511 F.Supp. 1312 (D.S.D. 1981), CIV77-4049, Stumes v. Solem

Docket Nº:CIV77-4049.
Citation:511 F.Supp. 1312
Party Name:Norman STUMES, Petitioner, v. Herman SOLEM, Respondent.
Case Date:April 10, 1981
Court:United States District Courts, 8th Circuit, District of South Dakota

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511 F.Supp. 1312 (D.S.D. 1981)

Norman STUMES, Petitioner,


Herman SOLEM, Respondent.

No. CIV77-4049.

United States District Court, D. South Dakota, Southern Division.

April 10, 1981

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Edward J. Leahy, of May, Johnson, Doyle & Becker, Sioux Falls, S. D., for petitioner.

Judith A. Atkinson and LeAnn Larson Finke, Asst. Attys. Gen., Pierre, S. D., for respondent.


NICHOL, Senior District Judge.

Petitioner, Norman Stumes, seeks a writ of habeas corpus pursuant to 28 U.S.C. s 2254. Petitioner alleges that his confinement

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under the custody of Herman Solem, Warden of the South Dakota State Penitentiary, is based on a conviction in state court for first degree manslaughter that was the result of proceedings that deprived him of his fifth, sixth, and fourteenth amendment rights. Specifically, the petitioner alleges that the state proceedings were constitutionally invalid for the following reasons:


Petitioner was denied his constitutional right to counsel.


The admission into evidence of strands of hair from the victim, the petitioner, and unidentified hair found on the victim, without sufficient foundation, deprived petitioner of due process of law.


Petitioner's right to due process of law was violated when the trial court submitted to the jury the question of guilt as to first degree manslaughter over the petitioner's objection.


On September 17, 1973, the body of Joyce Hoff was discovered in her apartment at Sioux Falls, South Dakota. She was the apparent victim of a homicide. The policeman investigating the crime described the body as follows:

I observed a woman that was mostly nude. She had on a light greenish ... turquoise ... pair of ... baby doll pajamas. The bottoms had been ripped mostly off and (were) lying ... on her left side. The upper part of this night ensemble had been torn and ripped and was lying ... upon her ... left shoulder.

The Minnehaha County Coroner performed an autopsy. His external examination revealed that the deceased had a bruised and swollen eye, a round bruise on her cheek, and small scratches and bruises on the bridge of her nose and on her lips. There were also small hemorrhages in the eyes and a discoloration of the neck and face. Further examination revealed that a plastic spray can top had been forced into the victim's vagina.

The Coroner concluded that the cause of death was not natural, but due to a lack of oxygen either anoxia or asphyxiation. There were, however, no visible marks of strangulation. The Coroner also concluded that the victim had engaged in sexual intercourse sometime between midnight and 2:00 A.M., prior to her death.

During the course of the investigation conducted by the Sioux Falls Police Department, petitioner became one of the suspects. At the time of the investigation petitioner had reckless driving, perjury, and felony check charges pending against him. He was represented on the reckless driving charge by Steve Jorgensen, a Sioux Falls lawyer who had previously represented the petitioner on other matters.

The fact that the petitioner was being sought by the police came to the attention of petitioner's mother, Jean Hamilton. In light of this fact and Mrs. Hamilton's feeling that petitioner had not been treated fairly in previous contacts with police, she contacted Steve Jorgensen relative to retaining him to represent petitioner. She paid Jorgensen $500.00 and he agreed to represent the petitioner. There were, however, no formal charges pending at this time against the petitioner with respect to the Hoff homicide.

Shortly after accepting the retainer, Jorgensen contacted Don Skadsen, Chief of Detectives, Sioux Falls Police Department, to inform them that he was aware that they were looking for petitioner. Jorgensen testified at the evidentiary hearing that the conversation was as follows:

(t)hat in all probability, if Norman (petitioner) contacted anyone, he would probably contact me inasmuch as I had represented him in the past, and that I would make a sort of deal with them (police) that if Norman contacted me first, that I would persuade him to surrender himself for questioning, if they would agree that if they found him first, they would contact me and let me talk to him before they began questioning him.

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Mr. Jorgensen further testified that the agreement that he had with the police was "with respect that they would contact me if they found him before I did." "They kept their part of the obligation as far as I was concerned," Jorgensen said; "there wasn't any agreement whatsoever, either express or implied, concerning the scope of questioning that was permissible on the trip from Green Bay to Sioux Falls."

