to pressure. The crime which he had just committed showed a ruthlessness
3. Petitioner contends that the most important constitutional issue relates to his offer of the testimony of a psychiatrist "to provide evidence concerning Petitioner's `power of resistance' to the pressures of police interrogation which were exerted upon him during the course of his incommunicado detention prior to his confession".
Petitioner also contends that "either psychiatric evidence of Petitioners `power of resistance' was relevant to Petitioner's Fourteenth Amendment claim of coercion, or it was not." He also insists that his due process rights were violated because the trial judge refused to hear competent testimony by an examining psychiatrist. We believe that the real question confronting us is, was Dr. Donald Sweezey, the tendered psychiatrist, competent to express an opinion on the precise question which was to be put to him by defense counsel. Actually, that question would have called for an answer to an ultimate question of fact which it was the exclusive province of the trier of facts to give, as we shall now point out.
On the trial, petitioner's counsel made two offers of proof, both out of the presence of the jury.
In the first offer he stated:
In the second offer, he stated that if permitted,
Both offers were denied by the court.
It is well to note that, while the premise for the findings assumed in the second offer of proof is stated to be "based on facts which are now adduced as part of the record in this cause and which were laid in part as a foundation for the testimony" of Dr. Sweezey, without being otherwise identified, this offer of proof would be subject to rejection according to the practice in most American courts, which recognize the proper method to be the submission of a hypothetical question, so that it is known to the court and jury what facts the expert witness has in mind when he gives an opinion.
The proper procedure is recognized in People v. Black, 367 Ill. 209, 10 N.E.2d 801 where in a murder trial, a medical expert based his opinion, in part at least, on matters reported to him. In reversing a conviction, the court said, at 211, 10 N.E.2d at 802:
To the same effect, see 23 C.J.S. Criminal Law § 883, p. 480.
However, we shall dispose of this appeal principally on other grounds.
As to the first offer of proof, insofar as it pertains to Dr. Sweezey, it indicates that he would testify that he examined petitioner twice in the county jail and, based thereon, he had an opinion that petitioner would, under slight inducement and pressure of interrogating officials, have signed "the purported confession in this cause" without regard to whether he was guilty or the document was true. This offer indicates that the doctor was ready to so testify without even knowing or considering the facts leading up to the signing of petitioner's confession. Such incredible testimony of an expert witness, without substantial factual basis, was obviously inadmissible.
As to the expert witness, the court did not err in denying the first offer of proof.
Although the court rejected petitioner's first offer of proof, which in part indicated he would call certain lay witnesses to testify to facts of erratic conduct by petitioner, the record shows that three of these witnesses were called by petitioner and their evidence pertaining to this facet was admitted. He called no more of them. Thus his mother testified that he failed in the 5th grade, that he returned from the army in 1947 and "then he started leaving, going different places, and then coming back home." He had jobs at several places which she named. He didn't stay very long any place or at home. He came and went. She accused him of roaming around.
His father, bearing the same name, testified that petitioner failed in the 5th grade and he got his son a job, but he didn't stay very long. He worked at International Harvester for 2 or 3 months, then went to Georgia. He came back and "took off" until September 1955 when he hitchhiked back home with only a suitcase containing blue jeans and other clothing. Because it was cold he wore one of his father's jackets. He worked for a farmer 3 or 4 days and worked as a cab driver in Canton until November 26th. His mother washed his clothes.
Lawrence J. Johns, a defense witness, testified that he was a taxicab owner and had employed petitioner from September 16, 1955 to November 26, 1955. Although petitioner called Johns as a witness, he was asked no questions pertaining to the alleged erratic conduct of petitioner, as suggested in the first offer of proof.
Petitioner in his own behalf testified without restriction.
Petitioner's counsel attempts to support his position as to his second offer of proof by citing Illinois decisions. It will be noted that in the case at bar defense counsel did not seek by Dr. Sweezey's testimony merely to establish the mental condition of petitioner. This was so because neither insanity nor any other mental illness was an issue in this case, as it was in all of the cases cited by petitioner in his brief in support of his contention that Dr. Sweezey's offered proof was competent. Certainly a qualified witness might properly express an opinion as to the mental condition of petitioner. It is this proposition that is recognized by the Illinois cases which petitioner's brief cites.
We add to this list the following language from an authority selected by petitioner's counsel, People v. Geary, supra 298 Ill. at 246, 131 N.E. at 656:
For that reason, no error was committed in the rejection of the second offer of proof.
4. What we have already said in this opinion leads to the conclusion that the principles announced in Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed. 2d 246, Stein v. New York, supra, Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, and Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed. 2d 1037, have not been violated in this case.
5. Petitioner represents that after the jury had retired to deliberate on its verdict, "a member and members" of said jury requested further instructions be given to the jury, that the request was made through a bailiff to the trial judge, who directed the bailiff to inform the jury that he had given instructions and could give none further, that the bailiff so informed the jury, that all of the above occurred outside the presence of petitioner and unknown to him or to his trial counsel.
