Appeal from the
United States District Court for the Northern
District of Texas.
Before RUBIN, KING, and
HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit
Judge:
Samuel Christopher Hawkins
represents himself in this court, urging that his
conviction of capital murder and sentence of death
by a Lubbock County, Texas, jury should be set aside
for three reasons. He argues that his "trial was had
by use of perjured testimony[,] ... [t]he confession
was extracted and obtained in violation of
petitioner's right not to be compelled to give
evidence against himself [, and] ... [t]he evidence
is insufficient to sustain the conviction and
verdict of the jury." We are persuaded that the
contentions are without merit and that the district
court properly denied Hawkins' petition for federal
habeas relief, and we affirm.
* Hawkins was convicted of
capital murder for killing Abbe Rodgers Hamilton,
while attempting aggravated rape. The jury answered
the special questions required by Texas law,
and Hawkins was sentenced to die. In April 1978,
Hawkins' motion for new trial was denied. In July
1980 the state trial court, following a hearing,
granted Hawkins' request to represent himself on
appeal but authorized appointed counsel to file a
brief as amicus curiae. Hawkins raised fifteen
separate grounds of error, and appointed counsel
added seven separate grounds.
The Court of Criminal Appeals
rejected all grounds of error except appointed
counsel's contention that Hawkins was entitled to a
competency hearing before his trial. The court
remanded the case to the trial court for a "retrospective
competency determination," with instructions to
order a new trial if a retrospective determination
was not possible or if Hawkins was found to have
been incompetent to stand trial.
Both the state and Hawkins sought
rehearing, and on August 9, 1983, Hawkins filed with
the Court of Criminal Appeals a request to waive the
competency issue. Finally, on October 19, 1983, the
court accepted the waiver and affirmed Hawkins'
conviction.
Hawkins did not seek review by
the Supreme Court and has not requested any state
habeas corpus relief. While his conviction was
pending before the Court of Criminal Appeals,
Hawkins petitioned for federal habeas relief from
the Northern District of Texas, but suffered a
dismissal for want of exhaustion of remedies. He
filed a second petition for federal habeas relief in
November, 1983. The federal district court rejected
his request for stay as premature, but on April 30,
1984, after formal sentencing by the state court,
granted the stay now in effect.
After waiting for the Supreme
Court's decision in McKaskle v. Wiggins,
the federal district court ordered a competency
hearing to assure Hawkins' competency to decide to
proceed without a lawyer. After his examination at
the federal hospital in Springfield, Missouri, a
magistrate conducted an evidentiary hearing and
concluded that Hawkins was, as he urged, competent
to decide.
The magistrate then warned
Hawkins of the risks of proceeding without counsel
and questioned him on the record to confirm that he
still wanted to do so. Satisfied of his competency
and wishes, the magistrate granted Hawkins' request
to discharge appointed counsel.
The magistrate gave Hawkins leave
to amend to assert any additional claims at any time
before January 15, 1985, later extended to August
19, 1985. Hawkins filed no additional claims. On
September 30, 1985, a magistrate filed an order
identifying from Hawkins' papers what he believed to
be seven grounds of error and recommended that the
district court dismiss for want of exhaustion.
Hawkins disagreed, insisting that he had only the
following four points of error:
1. The trial court erred in
committing aggravated (sic) perjury, also committed
with and agreed to by the State's Attorneys Steve
Cross and Linda Walden, Defense Counsels (sic)
Russell Busby and Gene Storrs.
2. The Trial Court erred in
introducing the confession into evidence over
Petitioner's objection and motion to suppress.
3. The Court erred in sentencing
Petitioner to death because the evidence is
insufficient to sustain the Jury's verdict.
4. The State did not prove the
allegations in this case and they are left unproved.
The State responded by waiving
any failure to exhaust state remedies.
In a lengthy report, the
magistrate, without an evidentiary hearing, rejected
the four arguments and recommended dismissal of the
habeas petition. The district court dismissed the
habeas petition on October 21, 1986, over the
written objections of Hawkins, but granted Hawkins'
request for a certificate of probable cause and stay
of execution pending appeal.
