Hayes v. United States

• Decision Date: 30 June 1965
• Docket Number: No. 17938.,17938.
• Citation: 347 F.2d 668
• Parties: Hiller Arthur HAYES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

347 F.2d 668 (1965)

Hiller Arthur HAYES, Appellant, v. UNITED STATES of America, Appellee.

No. 17938.

United States Court of Appeals Eighth Circuit.

June 30, 1965.

Hiller Arthur Hayes, pro se.

Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., filed type-written brief for appellee.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

PER CURIAM.

This is an appeal by Hiller Arthur Hayes, hereinafter called defendant, from final order entered December 2, 1964, denying his 28 U.S.C.A. § 2255 motion to vacate sentence, filed August 17, 1964. The trial court's memorandum opinion is reported at 236 F.Supp. 225.

Defendant was tried to a jury on a three-count indictment charging him with kidnapping three different persons on the same occasion in violation of 18 U.S.C.A. § 1201. Defendant was convicted and sentenced to concurrent terms of imprisonment of 99 years on each count. Upon appeal, his conviction was affirmed. Hayes v. United States, 8 Cir., 296 F.2d 657.

The sole issue raised in defendant's motion before us is that his confession, which was introduced in evidence at his trial, was obtained in violation of his Sixth Amendment constitutional rights to assistance of counsel. He relies upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. On brief, defendant raises the additional issue that the court failed to hold a hearing outside the presence of the jury on the question of the voluntariness of his confession, and defendant also urges that his confession was coerced. We shall consider all issues raised by the defendant.

We agree with the trial court's view that Massiah and Escobedo are factually distinguishable from our present case. In Massiah, defendant after indictment and after employment of counsel, while out on bond, was at the instance of the Government interviewed by a confederate in a car which had a hidden radio transmitter installed, of which the defendant had no knowledge. By such means, the Government agents heard incriminating statements made by the defendant to his confederate. The Court held such evidence was illegally obtained in violation of the Sixth Amendment right to assistance by counsel. The Court in effect held that the Government could not thus question defendant indirectly as to subject matter which if inquired into directly would violate the defendant's constitutional rights.

In Escobedo, defendant had employed an attorney. When the police sought to interview him after his arrest, he asked to see his lawyer. At the same time, his lawyer was in the police station making persistent demands to see his client, all of which were refused. The defendant was not advised as to his constitutional rights. The defendant had no previous criminal record. The holding of Escobedo is:

"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel\' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,\' * * *." 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765.

The limiting language just quoted and the Escobedo Court's finding that the case is distinguishable from Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, indicates that the Supreme Court has not established an absolute rule that a confession made without counsel violates the Sixth Amendment rights under all circumstances.

In our present case, defendant had four prior convictions. He was fully advised of his constitutional rights and made no request to see an attorney. Defendant in his present motion makes no express allegation that his confession was coerced in any way. He alleges no facts supporting a coercion charge. Defendant, in his direct appeal in which he was represented by competent court-appointed counsel, raised the coercion issue. In our affirming opinion, the late Judge Sanborn sets out the evidence in detail and clearly demonstrates that the defendant's confession was uncoerced and voluntary.¹ See pp. 668-670 of 296 F.2d. On pp. 659-661 of 296 F.2d, repeated refusals on the part of defendant to have counsel appointed for him and defendant's insistence that he be permitted to defend himself were shown. Among other things, Hayes stated that he was represented by counsel on his prior convictions and "I can't do no worse than they did." Such expressions negate any reasonable probability that the defendant had any desire to consult with counsel before making his confession. Defendant was fully advised of his right to remain silent and informed that any statement he made would be used against him. When asked why he made the statement, h...