Philip G. Yates v. C. E. Breazeale, Superintendent of the Mississippi State Penitentiary ( 1968 )

COLEMAN, Circuit Judge:

Under Mississippi law, every person convicted of murder shall suffer death in the gas chamber at the State Prison unless the jury rendering the verdict shall fix punishment at imprisonment in the penitentiary for life or unless the jury disagrees as to the punishment, in which case the court shall fix punishment at imprisonment for life, §§ 2217, 2550, Mississippi Code 1942. In practice, many defendants are permitted, in the discretion of the prosecution and the trial judge, to plead guilty and receive a life sentence without the intervention of a jury. If the trial judge so orders, however, the assessment of the punishment may be submitted to a jury even though the defendant pleads guilty, Dickerson v. State, 202 Miss. 804, 32 So.2d 881 (1947). In such instances the unanimous vote of all twelve jurors is, as above indicated, required for the infliction of the supreme penalty.

This being the law, this habeas corpus appellant, Philip G. Yates has twice pleaded guilty to murder and has twice thrown himself upon the mercy of a jury, only to receive the death penalty in each instance.

After the first jury verdict, in 1964, the Supreme Court of Mississippi reversed for the reason that the defendant had not been accorded adequate time to prepare for trial.

In 1965, a second trial, with the penalty as the sole issue, again resulted in capital punishment, and the State Supreme Court affirmed, Yates v. State, 253 Miss. 424,175 So.2d 617 (1965). The Supreme Court denied certiorari, 382 U.S. 931, 86 S.Ct. 321, 15 L.Ed.2d 342 (1965).

After exhausting state remedies, Yates filed his petition for habeas corpus in the United States District Court for the Northern District of Mississippi. In a thorough, published opinion (266 F.Supp. 360-368, 1967) the District Court denied relief. As to the controlling issues there submitted and decided we adopt the published opinion as our own and affirm the judgment.

It must be noted that at neither of Yates’ trials was any objection raised that his confessions were not freely and voluntarily made. In the habeas corpus proceedings below the District Court found that the testimony of Yates at his first trial “negatives completely the idea that his confessions were in fact the product of any coercion, force, threats, inducements, or promises on the part of anyone”, 266 F.Supp. at 364.

Since the factual details are set out in full in the published opinion we do not repeat them here other than to say that the majority of this Court finds no reason to overturn the findings.

The significant factor is that Yates sent for a minister of his own selection. The officers honored his request and permitted the visit. This was not a case where the authorities affirmatively used religious facilities or considerations for the purpose of inducing a statement. We believe it to be only fair and humane that a prisoner’s request for a minister of his choice be granted if it reasonably can be done under the circumstances. We are unwilling to endanger such an important practice by holding that if one is allowed to see his minister it may invalidate, or support a serious challenge to, any confession which may subsequently be made.

Since the District Court had this case before it, the Supreme Court has decided Witherspoon v. Illinois, 390 U.S. 986, 88 S.Ct. 1180, 20 L.Ed.2d 102. A death sentence was there reversed because veniremen entertaining conscientious scruples against the infliction of the death penalty were for that reason alone automatically excluded from the trial panel. The Court said, “To execute this death sentence would deprive [the defendant] of his life without due process of law”, see Irving v. Breazeale, 400 F.2d 231 [recently decided by this Court].

The 1964 Yates trial transcript shows that six veniremen were automatically excluded from the panel solely because they had conscientious scruples against the death penalty. As noted, that sentence was reversed, on other grounds.

The 1965 trial transcript does not reflect the jury selection proceedings. Under Mississippi practice the court reporter does not record this portion of the trial unless specifically requested to do so. Both the prosecution and the defense stipulated in open court that the court reporter should not transcribe the jury selection proceedings. We may take judicial notice that conscientious scruples against the infliction of the death penalty is cause for automatic exclusion from juries in capital cases in Mississippi, Borowitz v. State, 115 Miss. 47, 75 So. 761 (1916); Shimniok v. State, 197 Miss. 179, 19 So.2d 760 (1944).

From the record before us we have no way of knowing whether any veniremen in the 1965 trial were, in fact, automatically excluded in violation of the rule enunciated in Witherspoon. Therefore, we affirm the judgment of the District Court, without prejudice to the right of the defendant immediately to file and diligently to prosecute, beginning with the State Courts, a Wither-spoon challenge to the validity of his death sentence. The case will be remanded to the District Court pending such a challenge. The execution of the sentence will be stayed pending the outcome, Irving v. Breazeale, supra.

In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, it was held that the Constitution prohibits the establishment of a death penalty applicable only to those defendants who assert their right to contest their guilt before a jury. Yates’ plea of guilty, however, was not entered for the purpose of avoiding the possibility of capital punishment. To the contrary, he deliberately entered the plea with the knowledge that a jury would be empanelled for the sole purpose of fixing his punishment. So, Jackson is of no assistance to him.

Affirmed and remanded, with stay of execution.