This court then informed Hawkins
by letter that it would appoint counsel for him on
appeal and warned him of the risks of representing
himself. He replied in writing, again insisting that
he did not want a lawyer. To date, Hawkins has
represented himself in this appeal.
II
* We review the sufficiency of
the evidence to support a state criminal conviction
solely by a constitutional measure. The question is
"whether, after viewing the evidence in the light
most favorable to the prosecution, any rational
trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
State law defines the substantive elements of the
offense and the state's determination that the
evidence was sufficient is entitled to "great weight."The
trial evidence is summarized in Hawkins v. State.
As that court described the events:
William Hamilton testified he and
his wife, Abbe, lived in Borger. On May 2, 1977,
Hamilton left his home late in the evening in order
to report to work by 11:30 p.m. Before Hamilton left
for work, he and his wife had sexual intercourse. At
the time he left, Hamilton's wife was in bed,
clothed in a gown and a pair of panties. When he
returned home the following morning at 9:00 a.m.,
Hamilton found his wife still asleep in the bed.
He then left the house for
approximately 45 minutes. Upon returning, Hamilton
found his wife who was six months pregnant lying in
the blood-soaked bed with her hands and feet bound
with pieces of red and white cloth.
Hamilton immediately attempted to
call an ambulance but discovered that the phone line
had been cut. He then went to the home of a neighbor,
Hollis Mahon, who in turn notified authorities of
the discovery of Hamilton's wife. Grace Mahon
testified that after Hamilton used her phone, she
went to Hamilton's house and saw his wife's body.
She related that her efforts to locate a pulse were
unsuccessful.
Officer Bruce Lemery, of the
Borger Police Department, testified he was the first
officer to arrive at the scene of the offense. The
victim had been stabbed numerous times with several
severe wounds about the neck. Although the victim
was still clothed in a gown, she was no longer
wearing panties. A pair of panties was found a short
distance from the bed.
Sheriff Lon Blackmon, of
Hutchinson County, testified he took custody of
various items of evidence found at the scene of the
offense. Among these items were the panties, two
napkins found underneath the victim's body and the
pillowcases off the bed. Blackmon sent these items
to the Federal Bureau of Investigation (FBI)
laboratory in Washington, D.C., for analysis.
Special Agent Robert Spalding, of
the FBI, testified that he worked in the field of
forensic serology which is the study of blood and
body fluids in stain form. Spalding related that
tests run upon the panties he received from Blackmon
proved positive for the presence of seminal
materials or stains.
Officer J.D. Reimer, of the
Lubbock Police Department, testified that on March
7, 1978, he collected several hair samples from
appellant's head. Reimer turned these samples over
to FBI Special Agent Robert Neill.
Neill related that he was a
specialist in the field of forensic microscopy which
is the study of fibers, hairs and textiles using
microscopic methods. An examination of the napkins
found under the victim's body revealed numerous
human hairs. Neill found some of the hairs on the
napkin to have been of a "negroid origin." A
comparison of the hair samples received from Reimer
and those found on the napkin showed all of the
hairs to have the same range of microscopic
characteristics.
Neill's analysis revealed twenty
similarities between appellant's hair and the hair
found on the napkin at the scene of the offense. The
comparison between the hairs did not show any
dissimilar characteristics. Neill testified that it
was his opinion that the hairs found on the napkins
had come from appellant or some other person with an
identical range of hair characteristics.
The victim's husband, William
Hamilton, was recalled to the stand and testified
that no blacks lived near his home. He further
stated that he had never had a black person enter
his home.
Christine Cantrell testified she
lived near the Hamilton home. At 9:30 a.m. on the
morning of the offense, Cantrell noticed a light two-tone
car in the victim's driveway. The car she saw was of
the same type which was later discovered at
appellant's home. Cantrell further stated that she
saw a tall slender black man standing next to the
car in the victim's driveway.
Dr. Jose Diaz-Esquivel performed
an autopsy upon the deceased. His examination
revealed four wounds to the neck which appeared to
have been made with a knife-like instrument. One of
the wounds was approximately one and three-quarters
inches deep and had severed the victim's jugular
vein. Diaz-Esquivel stated that the victim had bled
to death as a result of her neck wounds. Tests
revealed that the victim had intercourse within
twenty-four hours of her death.
