Bannister v. Armontrout, 92-2476

• Decision Date: 24 September 1993
• Docket Number: No. 92-2476,92-2476
• Citation: 4 F.3d 1434
• Parties: Alan BANNISTER, Appellant, v. Bill ARMONTROUT; Attorney General of the State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1434

4 F.3d 1434

Alan BANNISTER, Appellant, v. Bill ARMONTROUT; Attorney General of the State of Missouri,

Appellees.

No. 92-2476.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 9, 1992.

Decided Sept. 24, 1993.

Christopher Schneider, Kansas City, MO, argued (Bruce E. Baty, on brief), for appellant.

Stephen D. Hawke, Jefferson City, MO, argued, for appellee.

Before WOLLMAN, Circuit Judge, BRIGHT and HENLEY, Senior Circuit Judges.

HENLEY, Senior Circuit Judge.

Alan Bannister was convicted of capital murder and sentenced to death for the murder of Darrell Reustman. His conviction and sentence were affirmed on direct appeal. State v. Bannister, 680 S.W.2d 141, 147 (Mo.1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985). His motions for post-conviction relief were denied. Bannister v. State, No. 70715 (Mo. Sept. 1, 1988) (order); Bannister v. State, 726 S.W.2d 821 (Mo.Ct.App.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987). Bannister now appeals a judgment of the district court ¹ denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Bannister v. Armontrout, 807 F.Supp. 516 (W.D.Mo.1991). We affirm.

We first address Bannister's fifth and sixth amendment challenges to an August 23, 1982 interrogation. The relevant facts are as follows.

Reustman lived in a trailer park in Springfield, Missouri with Linda McCormick. Around 10:00 p.m. on August 21, 1982, Reustman answered a knock at the front door of the trailer. After Reustman opened the door, he was shot in the head. Reustman died a short time later, without identifying his assailant. Although McCormick was in the trailer at the time of the shooting, she was in the back and did not see who shot Reustman. However, McCormick and others had seen Bannister around the trailer earlier in the evening.

Around 5:15 a.m. on August 22, 1982, police officers arrested Bannister at a Joplin, Missouri bus station. After the officers read Bannister his Miranda ² rights, Bannister told them he would wait to talk to an attorney. The officers took Bannister to the Joplin city jail, where they again advised him of his Miranda rights. He again refused to talk and said he wanted to talk to an attorney. However, as the officers discussed going to a nearby motel to determine if Bannister had registered there, Bannister volunteered that he had registered under an alias.

While Bannister was being transported to the county jail, he asked officer Marshall Matthews about the criminal charges and the penalties. Matthews told Bannister he was being charged with capital murder and that the penalty was death or life imprisonment. Bannister asked what the penalty would be for a reduced charge. When the police car pulled onto the jail parking lot, Bannister stated he should have "stuck to [his] own profession." When Matthews asked what it was, Bannister replied "robbing banks. I never got caught." Matthews told Bannister that the Federal Bureau of Investigation (FBI) would be interested in talking to him and Bannister asked if the FBI would be involved in the investigation.

On entering the jail, Bannister told Matthews he would like to talk to the person in charge. Matthews took Bannister to Sheriff Joe Abramowitz. At that time, Abramowitz did not want to talk to Bannister, but advised him it would be in his best interest to cooperate.

At 10:30 a.m. the next day, August 23rd, Bannister met with Abramowitz and officers Don Richardson and Bob Barnett. After being read his Miranda rights, Bannister stated he understood his rights and wanted to talk. Bannister then signed a waiver form. Bannister told the officers that he had been living in Peoria, Illinois with Rick Wooten and that Wooten had asked him if he would like to make some money killing a man. Wooten explained that McCormick's husband wanted Reustman killed and would pay $4,000.00. Bannister agreed and Wooten gave him a $1,500.00 down payment, a gun, a bus ticket, and a slip of paper with Reustman's name and address.

After the officers had shown Bannister a gun they had recovered from a field near Reustman's trailer, Bannister agreed to take them back to the field to search for additional evidence. En route to the field, Bannister showed the officers a vacant house where he had test-fired the gun. At the field, Bannister directed the officers to the torn-up slip of paper with Reustman's name and address and live ammunition.

