Gunsby v. Wainwright, 78-2364
| Decision Date | 06 June 1979 |
| Docket Number | No. 78-2364,78-2364 |
| Citation | 596 F.2d 654 |
| Parties | Earl GUNSBY, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert L. Shevin, Atty. Gen., Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for respondent-appellant.
J. Richard Rahter, St. Petersburg, Fla. (Court-appointed), for petitioner-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before THORNBERRY, CLARK and RONEY, Circuit Judges.
This case involves the proper application of Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976), to the admissibility of (1) a statement made by a defendant to the prosecutor, and (2) a deposition taken of the defendant under subpoena from a codefendant, both after a plea bargain, which was later set aside at the Government's request. After an evidentiary hearing, the district court held that both the statement and the deposition were legally involuntary, and therefore inadmissible in the state trial because they violated the defendant's constitutional right against self-incrimination. On Florida's appeal from the grant of the writ of habeas corpus, we affirm.
Earl Gunsby, charged with robbery, negotiated a plea bargain whereby he agreed to plead guilty to robbery and testify against two codefendants in exchange for a maximum sentence of 7 1/2 years and no objection from the State to a probated sentence.
Shortly after entering the guilty plea, Gunsby made a statement to the prosecutor in which he incriminated himself and a codefendant. Gunsby's testimony at trial, however, tended to exculpate rather than incriminate the codefendant, who was acquitted.
The State then moved to vacate Gunsby's plea agreement, contending that Gunsby had made inconsistent statements and thus violated the plea agreement. A show cause order issued and a hearing was set.
Before the hearing, however, Gunsby appeared at a deposition in response to a subpoena issued by another codefendant who had not yet been tried. Gunsby again incriminated himself.
Despite Gunsby's contention that his statements were not inconsistent, the plea bargain was set aside. Gunsby's motion to suppress both the statement and the deposition was denied and both were introduced at trial. He was convicted of robbery and given a 20-year sentence. The state appellate court affirmed. Gunsby v. State, 316 So.2d 313 (Fla.Dist.Ct.App.1975).
Gunsby petitioned the federal court for a writ of habeas corpus contending his right against compulsory self-incrimination under the Fifth Amendment had been violated. Although the petition was originally granted, this Court remanded for an evidentiary hearing on the issue of whether Gunsby's inculpatory statements were part of the plea bargain so that Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976), could be properly applied. Gunsby v. Wainwright, 552 F.2d 127 (5th Cir. 1977). The district court again granted the writ of habeas corpus from which the State appeals.
The State's contention that the federal district court erroneously disregarded the findings of the state trial court without finding that its determination was inadequate under one of the grounds enumerated in 28 U.S.C.A. § 2254(d) and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overlooks the nature of the state court's determination. The issue of voluntariness in a situation such as presented here involves mixed questions of law and fact. It is well settled that such questions do not fall within the scope of § 2254(d). Mason v. Balcom, 531 F.2d 717, 721-722 (5th Cir. 1976); Lee v. Hopper, 499 F.2d 456, 462 (5th Cir. 1974), Cert. denied,419 U.S. 1053, 95 S.Ct. 633, 42 L.Ed.2d 650 (1974); Davis v. Heyd, 479 F.2d 446, 449 (5th Cir. 1973).
Conceding the difficulty of overturning a finding made by a federal district judge, the State does not contest the district court's determination that the statement made to the prosecuting attorney was legally involuntary. See Fed.R.Civ.P. 52(a); Collier v. Estelle, 506 F.2d 22, 24 (5th Cir. 1975). Looking to what evidence may be available for a new trial, the State contests the district court's ruling on the inadmissibility of the deposition.
The district court appears eminently correct on both counts. In Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976), the Supreme Court rejected a Per se rule of inadmissibility where a confession is made as a result of a plea bargain. In that case the plea bargain did not call for a confession. Against the advice of his attorney, Hutto made a statement in which he incriminated himself, even though it was made clear to him that the terms of the plea bargain would continue to be available to him without such a statement. The plea bargain was later withdrawn and the confession introduced at Hutto's trial. The Court held that the confession was not the result of any direct or implied promise and was voluntarily given. Conversely, a confession given as the result of a direct or implied promise would be legally involuntary.
Here, Gunsby made the statement to the prosecutor as a result of the promises made by the State in the plea bargain. That the original statement was part of the plea bargain is demonstrated by the fact that the State obtained nullification of the plea bargain on the ground that Gunsby's testimony at a codefendant's trial was inconsistent with that statement. The district court's conclusion that the statement was legally involuntary and inadmissible at Gunsby's state trial was thus compelled under Hutto.
The decision as to the deposition is somewhat more difficult. Prior to taking the deposition, the State prosecutor made this statement:
Just for the record, I would like to make some prefacing statements just so it be understood, that number one, that it be noted Mr. Milton is here representing Mr. Gunsby in this case; that he is a co-defendant along with Gerald Suggs, and that there was an order entered on June 27, by David Patterson, to show cause if any, why, if any cause can be shown, Earl Gunsby's agreement and negotiated plea with the State of Florida should not be negated or set aside based on the inconsistent statements and testimony in the trial of a third defendant, Tony Smith. And that he is here now subpoenaed as a defense witness.
At first glance, the prosecutor's statement would seem to create a factual situation identical to that of Hutto. The ultimate test, however, is whether the deposition was voluntarily given by the petitioner. See, e. g., United States v. Robertson, 582 F.2d 1356, 1363 n. 14 (5th Cir. 1978). On this issue, the district court made detailed findings of fact which belie this first impression of voluntariness and distinguish the instant case from Hutto.
In a revealing preface to its findings, the district court stated:
The petitioner's exposure to and experience with the criminal justice system at the time of the offense was minimal. Gunsby, who was twenty-one years old when the robbery was committed, had had only minor brushes with the law and had never been convicted of a felony prior to the instant case. He had completed the ninth grade and part of the tenth. His testimony indicates a complete reliance on the advice of his attorney and a failure to appreciate either the basic elements or the nuances of the fifth amendment and teachings of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court finds that the petitioner was not aware of the self-incriminating implications of either his statement or his deposition.
The court then made well-reasoned findings as to why the deposition was not legally voluntary.
Gunsby had been subpoenaed for the deposition by a co-defendant, Gerald Suggs. At the commencement of the deposition, counsel for the respondent made a statement regarding the pending motion to vacate the plea.
During the deposition the petitioner extensively inculpated himself and Gerald Suggs, and in general discussed the basic facts surrounding the robbery. The petitioner also discussed the planning of the robbery and the beating of Brown by Suggs and Harvey Baker. The petitioner was also questioned at the deposition by trial counsel for respondent, counsel for the co-defendant Suggs, and his own attorney.
At the evidentiary hearing...
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