Larry Clark testified he was
appellant's supervisor at the Iowa Beef plant. The
plant was shown to be approximately fifty miles from
Borger. Appellant reported for work at 2:40 p.m. on
the day of the offense. Clark stated that appellant
was employed as a trimmer on a fleshing crew at the
plant. Appellant's work called upon him to be semi-skilled
in the use of an instrument called a skinner's knife.
Detective James LaFavers, of the
Amarillo Police Department, testified that appellant
was arrested for an unrelated offense on June 30,
1977. Following his arrest, appellant signed a
written statement concerning the instant offense. A
portion of that statement is as follows:
"My name is Samuel Christopher
Hawkins ... A short while ago, I can't remember
exactly when, I drove to Borger, Texas with a friend....
We went in my friends car. The man I was with met
one of his old girl friends and stayed with her so I
took his car. I started looking around Borger for
somebody to rape. I drove to the south part of
Borger. I started checking doors and came to a house
that had one open. This house was facing west, and
it had a drive way that went north and south. The
house was a red color and they were building a room
on the end of it. There was a red Monte Carlo, I
think it was about a 1976 model, parked in the
driveway. There was also another small car in the
driveway and I think it was a Pinto or a Vega. I
parked my car in the area of the driveway, right
behind the Monte Carlo and Pinto. I checked the door
and it was open. I walked straight into a bedroom
that seems like it was kind of behind the kitchen
and to the left. I had a hunting knife that I had
bought at the T.G. & Y. store on 24th. and North
Grand st. (sic) in my hand. I noticed a woman lying
on a bed on her side. I put the knife to the womans
throat and she jumped. When the woman jumped, the
knife went into her neck. The woman got hysterical
and reached up and felt the blood on her neck and
started screaming 'give me a towel, give me a towel.'
When the woman got hysterical, I did to. I started
stabbing the woman in the neck but I don't know how
many times I stabbed her. When the woman became
hysterical, she grabbed the telephone and was going
to call on it. I guess this is when I cut her again.
The woman was holding the phone, and I took the
knife and cut the wire. I then went into the dining
area and got some red and white napkins. The red and
white design was in squares. I made an attempt to
calm her down and tie her up. I had cut the napkins
with the knife that I had and used these to tie her
with. The woman wouldn't give up so this is when I
cut her again. I couldn't tie the woman up as such
so the knots stayed loose. I did not think that the
woman was dead when I left but I didn't know for
sure. I did not rape this woman but I intended to
when I went in the house. I got scared when I
stabbed the woman and this is why I didn't rape her
and I ran out of the house...."
Under the Texas Penal Code,
intentional murder while attempting aggravated rape
is a capital crime.
A person commits aggravated rape either (1) by
causing serious bodily injury or attempting to cause
death or (2) by rape by threats of death, serious
bodily injury, or kidnapping.
The offense of attempt is established by evidence of
specific intent to commit aggravated rape and "an
act amounting to more than mere preparation."
Hawkins argues that the evidence
was lacking in that his confession did not "mention
the killing of Abbe Rogers (sic) Hamilton ... [and]
... [n]o one is named in the confession or statement[,]
... [and there is] ... no evidence of attempted
sexual intercourse without ... consent[,] ... no
evidence to show that she was compelled to submit by
the use of a threat[,] ... no weapon was introduced
to show what the deceased ... was killed with."
Hawkins' argument ignores the
jury's right to draw reasonable inferences from the
evidence. A review of the facts recited by the Texas
Court of Criminal Appeals makes plain that the
evidence was strong indeed. Hawkins' confession
placed him at the scene. The location of the body,
the cuts about the neck, the placement of the
napkins, and the similarity of hair samples
collectively confirm Hawkins' confession. There was
also evidence that the victim's panties had been
removed and were found near the bed. Moreover,
Hawkins admitted that he intended to rape her. This
was sufficient to meet the constitutional test, and
there our inquiry stops.
