528 F.2d 522 (5th Cir. 1976), 75--1781, Wainwright v. Sykes

Docket Nº:75--1781.
Citation:528 F.2d 522
Party Name:Louie L. WAINWRIGHT, Director, Division of Corrections, Petitioner-Appellant, v. John SYKES, Respondent-Appellee.
Case Date:February 25, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 522

528 F.2d 522 (5th Cir. 1976)

Louie L. WAINWRIGHT, Director, Division of Corrections,

Petitioner-Appellant,

v.

John SYKES, Respondent-Appellee.

No. 75--1781.

United States Court of Appeals, Fifth Circuit

February 25, 1976

Page 523

Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for petitioner-appellant.

William F. Casler, Sr., St. Petersburg, Fla. (Court-appointed), for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GEWIN, BELL [*] and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The respondent below, Wainwright (appellant, or occasionally, 'the State'), appeals from an interlocutory order of the district court in a state habeas corpus case. That order required the state to conduct an evidentiary hearing to supplement the record before the district court, and provided that in the alternative, if such a hearing is not held, the district court will determine the issues on the state record as transmitted. The effect of the order was stayed for 90 days to permit this appeal. At issue is the petitioner-appellee's contention that statements made by him at the time of his state arrest were unconstitutionally used as evidence against him at trial, because, conceding that he received his Miranda 1 warnings as testified by sheriff's deputies, he was drunk at the time of his arrest and the making of the statements used, and thus incapable of a knowing waiver of the underlying constitutional rights involved. The respondent counters that appellee Sykes' failure to object to the introduction in evidence of the out of court statements at or before trial, required by Rule 3.190(i), Fla.R.Crim.Proc.1972, 2 waived his opportunity to challenge the voluntariness of the incriminating statements.

Appellee was arrested and charged with second degree murder. On June 5, 1972, he was tried before a jury, and convicted of third degree murder, Fla.Stat. 782.04, in a Florida court. The conviction was affirmed on direct appeal. Subsequently, he unsuccessfully sought habeas corpus relief in the state courts. Thereafter he sought habeas corpus relief in the court below. In an unpublished order of January 23, 1975, the district court found that appellee's trial transcript and the state record was too meager a basis for findings as to the

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voluntariness of the waiver of the Miranda rights involved. Consequently, the court ordered that a Jackson v. Denno 3 type evidentiary hearing be held in the Florida court to determine the voluntariness of the out of court statements used as evidence against Sykes. The court later modified its order to permit an interlocutory appeal pursuant to Title 28, U.S.C. § 1292(b), and we accepted the appeal.

At issue then are two distinct waiver problems: (1) did Sykes knowingly and voluntarily waive his Miranda rights when he made inculpatory statements at the time of his arrest? (2) did appellee, by failing to object to the introduction of the statements into evidence, as provided by procedural State law, waive the right to bring this objection on appeal or in subsequent proceedings? The purpose of the evidentiary hearing the district court ordered is to determine the factual basis of the underlying waiver issue, or substantive issue, to determine if Sykes was in fact so drunk he could not understand his Miranda rights, and thus could not knowingly waive them. 4 Our inquiry, in determining the propriety of the district court's order, must focus on the second, or procedural, waiver.

I. NATURE OF THE RIGHT

Both appellee and the state recognize that any incriminating statement made by a defendant absent a knowing and intelligent waiver by him of his right to counsel and his right not to incriminate himself must be excluded from the evidence at trial. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The state does not appear to object to the proposition, in the abstract, that a defendant might be too drunk to give such a knowing and intelligent waiver, and that, in such a case, out of court statements made by him would be inadmissible at trial as evidence against him. 5

The Supreme Court in Miranda, in recognition of the importance of the defendant's Fifth and Sixth Amendment rights, stated that '(t)he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisite to the admissibility of any statement made by a defendant'. 384 U.S. at 476, 86 S.Ct. at 1629, 16 L.Ed.2d at 725. The state asserts that the protections and prerequisites Miranda set out as necessary to the introduction of a defendant's out of court statements might themselves be waived by the failure of the defendant to object to their introduction.

Before an admission or confession may be introduced into evidence against a defendant, it is incumbent upon the trial judge to determine the voluntariness of the statements involved, and the defendant's knowing and intelligent waiver of his constitutional rights. Johnson v. Zerbst, 1938,304 U.S. 458, 88 S.Ct. 1019, 82 L.Ed. 1461. A defendant is entitled to a hearing on the issue of voluntariness as a matter of procedural

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due process. Jackson v. Denno, supra. The rule set out in Jackson v. Denno is that 'a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given.' Sims v. Georgia, 1967,385 U.S. 538, 543--544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593, 598. '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'. Id., 385 U.S. at 544, 87 S.Ct. at 643, 17 L.Ed.2d at 598. 6 Long before Jackson v. Denno the Florida practice was to require the trial judge to hold a hearing outside the presence of the jury to determine the voluntariness of any statements by the defendant proposed to be used as evidence against him. 7 The burden is on the state to secure this prima facie determination of voluntariness, not upon the defendant to demand it. McDole v. State, Fla.1973, 283 So.2d 553; Reddish v. State, Fla.1964,167 So.2d 858; Young v. State, Fla.1962, 140 So.2d 97; Smith v. State, 3rd Fla.D.C.A.1974, 288 So.2d 522; Dodd v. State, 4th Fla.D.C.A.1970, 232 So.2d 235.

II. WAIVER

Appellee argues that not only did the state fail to carry its burden in showing affirmatively, on the record, that the statements introduced were voluntarily made, but that the waiver principles enunciated in Faye v. Noia 8 make it plain that constitutional rights of such fundamental importance as those considered here may only be waived by the defendant himself, deliberately, and not by his attorney without his personal knowledge, or through a procedural forfeit. The state, however, recites to us a litany of cases purporting to show that in instances such as this a purely procedural waiver would bind the defendant, notwithstanding the fact that he had no personal knowledge of the rights waived.

The state sees this as a case controlled by Henry v. Mississippi, 1965, 379 U.S.

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443, 85 S.Ct. 564, 13 L.Ed.2d 408, which held that it is up to the federal courts to determine whether the enforcement of a state procedural rule serves a legitimate interest so as to preclude a state prisoner from reising questions of constitutional right by federal habeas corpus. Florida Rule of Criminal Procedure 3.190(i) 9 is a contemporaneous objection rule analogous to that considered in Henry. Their function is the same; 'By immendiately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence.' Henry v. Mississippi, supra, 408 U.S. at 448, 85 S.Ct. at 567, 13 L.Ed.2d at 413. The facts of this case, however, are not such as to require that federal courts, from any principle of comity, refrain from determining the underlying constitutional claim of Sykes.

Henry dealt with the admissibility of a police officer's testimony as to evidence which had been illegally obtained. Counsel for the defendant in that case did not object at trial to the testimony, and therefore did not comply with the state's contemporaneous objection rule. The Court remanded the case to the state court to determine whether the defendant was 'to be deemed to have knowingly waived decision of his federal claim when timely objection was not made to the admission of illegally seized evidence.' Id., 408 U.S. at 446, 85 S.Ct. at 566, 13 L.Ed.2d at 412. The Supreme Court stated that there was no question but 'that a litigant's...

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