Woods v. Clusen, 84-C-1377.

• Citation: 605 F. Supp. 890
• Decision Date: 13 March 1985
• Docket Number: No. 84-C-1377.,84-C-1377.
• Parties: Burdette WOODS, Petitioner, v. Donald CLUSEN, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

605 F. Supp. 890

Burdette WOODS, Petitioner, v. Donald CLUSEN, Respondent.

No. 84-C-1377.

United States District Court, E.D. Wisconsin.

March 13, 1985.

COPYRIGHT MATERIAL OMITTED

William J. Tyroler, Asst. Public Defender, Milwaukee, Wis., for petitioner.

Marguerite Moeller, Madison, Wis., for respondent.

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

"The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated."

Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1976) Following his plea of guilty, the petitioner, Burdette Woods, was convicted on charges of second degree murder and manslaughter in the Shawano county circuit court on August 20, 1981. The petitioner appealed his conviction on the ground that the trial court erroneously denied his motion to suppress a confession given to state investigators. The Wisconsin Supreme Court affirmed on March 27, 1984. State v. Woods, 117 Wis.2d 701, 345 N.W.2d 457 (1984). Mr. Woods now petitions for habeas corpus relief pursuant to 28 U.S.C. § 2254. Relief will be granted.

The facts are not seriously disputed. On September 10, 1979, Henry and Beryl Schwab were beaten to death in their Shawano county home. Mr. Woods, 16 years 9 months old at the time, had been seen near the Schwab home on the day or the day after the murders. Observers later noticed Mr. Woods watching the police investigation at the scene of the murders. By September 19, 1979, Mr. Woods was the prime suspect.

In the course of their investigation, police received reliable information indicating that Mr. Woods may have stolen a chain saw. Lacking probable cause to arrest Mr. Woods for the murders, sheriff's deputies decided to arrest him on the theft charge with the intention of questioning him about the Schwab case. By this time, Shawano county authorities had obtained the assistance of Wendell Harker and Robert Ankenbrandt, agents of the Wisconsin Department of Criminal Investigation.

On September 23, 1979, Mr. Woods and his brother were living with their grandparents in a trailer. On that date at about 7:30 a.m., Shawano deputies Trombi and Thorpe went to the trailer and were admitted by Mr. Woods' brother. The brother led the deputies to a bedroom where they found Mr. Woods asleep. One of the deputies woke the petitioner and placed him under arrest. Mr. Woods was handcuffed and put in the deputies' squad car.

On the way to sheriff's headquarters, Officer Trombi read Mr. Woods his Miranda rights and asked whether he understood them. Mr. Woods indicated that he did. Asked by Officer Trombi whether he wished to consult with an attorney, Mr. Woods nodded negatively. Officer Trombi then asked the petitioner whether he wished to answer questions or to make a statement. Mr. Woods did not respond.

After arriving at sheriff's headquarters, Mr. Woods was fingerprinted, photographed, and asked to provide background information. The petitioner was also required to remove his clothes and put on jail coveralls. He was not issued shoes and socks to replace his own, which he had taken off. At the end of the booking procedure, David Gage, a juvenile intake worker, asked the petitioner whether he had been read his rights. The petitioner responded affirmatively. Mr. Gage then asked whether the petitioner wished to consult with an attorney. The petitioner answered "No." The booking process lasted about 45 minutes.

When the booking process was completed, Officers Thorpe and Trombi took Mr. Woods into an "interrogation room." Mr. Woods was seated at a table without handcuffs, dressed in jail coveralls, barefoot. On the table one or two feet from Mr. Woods and clearly visible were gruesome photographs of the murder victims. Officers Thorpe and Trombi did not issue Miranda warnings before beginning to ask Mr. Woods questions. Nor did they inquire whether Mr. Woods was willing to submit to interrogation.