III
Hawkins urges in his second point
that the "confession was extracted and obtained in
violation of petitioner's right not to be compelled
to give evidence against himself." The argument has
three related parts: that he was induced to confess
by promises of psychological and psychiatric help or
treatment through the court system, that he was
denied counsel, and that he was not given his
Miranda rights--all in an interrogation away from
family and friends by up to eleven police officers,
which continued from his arrest at 11:30 a.m. on
June 30 until the next morning at 6:00 a.m.
The state trial court, after an
extensive hearing
before trial, denied Hawkins' motion to suppress
confession. It found that Hawkins "was not coerced
into making any statement by any force, threats,
persuasion or promises or any other improper
influence" and that he "waived his right to be
represented by counsel." The Texas Court of Criminal
Appeals affirmed this ruling.
The ultimate question of the
voluntariness of a confession is due independent
federal review,
but with "great weight to the considered conclusions
of a coequal state judiciary."
Questions of fact determined by the state court, and
subsidiary to the conclusion, enjoy the presumption
of correctness conferred by
28 U.S.C. Sec . 2254(d).
We turn to those facts.
According to the state's
witnesses, including the arresting and interrogating
officers, Hawkins was arrested at his home on June
30 at approximately 11:30 a.m. He was taken directly
to the Amarillo, Texas police station where he
received Miranda warnings.
The officers testified that they suspected that
Hawkins was responsible for a series of rapes and
murders that had occurred in the area and asked
Hawkins about them.
The officers testified that
Hawkins was first interviewed by Detective Garner
around noon but made no statement at that time and
that he was booked into city jail at approximately
3:00 p.m. where he remained until approximately 6:00
p.m., when he was put in a lineup. The officers
testified that Hawkins never requested a lawyer, but
twice talked with his wife by phone and once visited
alone with her in mid-afternoon. There was testimony
that Officer Kirkwood questioned Hawkins for
approximately 30 minutes at around 9:00 p.m. and
that Lieutenant Jimmy Boyston interviewed him until
approximately 10:40 p.m.
A black officer, Isaiah Garrett,
then spoke with Hawkins alone, and Hawkins indicated
that he wanted to talk. Detective James LaFavers and
Captain Smith testified that they again warned
Hawkins of his Miranda rights before taking his
statement. They also testified that they turned a
tape recorder on around 11:30 p.m., but it taped for
only one hour. Sometime during the early morning
hours, the officers gave Hawkins a carton of milk
and a piece of pie. Hawkins ultimately confessed to
three offenses and signed three statements typed by
a police officer. The second statement, approved by
Hawkins at 4:05 a.m., described the murder of Abbe
Hamilton.
The officers testified that they
gave Hawkins a hamburger and french fries in mid-evening.
Officer Garrett testified that Captain Smith asked
Hawkins if he was tired and wanted to resume the
next day after he had slept, but that Hawkins
replied that he could not sleep and wanted to get it
over with. All of the officers denied making any
promises to Hawkins regarding his prospects for help
from the courts or others for any mental illness.
Hawkins' testimony about his
confession was quite different. He testified that he
was not warned of his rights and was denied counsel
despite his repeated requests for a lawyer. Hawkins
testified that Detective Eaton told him he was
schizophrenic, that Officer Garrett told him he was
sick and that "they" wouldn't hold it against him
but would get him help; that Detective LaFavers told
him that if he confessed he would get treatment. He
admitted that he was allowed to telephone his wife
on two occasions and meet with her in mid-afternoon.
Hawkins testified that he asked his wife to contact
a local lawyer named Broadfoot.
Broadfoot testified that Hawkins'
wife called him in late evening, that he called the
station sometime after 10:30 p.m., and that he was
told that Hawkins was suspected in some area rapes
and murders. Broadfoot explained that he then
reported this to Hawkins' wife, but he was not hired.
The Justice of the Peace of
Potter County testified that his normal hours were
from 8:30 a.m. until 5:00 p.m. but that he
occasionally arraigned prisoners at other hours. He
explained that he would ordinarily appoint counsel
at arraignment if a prisoner was indigent. He
testified that Hawkins first appeared before him at
2:35 p.m. for a bond hearing with counsel.