Petitioner cites Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674, in support of his contention that he had an absolute right to be present in court, to know the nature and fact of any communication between judge and jury, to object thereto or to take such position with respect thereto as the exigencies of the moment might dictate, that this "secret communication" materially affected petitioner's rights to such a great degree that the state court's denial to him of the right to be present violated the due process clause of the fourteenth amendment.
In the Snyder case, at 105-106, 54 S.Ct. at 332, the court said:
At 107, 54 S.Ct. at 333, the court stated:
At 122, 54 S.Ct. at 338, the court concluded:
Petitioner has failed to show that there was any communication between the judge and the jury. He has succeeded merely in demonstrating that the judge refused to communicate further with the jury after the close of the trial. This did not constitute a deprivation of due process. The law does not require and reason does not suggest such a result.
6. Over a month before the date set for the trial of defendant, a contempt proceeding was instituted in the Circuit Court of Fulton County against one of petitioner's attorneys, for an attempt to intimidate Betty Baldwin, a state's witness heretofore referred to. A judge, other than the trial judge in this case, issued a rule to show cause returnable September 6, 1956 in Fulton County. On the latter date, petitioner moved for a continuance of his case in Hancock County to which it had been transferred on June 22, 1956, upon the ground that because of the pendency of the contempt proceeding he could not receive a fair trial, which motion was denied.
It further appears that the contempt proceeding was not pressed to a culmination prior to the completion of the trial of petitioner.
We cannot agree with his contention that "inherent prejudice" to him has been shown by these facts to such a degree that it constitutes denial of due process of law.
For the reasons herein stated, the order of the district court from which this appeal was taken is affirmed.
DUFFY, Circuit Judge (concurring in the result).
In my view, the majority has reached the correct result. However, there are statements in the opinion with which I do not agree and by which I do not wish to be bound.
It seems to me a complete non sequitur to say that because a man has committed a fiendish murder that he thereby demonstrates or proves that he is immune to all pressures and coercions which may be applied after he had been placed in custody.
Time after time the United States Supreme Court has given relief to defendants in brutal murder cases because of coercion that had been applied to such defendants after they had been taken into custody. I can recall no Supreme Court opinion where the Court went into the details of the crime in order to determine whether the defendant was such an individual as to be subject to coercion.
In Leyra v. Denno, Warden, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948, petitioner a 50-year old man, was charged with murdering his parents by beating them with a hammer. This crime could certainly be characterized as brutal and ruthless. The Supreme Court reversed the denial of an application for habeas corpus holding the confession elicited by a state-employed psychiatrist had been obtained by coercion in violation of the due process clause of the Fourteenth Amendment.
In Reck v. Pate, Warden, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, the brutal murder of a Chicago physician was involved. In Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, the offense was described as a "crime of community-disturbing violence." In these cases the Supreme Court held the confessions obtained by the police were involuntary because of the coercive methods used. In none of these opinions is there a consideration of the details of the crime itself as a factor indicating coercion or lack of coercion.
Many cases could be cited where the Supreme Court has reversed convictions because of the admission into evidence
Here again, it apparently never occurred to the Supreme Court that the details of the crime and a narration of the injuries inflicted would be a factor in determining whether the defendant would be subject to coercion.
In my judgment, it adds nothing to the force or validity of the argument made in the majority opinion as to immunity from coercion, to narrate in minute detail the lurid and grisly details of the injuries suffered by the little girl, the innocent victim.
She then testified,
"I said, `yes,' and he started talking to me about what he knew of the case and I listened and made comments. * * * First he asked me if I knew about the little girl and I said, `Yes, I did,' I had heard about it, and he asked me if I knew her and I said no, that I didn't know her. He then continued to say that he had seen where it had happened. * * * He was telling me, explaining to me what the little girl looked like. * * * He says, `I don't see why any one would do anything like that.' I said, `No, I feel that anybody that would do something like should be boiled in oil.' He said, `No, I don't think they should be that rough on him.'"
She further testified that after she got to her brother's house,
"We sat there for a few minutes in the cab and he was talking about the same — about Janice May — and he spoke a few minutes on the same — about the same thing he had said before. I went into the house then and brought my little nephew out because Lloyd had never seen him, and he didn't like it very well, so I took the baby back in the house. I came back out and he usually opened the door for me, but he didn't that time, and I got in and sat down and he was looking straight ahead and didn't say anything for a few minutes and so I said, `Lloyd, what is the matter?' Because he had acted so funny about my nephew. So, he just sat there and looked for a moment and then he turned around and looked at me and he went to sigh and he says. `Betty, you know I did it.' * * I just sat there and stared at him sort of dumbfounded. * * * He says, `Well, they will never get me because I got rid of the things.' I didn't know what he meant and I didn't say anything. * * * He says, `Betty, why do people do things they are ashamed of?' I said, `I don't know.' * * * He asked me to leave with him that night. I tried to explain to him that neither one of us had the money to leave at that time and he still wanted to leave. * * * I didn't know what to say to him so I started to get out of the cab. I thought it was the best thing to do, and he reached over in front of me and got the door handle and he said for me to sit still. He said, `If you say anything, the same thing will happen to you,' * * *
There is no showing that psychiatrists of the Behavior Clinic express any opinion to the judges on any issue in any case, except as to the sanity question submitted.