On September 27, 1973, petitioner was arrested in Green Bay, Wisconsin, on the perjury and felony check charges. He was informed that he was under arrest for Sioux Falls authorities, searched, and given his Miranda rights. He was then placed in the Brown County, Wisconsin, jail.

Subsequent to petitioner's arrest and prior to the transporting of petitioner back to South Dakota, Jorgensen was contacted at home by Detective Skadsen to advise him that petitioner had been arrested in Green Bay. Jorgensen then attempted to contact the petitioner at the Brown County Jail. Because of the late hour and the fact that the person on duty was alone, petitioner could not be brought to the phone. Jorgensen was assured, however, that they would have petitioner call him in the morning. At 7:00 A.M. the next morning petitioner called Mr. Jorgensen. Jorgensen told petitioner "that he was wanted for questioning on a homicide..."

I told him not to talk over the telephone about it, that he should not make any statements to anybody in law enforcement, that he had a right to remain silent, and that he should not make any statements until he had been returned to Sioux Falls and discussed the matter with me.

Later on that week and shortly before Skadsen and Sergeant James Green were to leave for Green Bay, Green and Jorgensen had a chance meeting outside the police department. Jorgensen informed Green that he had told the petitioner not to talk to the Sioux Falls police officers, but then added, "knowing you, you'll have a confession out of him before you get him back to Sioux Falls." Jorgensen, however, indicated during his testimony at the evidentiary hearing that the remark "certainly wasn't in a serious vein and it wasn't intended to indicate to the detective that he had the okay to take a confession from my client." Green's testimony at the suppression hearing prior to petitioner's trial in state court was that Jorgensen had told him that "he'd talked to Norman on the telephone ... and had advised him not to talk to us but he stated that if he did talk to us there wasn't anything he could do about it."

On September 30, 1973, Skadsen and Green flew to Green Bay for the purpose of transporting petitioner back to Sioux Falls on the perjury and felony check charges as well as to question him about the death of Joyce Hoff. On the same date, Minnehaha County Deputy Sheriff Hendrick drove a sheriff's automobile to Green Bay to be used in returning petitioner to Sioux Falls.

On October 1, 1973, at approximately 9:30 A.M., Green, Skadsen, and Hendrick went to the Brown County Jail. After petitioner executed a consent form for the search of his car and residence he was transported to the Green Bay Police Department for questioning. Skadsen, Hendrick, and Lieutenant Milton Steeno of the Green Bay Police Department left to search petitioner's car and room. Green remained behind to question petitioner. At approximately 10:00 A.M. petitioner was advised of his rights. After his rights were read to him, petitioner stated that he understood his rights and that he had no objection to speaking to officers without the presence of counsel. During the next hour and one-half the subject of the Joyce Hoff homicide was discussed. At no time did petitioner make any statements implicating himself in the Hoff homicide. At approximately 11:45 A.M. Green advised petitioner that various people in Sioux Falls had taken polygraph examinations relative to the homicide. He then asked petitioner if he would be willing to do so. Petitioner stated, "that is a question I'd rather not answer until I talk to Steve." Questioning ceased at this point, but petitioner was told that the officers would again visit with him in the afternoon. Petitioner was then returned to the county jail at approximately 11:45 A.M.

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At about 4:30 P.M. both detectives returned to talk to petitioner. No Miranda warning was given at this time. Petitioner was asked about certain evidence that the detectives had that placed petitioner in Joyce Hoff's apartment on the day of her death. Petitioner did admit being in decedent's apartment on September 17 and admitted having intercourse with her at that time. He denied, however, any involvement in her death. After approximately one-half hour of questioning Green asked petitioner if Joyce Hoff's death was intentional or accidental. Green and Skadsen both testified that petitioner responded by saying it was accidental. Petitioner then stated, "I would rather not talk about it any more at this time until I talk to my attorney, and after that I'll give you a full statement in regards to her death." The questioning immediately ceased.

The following morning Skadsen, Green, and Hendrick arrived at the county jail at approximately 9:00 A.M. to pick up petitioner and transport him back to Sioux Falls, a distance of over 600 miles.

Shortly after the trip began petitioner was informed of his Miranda rights and was asked if...

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