In short, the state trial judge
was presented with a "swearing match." He believed
the state's witnesses. The Texas Court of Criminal
Appeals upheld these findings.
The federal district court found the findings fairly
supported by the record. We also are persuaded that
the factual findings are supported by the record.
Accepting these subsidiary facts, we have considered
independently the ultimate issue of whether Hawkins'
confession was voluntary. We are persuaded that it
was.
Hawkins' main contention is that
he was induced to confess by promises of help for
his "illness." Toward the beginning of the recorded
portion of Hawkins' confession, Detective LaFavers
made the following statement:
LAFAVERS: Mr. Hawkins its a ...
you know a lot of the problem in life is the fact
that you have the ability to admit that problem to
yourself. You know its a its not as much what you
admit to others as it is being of the personality
that you can admit it to yourself and I think you
are doing it now and I think that you are probably
overcoming a lot of the problem that you have been
suppressing over the years. Its ... Its something
that I can understand. It a ... It's something that
you yourself can't hold yourself at fault for. It a
... It is something that occasionally happens to
some of us, but its nothing that can't be helped.
Its something that we can help you with and we'll
try. We will do that. We understand what your
situation is, we do. We're not here to in any way
punish you or criticize you because it is
understandable what your situation is.
Then, toward the end of the taped
portion, after Hawkins had confessed to a series of
rapes and attempted rapes and as the officers were
preparing a typed statement for Hawkins to sign, the
following exchange took place:
HAWKINS: Will they sentence me to
die for that?
LAFAVERS: Huh?
HAWKINS: Will they sentence me to
die for that?
LAFAVERS: Sam, to be honest with
you I would ... I would think that the courts in
your situation wouldn't
be very lenient. I really do. I think that they will
observe the fact that you need help ... you're
trying to seek that help already psychological--psychiatric
help and a ... I think they would recommend a
psychiatrist. Okay.
GARRETT: Sam, this is a sickness
that started when you was a kid.
LAFAVERS: The thing to do Sam--this
drive that you are talking about is something that
has been eating at you and any time you have a drive
that eats at you with the severity that this was. We
are talking about sickness. Its nothing that gets ..
its like .. you know. It's just as real to have an
illness of this type and when you really have a
possession of this type and it happens to several
people. You're not alone in this. It ... it happens
to thousands and thousands of people so don't be a
... ashamed of the fact that your illness happens to
be mental instead of physical because this is not
more your fault than if you had caught cold.
HAWKINS: But why me?
In earlier proceedings, there was
some disagreement over whether Detective LaFavers
had said "would" or "wouldn't." The Texas Court of
Criminal Appeals described the tape as using the
word "wouldn't" but did not suggest it was resolving
a conflict. The federal district court also found
that LaFavers had said "wouldn't." The "to be honest
with you" would seem to lead more naturally into an
"I wouldn't"; however, the "I really do" would seem
to follow more naturally from an "I would." We
cannot say that the federal district court's finding
is clearly erroneous and that is the applicable
standard of review; however, even assuming arguendo
that LaFavers did say "would," such a finding would
not alter the outcome of this appeal.
For, when viewed under the
totality of the circumstances, we are persuaded that
Detective LaFavers' comments did not cross the line
between expressions of sympathy and kindness and
promises of leniency. "A promise is not the same
thing as a prediction about future events beyond the
parties' control or regarded as inevitable."
When viewed from Hawkins' perspective, LaFavers'
statements cannot be deemed to have included a
promise of a benefit that, in Hawkins' eyes,
LaFavers had the power to either grant or withhold.
On the contrary, LaFavers' remarks were carefully
couched in terms of his personal opinion--"I would
think." Whether the officers overreached is not
answerable by a process of semantical categorization.
Rather, the question is whether the language used
under all the facts and circumstances would lead
Hawkins to reasonably believe that he would not be
held criminally responsible or put to death.
As did the court in Miller v.
Fenton, we view the statements as "a means of
convincing [Hawkins] that [LaFavers] was sympathetic,
no matter what the state's reaction might be."