Officers Trombi and Thorpe interrogated the petitioner for 15 to 20 minutes. Officer Trombi told the petitioner that he knew that the petitioner had committed the murders and that things would be "better" or "go easier" if he talked. Officer Thorpe told Mr. Woods that police had evidence sufficient to prove his guilt, although Officer Thorpe later admitted that such evidence was lacking. At one point during the interrogation, Officer Trombi asked why the petitioner had gone into the woods near the victims' home the day after the murders. The petitioner responded, "I never went in the Woods the next day." The petitioner was otherwise mute throughout the interrogation, despite pleas of "Don't you want to talk about it now?" and "Do you want to talk to us?" Officer Thorpe testified that "all the petitioner would do is stare down at the wall." Although unresponsive, the petitioner was not unaffected by the interrogation; Officer Trombi testified that he became "quite emotional."

After Officers Trombi and Thorpe had completed their interrogation, they turned the petitioner over to agents Harker and Ankenbrandt, remarking to them that the petitioner "was not making any statements." Agent Harker asked Mr. Woods whether he had been informed of his rights, and Mr. Woods responded affirmatively. The state agents did not repeat the petitioner's constitutional rights, nor did they obtain the petitioner's consent before they began to ask questions.

Agents Harker and Ankenbrandt interrogated Mr. Woods for 20 to 30 minutes without eliciting any response. Agent Ankenbrandt later testified that he understood that the petitioner did not intend to answer questions:

Q. It appeared to you that he just didn't want to talk to you, isn't that right?

A. Yeah. He wasn't going to say anything.

Q. That he was exercising his right to remain silent, isn't that right?

A. Yes. He wasn't speaking.

Q. And you took from that he was exercising his right to remain silent?

A. Sure, everyone has that.

Tr. 47

During the interrogation, agents Harker and Ankenbrandt tried to persuade the petitioner that they knew he was guilty. At one point, agent Ankenbrandt showed the petitioner a fingerprint card with two prints circled in red and the wallet of one of the murder victims. Agent Ankenbrandt testified that he tapped these items and told the petitioner, "this is what is going to pin you down; or this is what's going to hang you, or something to that effect." Tr. 41. In fact, the petitioner's prints had not been found on the wallet. Agent Ankenbrandt testified that he intentionally deceived the petitioner in an attempt to elicit a confession.

After 20 to 30 minutes of interrogation by agents Harker and Ankenbrandt, the petitioner began to cry. Agent Harker then put his hand on the petitioner's shoulder in a "fatherly fashion." At that point, Mr. Woods broke his silence and confessed to the Schwab murders. In light of the constitutional principles established by the United States Supreme Court, it is clear that the petitioner's right not to incriminate himself was violated, and the state court erred when it declined to suppress his confession.

DISCUSSION

On habeas corpus review, the factual findings of the state court are presumed to be correct. 28 U.S.C. § 2254(d). The facts to which the presumption applies are "basic, primary, or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators.'" Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980), quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963). Whether the petitioner waived his fifth amendment rights is a mixed question of fact and law requiring an independent determination by this court. Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). See also Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

The fifth amendment's guarantee that "no person ... shall be compelled in any criminal case to be a witness against himself" is applicable to the states. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The fundamental idea of the privilege against self-incrimination is that "our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). Only statements which a suspect makes "in the unfettered exercise of his own will" may be used against him. Malloy, 378 U.S. at 8, 84 S.Ct. at 1493.

When a young person in custody is cut off from family and friends and subjected to questioning in a police-dominated atmosphere, there is a potential deprivation of his privilege against self-incrimination. "The very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weaknesses of individuals." Miranda, 384 U.S. at 455, 86 S.Ct. at 1617. Recognizing that incommunicado interrogation by police "is at odds with one of our nation's most cherished principles—that the individual may not be compelled to incriminate himself, ..." Id., at 457-58, 86 S.Ct. at 1619, the Miranda Court effectively established a presumption against the practice.

Despite its dangers, custodial interrogation is permitted provided the police observe certain rules intended to safeguard the suspect's constitutional rights. Before questioning, police must warn a suspect that he has a right to remain silent and that any statement he makes may be used against him. The suspect must also be told that he has the right to have an attorney present during interrogation and that an attorney will be provided if the suspect cannot afford to hire one. The suspect has no duty...