Before trial, Bannister moved to suppress his statements. On October 25, 1982, Bannister, who was represented by a public defender, testified at a suppression hearing. Bannister asserted that the statements were involuntary because he had been denied medical attention. Bannister testified that he had repeatedly requested medical attention for pain from old stab wounds, but did not receive any attention until he talked. Officer Richardson testified that although Bannister had complained about pain, he did not ask to stop the interview or to see a doctor. Abramowitz testified that Bannister did not appear to be in pain. The court denied Bannister's suppression motion.

At trial, Bannister was represented by public defender Ray Gordon. Gordon objected to officer Barnett's testimony concerning Bannister's statements. ³ The trial court indicated that it thought the matter had been resolved at the suppression hearing. Gordon responded that he believed that Bannister had been appointed an attorney before the interrogation. The state replied that the court had already ruled on the matter at the suppression hearing, and the record would reflect when an attorney had been appointed. The trial court noted that the docket sheet showed that Bannister had appeared before a magistrate sometime on August 23, but did not indicate the time. ⁴ The court then overruled the objection.

In addition to testimony about Bannister's statements and evidence derived therefrom, the state introduced testimony of residents who had seen Bannister in the vicinity of the trailer. However, no one could identify Bannister as the person who shot Reustman or the person seen running from Reustman's trailer. The state also introduced physical evidence which the police had obtained independently of Bannister's statements. On August 22, the police searched a field next to Reustman's trailer and recovered a gun, a shell, a shirt, and a baseball cap. In addition, at the time of Bannister's arrest, officers administered a gun residue test and took fingernail, hair, and soil samples. Although Dr. Philip Whittle, the state's expert, testified that the gun recovered at the field was the murder weapon, he could not link the gun to Bannister. There were no identifiable prints on the gun, and the gun residue test was negative. Dr. Whittle stated that tests could not establish the presence of blood on the shirt, baseball cap or fingernail clippings. Moreover, comparison of soil samples taken from the field and from Bannister's shoes was "not an exact comparison by any means."

The jury convicted Bannister of capital murder. At the penalty phase, Gordon presented no mitigating evidence, but argued against the death penalty on religious grounds. As the state urged it to do, the jury returned the death sentence, finding two statutory aggravating circumstances--that the murder was committed for the purpose of receiving money and that Bannister had a substantive history of serious assaultive convictions. ⁵

On direct appeal to the Missouri Supreme Court, Bannister argued that admission of the statements violated his fifth amendment rights. In his brief Bannister claimed that his request for counsel occurred at 5:15 a.m. on August 22, 1982 and acknowledged that he asked to talk to Sheriff Abramowitz at 7:30 that morning. Bannister argued that "even if [he] initiated the contacts with the law officers for the interrogation," the statements were inadmissible under Miranda because counsel had not been afforded and requested medical attention had been denied. Although Bannister acknowledged that "at the time [he] requested to talk to an attorney, the officers ceased questioning him," without explanation, he claimed that the police did not honor his request. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975) (once suspect invokes fifth amendment right to remain silent, police must "scrupulously" honor request).

Bannister also alleged that the admission of the confession violated his sixth amendment rights. He, however, did not cite any sixth amendment cases. Moreover, he did not mention, as he suggested to the trial court in his objection to Barnett's testimony, that he had been appointed counsel before the interrogation.

The state supreme court analyzed the claim under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). State v. Bannister, 680 S.W.2d at 147-48. In Edwards, a fifth amendment case, the Supreme Court held that an "accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 484-85, 101 S.Ct. at 1885. In addition, "even if a conversation ... is initiated by the accused, ... the burden remains upon the prosecution to show that the subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation." Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983) (plurality opinion, Rehnquist, J.).

The state court found that the statements were admissible because Bannister had initiated the conversations leading to the interrogation and that the waiver of Miranda rights was voluntary. 680 S.W.2d at 148. As to the initiation prong, the court noted that Bannister told the officers that he had used an alias at...