There, the court interpreted statements such as "you
are not responsible" and "you are not a criminal" to
mean "In my eyes, you are not responsible or a
criminal and therefore you should relieve your
conscience by talking to me, who understands you,"
and we do the same.
Although we recognize that under
Texas law, an oral confession is inadmissible and
that these statements were made before Hawkins
signed a written confession, Hawkins already had
confessed to a capital crime before he asked whether
he would be sentenced to die, and we thus find from
the record an evidentiary basis for the district
court finding that the misrepresentations were not
the catalyst for Hawkins' willingness to confess.
As for LaFavers' earlier outright
promises of help, a promise of "help" might,
arguably, be heard to mean that a defendant would
receive psychiatric counseling in lieu of
imprisonment. However, LaFavers made no direct
promise of leniency but only a direct promise to get
Hawkins help, which could be considered at most an
implication of leniency, and "indirect promises do
not have the potency of direct promises."
In Bram v. United States,
the Supreme Court held that a confession may not be
" 'extracted by any sort of threats or violence, nor
obtained by any direct or implied promises, however
slight.' "
However, the Bram test "has not been interpreted as
a per se proscription against promises made during
interrogation,"
and the test has been tempered by subsequent
holdings that, depending on the totality of the
circumstances, certain representations will not
render a confession involuntary.
We are persuaded by the totality
of the circumstances that LaFavers' statement falls
within the spectrum of permissible representations.
Hawkins knew of his Miranda rights.
Although the interrogation lasted into the early
morning hours,
Hawkins himself made the decision to "get it over
with" rather than to return to his cell for rest,
and he was not deprived of refreshment. We cannot
say that the interrogation was "so prolonged and
unremitting, especially when accompanied by
deprivation of refreshment, rest or relief, as to
accomplish extortion of an involuntary confession."
Furthermore, Hawkins was in no physical discomfort.
There is little doubt but that
the officers were hoping for psychological advantage
by their tactics, such as sending in a black officer
to play to Hawkins professed dislike for "honkies"
and their studiously relaxed questioning and
expressions of understanding. However, there is
nothing inherently wrong with efforts to create a
favorable climate for confession. Neither "mere
emotionalism and confusion,"
nor mere "trickery"
will alone necessarily invalidate a confession.
Although LaFavers' statements
undoubtedly contributed to Hawkins' urge to confess,
the sum of the events are not such that those
statements would have produced "psychological
pressure strong enough to overbear the will of a
mature, experienced man."
Indeed, Hawkins was assertive enough and intelligent
enough to demand the anonymity of the person whose
car he utilized in the Hamilton murder. We are not
persuaded that the confessions were not voluntarily
given, and we turn to Hawkins' final point.
IV
Hawkins urges that the state
knowingly offered perjured testimony. This argument
revolves around the interpretation of the recorded
portion of Hawkins' interrogation. Hawkins argues
that the tape demonstrates that the officers lied at
trial when they denied promising psychiatric and
other assistance. The state court rejected this
argument concluding that "[t]here is nothing in the
testimony of Garrett, nor elsewhere in the record to
show that any part of his testimony was false or
that the State knew of and conspired to present any
alleged perjury."
The state trial court and jury, given the primary
task of deciding the facts, accepted the credibility
of the officers.
Much of the debate over the use
of perjured testimony compares the testimony of
Detective LaFavers in which he denied promising help
for Hawkins with the tape recording of the
interrogation. We are persuaded that Hawkins has
failed to demonstrate any knowing use of false
testimony by the State. The credibility of the
officers and Hawkins was the central issue before
the state courts in its decision that Hawkins'
confession was voluntary.
As we have explained in rejecting
Hawkins' attack on the state's use of his confession,
we have accepted the subsidiary facts as being
fairly supported by the record. The asserted
discrepancy between the tape and Detective LaFavers'
testimony does not alter that conclusion. Regardless,
any conflict between the tape and Detective LaFavers'
testimony at trial or at the hearing on the motion
to suppress was not so indisputably plain that we
can reject the conclusion of all courts that
Hawkins' charges that the state made knowing use of
perjured testimony were without merit.
AFFIRMED.
*****
