Parker v. Sigler

• Decision Date: 11 August 1969
• Docket Number: No. 19411.,19411.
• Parties: Darrel F. PARKER, Appellant, v. Maurice H. SIGLER, Warden, Nebraska State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.2d 459 (1969)

Darrel F. PARKER, Appellant, v. Maurice H. SIGLER, Warden, Nebraska State Penitentiary, Appellee.

No. 19411.

United States Court of Appeals Eighth Circuit.

July 18, 1969.

Rehearing Denied August 11, 1969.

Richard J. Bruckner, Omaha, Neb., for appellant, Warren C. Schrempp, Omaha, Neb., on the brief.

Ralph H. Gillan, Asst. Atty. Gen. of Nebraska, Lincoln, Neb., for appellee, Clarence A. H. Meyer, Atty. Gen., of Nebraska, Lincoln, Neb., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

This is a timely appeal by Darrel F. Parker, hereinafter usually referred to as defendant, from the order of the federal district court (Judge Van Pelt) filed June 27, 1968, dismissing his petition for writ of habeas corpus. Certificate of probable cause and permission to proceed with the appeal in forma pauperis was granted by the trial court.

Defendant's principal contention raised in the trial court and on appeal is that his confessions received in evidence at his trial were involuntary and that federally guaranteed constitutional rights of the defendant were violated by the reception in evidence of such confessions.¹

A brief statement of the background of this litigation is desirable. Defendant Parker was tried by a jury in the district court of Lancaster County, Nebraska, on a charge of first degree murder of his wife, Nancy Parker. He was found guilty as charged by the jury with a recommendation of life imprisonment. His motion for a new trial was overruled and he was sentenced to life imprisonment on June 2, 1956. Upon direct appeal to the Nebraska Supreme Court, the conviction was affirmed. Parker v. State, 164 Neb. 614, 83 N.W. 2d 347. Certiorari was denied. 356 U. S. 933, 78 S.Ct. 775, 2 L.Ed.2d 763. Subsequently in 1962 defendant filed a petition for writ of error coram nobis in the sentencing court which was dismissed. The dismissal was affirmed upon appeal. Parker v. State, 178 Neb. 1, 131 N.W.2d 678.

Defendant filed a motion for post conviction relief pursuant to Nebraska law with the sentencing court in 1965 wherein he raised the issue that the confession obtained from him was obtained in violation of his federal constitutional rights and was improperly received in evidence at his trial. After affording an evidentiary hearing, the trial court denied relief. The Supreme Court affirmed in State v. Parker, 180 Neb. 707, 144 N.W.2d 525. Some of the factual background of the present litigation is set out in the Nebraska Supreme Court cases which we have cited.

The petition now before us was filed in the Nebraska federal district court on October 26, 1966. It is clearly established that such court had jurisdiction to entertain the petition and that the defendant has exhausted available state remedies.

In both the state and federal post conviction proceedings, a full opportunity was afforded the State and the defendant to offer any relevant evidence. As stated by Judge Van Pelt, the evidence offered in the federal proceeding was substantially the same as that presented in the state proceeding. The evidence before the federal court consisted largely of a transcript of the evidence offered at defendant's trial, including that offered in the absence of the jury on foundation for the admission of the confession and the more voluminous testimony offered after defendant's objection to the reception of the confession had been overruled. The record of the prior state proceedings, the content of the alleged confessions and certain stipulated facts were before the court. All parties declined the opportunity afforded them to offer any additional testimony they deemed relevant.

Judge Van Pelt denied defendant's petition on June 27, 1968. A comprehensive memorandum opinion (not reported) was filed stating the basis for the action taken. On the voluntariness issue, Judge Van Pelt states: "The evidence is definitely conflicting. There is evidence in the record which, if believed, would support petitioner's claim of involuntariness. However, there is also ample evidence in the record to support the findings of fact made by the state court in the post conviction action." Judge Van Pelt sets out the statement from Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 760, 9 L.Ed.2d 770, reading:

"If he concludes that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, he may, and ordinarily should, accept the facts as found in the hearing. But he need not. * * *"

and applies such teaching, saying:

"This court thus accepts and adopts the state trial court\'s findings of facts. It believes that it was the intent of the Congress, if a full, fair and impartial hearing was had in the State court that the Federal court, in maintaining the sometimes delicate balance between the State and Federal systems should not disturb the State court\'s findings absent convincing testimony that the factual determination was erroneous."

Has there been a reliable finding of fact in the prior state court proceedings upon the voluntariness issue upon which Judge Van Pelt could properly rely? We think not. The disposition of the state post conviction proceeding appears from the Supreme Court opinion to be based upon a conclusive effect given to the convicting court's admission of the confession and the affirmance of the conviction on direct appeal. The post conviction court's determination appears to be based upon the following holdings:

"This conflicting evidence was submitted to the trial court which held the confession voluntary. The jury found it voluntary. It has now been considered by two trial judges, each of whom reviewed it again on motions for new trial. It was previously reviewed by this court on appeal.

* * * * * *

"We find no evidence of a real miscarriage of justice. We think the same issues should not now be relitigated." 144 N.W.2d 525, 528-529.

Thus the validity of the voluntariness determination in all subsequent proceedings clearly appears to rest upon the validity of the determination of the voluntariness issue by the sentencing court.

The controlling case setting the standards to be applied in determining the voluntariness of a confession is Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The Court there stated:

"It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. Equally clear is the defendant\'s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession." 378 U.S. 368, 376-377, 84 S.Ct. 1774, 1780-1781.

Under the New York procedure under attack in that case, the trial court in passing on the voluntariness issue could not resolve disputed fact issues but was required to submit disputed fact issues bearing on voluntariness to the jury for determination under proper instructions. The Supreme Court points out that it is impossible to determine from the jury verdict whether the jury found the confession voluntary and relied upon it or involuntary and ignored it. The New York practice of permitting the jury to determine voluntariness on the basis of disputed facts was found to be violative of due process. The Supreme Court held that the trial court, not the jury, must make the determination of a confession's voluntariness before it can be received in evidence, stating:

"These procedures must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. In our view, the New York procedure falls short of satisfying these constitutional requirements." 378 U.S. 368, 391, 84 S.Ct. 1774, 1788.

The holding in Jackson v. Denno that the trial court must resolve evidentiary conflicts before admitting the confession is reaffirmed in Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. In that case, the Court holds: "Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity." 385 U.S. 538, 544, 87 S.Ct. 639, 643.²

Defendant's conviction became final prior to the Supreme Court's decision in Jackson v. Denno. It is established that the holding of Jackson v. Denno is to be retroactively applied. Desist v. United States, 394 U.S. 244, 250, n. 15, 89 S.Ct. 1048, 22 L.Ed.2d 248.

The record in the case before us shows that the convicting court made no reliable determination of the voluntariness issue before admitting the confession in evidence. All that appears in the record is a bald statement overruling defendant's appropriate objection to the admission of the written signed confession. No finding or basis for such ruling is stated. Additionally, the court in its instructions submitted to the jury the issue of voluntariness of the confession as well as that of the alleged oral confessions hereinafter discussed. The Supreme Court of Nebraska in affirming the conviction thus states the standards it follows in passing upon the voluntariness of a confession:

"`In laying a foundation in a criminal case for the admission of a confession in evidence, it is sufficient to establish affirmatively all that occurred

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