Toliver v. Wyrick

• Decision Date: 17 April 1979
• Docket Number: No. 78-0062-CV-W-1.,78-0062-CV-W-1.
• Citation: 469 F. Supp. 583
• Parties: Raymond L. TOLIVER, Petitioner, v. Donald W. WYRICK, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

469 F. Supp. 583

Raymond L. TOLIVER, Petitioner, v. Donald W. WYRICK, Warden, Respondent.

No. 78-0062-CV-W-1.

United States District Court, W. D. Missouri, W. D.

April 17, 1979.

COPYRIGHT MATERIAL OMITTED

Robert G. Duncan, Kansas City, Mo., for petitioner.

Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION GRANTING APPROPRIATE FEDERAL HABEAS RELIEF

JOHN W. OLIVER, Chief Judge.

I.

This State prisoner federal habeas corpus case separately presents a Sixth Amendment assistance of counsel question and a Miranda question. The State trial court, although afforded three separate opportunities to rule both questions in accordance with controlling federal law, decided both questions adversely to the petitioner. The Missouri Court of Appeals, Kansas City District, found it necessary on direct appeal to reach only the Sixth Amendment question. That court, after reliably finding the undisputed facts and properly applying controlling principles of federal constitutional law, reversed petitioner's conviction and remanded the case for new trial.¹

The Supreme Court of Missouri, however, on application of the Attorney General, ordered the case transferred to that court. In a divided opinion, a majority of the Supreme Court of Missouri refused to consider the merits of either of the two federal constitutional questions presented and affirmed petitioner's conviction. State v. Toliver, 544 S.W.2d 565 (Mo. banc 1976). Two judges of that court filed separate dissenting opinions based on the Miranda ground in which each stated their agreement with the result of the Missouri Court of Appeals decision reversing and remanding the case for a new trial.

For reasons that must be stated in detail, we find and conclude that both the Sixth Amendment question and the Miranda question are properly before this Court for determination and that both questions should be decided on their respective merits.²

II.

The Sixth Amendment and Miranda questions were created by the failure of an experienced Kansas City police officer to preface his interrogation of the petitioner, who at the time was a defendant represented by counsel in a pending criminal case, either with any of the required Miranda warnings or with even a superficial attempt to obtain a waiver of petitioner's Sixth Amendment right to the assistance of counsel. The State prosecutor, with full knowledge of those circumstances, elected to use at trial the oral statements allegedly made to the police officer. The case is here because a majority of the Missouri Supreme Court, after ordering transfer from the Missouri Court of Appeals, refused to consider the merits of either of the federal constitutional questions presented. The following factual circumstances are not in dispute.

Petitioner was convicted in the Circuit Court of Johnson County, Missouri, of stealing guns from a Warrensburg discount store on September 13, 1973. It is undisputed that petitioner was in the store with Richard Lee Stevenson at the time a theft of guns occurred. The majority opinion of the Supreme Court of Missouri reliably found the following facts concerning subsequent events:

The two men left the store together and drove away in an automobile, which was later stopped by a state trooper who was reacting to a police radio bulletin concerning the alleged theft. Defendant had been driving about 80 m. p. h. with Stevenson and a man named Garner as passengers. After placing defendant under arrest for speeding and investigation of stealing over $50, the trooper gave defendant his "Miranda warnings," although defendant assured the trooper it was unnecessary to do so, because he had done nothing wrong. A search of the car and its occupants produced no handguns. The group was taken to patrol headquarters in Lee's Summit to be held for Warrensburg police, who were investigating the theft. At headquarters, Miranda warnings were read again and defendant was questioned about the theft. He denied the theft, saying he entered Wal-Mart to look for camping materials and had left when he could not find what he desired. When later taken to Warrensburg police headquarters, two more questioning episodes ensued preceded by Miranda warnings each time, but defendant made no statement. The three men were detained in the Johnson county jail over night . . .. 544 S.W.2d at 567-68.

The next day, petitioner and his companions were released. No formal charges were filed against them until later in the day on September 14, 1973. At that time, and after formal charges had been filed, a warrant was issued for the arrest of Richard Lee Stevenson and petitioner for stealing over $50. Petitioner and Stevenson returned to Warrensburg upon learning of the outstanding warrant and turned themselves in. Both were fingerprinted, photographed, arraigned on the pending charges, and released on bond.

It is stipulated that approximately nine weeks later petitioner and Stevenson were again questioned by police officers. The subsequent interrogation, which is the interrogation involved in this case, was conducted by the "Metro Squad," a group of officers drawn from various police agencies in the Kansas City Metropolitan Area to investigate major crimes. It is further stipulated that the Metro Squad, sometimes referred to as the "Kansas City police" was investigating a homicide at the time of the interviews of Stevenson and petitioner. It is clear from the record that petitioner was questioned by the Kansas City police because they had information that the homicide being investigated "had been committed with a handgun having the same serial number as one of those guns stolen from the Warrensburg discount store." 544 S.W.2d at 568.

Stevenson, petitioner's co-defendant in the pending Johnson County case, was questioned after he had been given Miranda warnings on November 21, 1973, by Detective Watson and another officer of the Kansas City, Missouri, Police Department. Stevenson's written statement (Ex. D, attached to the stipulation) incriminated himself and petitioner. The next day, on November 22, 1973, in possession of Stevenson's statement and reports from the Warrensburg police department concerning the theft, Detective Watson "was requested by Major Hatfield to go to Raymond's house to see if he would come down and we could interview him." Tr. 45.

The only State judge to make any findings of fact concerning this questioning was Chief Justice Seiler in his dissenting opinion in the Missouri Supreme Court.³ In the absence of any relevant findings in the majority opinion of the Supreme Court of Missouri in regard to petitioner's interrogation by the Kansas City police, we have carefully reviewed the State trial proceedings and find that the following findings of Chief Justice Seiler are accurate and reliable:

In the case before us, two officers, who knew that the appellant was charged with the theft of a gun which they had in their possession as the murder weapon in a homicide they were investigating, drove to appellant's residence in an unmarked state highway patrol car. According to their own testimony, upon arriving at appellant's residence, they got out of the car went up to the house, pounded repeatedly on the door, "I really whammed it," and yelled for appellant to come out. The officers then placed appellant in the front seat of the car with one of the officers and a companion of appellant Garner in the back seat with another officer. The two were driven downtown to police headquarters, separated from one another, and the appellant was questioned for one hour with three officers present. 544 S.W.2d at 570 (Seiler, C. J., dissenting)⁴

The State concedes that petitioner was not informed of his Miranda rights before he was questioned by the Kansas City police on November 22, 1973. The State does not contend, and there is no evidence to support any finding, that petitioner waived his Sixth Amendment right to the assistance of counsel. Detective Watson testified at trial that during the "interview" petitioner orally admitted stealing the guns from the Warrensburg store and selling them to a black man for some dope. Tr. 202.

We now turn to the factual circumstances in regard to the manner petitioner's federal claims were presented to the State trial judge. Petitioner filed a pretrial motion to suppress the Kansas City police officer's testimony about the incriminating oral statements allegedly made by petitioner on November 22, 1973. That motion alleged in its first paragraph that "the statement was obtained in violation of defendant's . . right to counsel as guaranteed by the . . Sixth and Fourteenth Amendments to the United States Constitution." Tr. 17. The third paragraph of that motion alleged that the "statement was made without counsel present, and without adequate warnings of his rights as set forth by the Supreme Court of the United States of America in Miranda v. Arizona 384 U.S. 436 86 S.Ct. 1602 16 L.Ed.2d 694." Tr. 18. Immediately prior to trial on December 4, 1974, four police officers testified at a plenary evidentiary hearing on the motion to suppress Tr. 27-62. Petitioner did not testify.

At the close of that hearing, the State trial judge denied the motion to suppress with the following conclusory statement:

The Defendant had received the warning four times. Whether this was a custodial or noncustodial interrogation, I don't think there's any question but what he had previously been apprised of what his rights were. I don't think it's necessary that the Police every time they question him, they give him the warnings. The Court certainly feels that the further interrogation and investigation was not a custodial interrogation. Tr. 62.

After the trial judge ruled the motion to suppress and after other pretrial discussion the trial commenced. The State's last trial witness, Detective Maurice Watson of the Kansas City Police Department,...