671 F.2d 1150 (8th Cir. 1982), 81-1589, Stumes v. Solem

Docket Nº:81-1589.
Citation:671 F.2d 1150
Party Name:Norman STUMES, Appellant, v. Herman SOLEM, Appellee.
Case Date:March 01, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1150

671 F.2d 1150 (8th Cir. 1982)

Norman STUMES, Appellant,

v.

Herman SOLEM, Appellee.

No. 81-1589.

United States Court of Appeals, Eighth Circuit

March 1, 1982

Submitted Nov. 12, 1981.

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[Copyrighted Material Omitted]

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Mark V. Meierhenry, Atty. Gen., Judith Atkinson, Asst. Atty. Gen. (argued), Pierre, S. D., for appellee.

Timothy J. McGreevy (argued), Dana, Golden, Moore & Rasmussen, Sioux Falls, S. D., for appellant.

Before HENLEY and ARNOLD, Circuit Judges, and HARRIS, [*] Senior District Judge.

ARNOLD, Circuit Judge.

Petitioner Norman Stumes appeals the decision of the District Court denying his petition for a writ of habeas corpus. Because the recent ruling of the Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), requires a different result, we reverse.

I.

We summarize the relevant facts of the case as detailed by the District Court in its opinion, reported at 511 F.Supp. 1312. There is little or no disagreement as to what happened.

On September 17, 1973, the body of Joyce Hoff was discovered in her apartment in Sioux Falls, South Dakota, the apparent victim of a homicide. During the investigation of the crime by Sioux Falls police, the petitioner became one of several suspects. At the time he had pending against him several unrelated charges. Petitioner was represented on one of the charges by Steve Jorgensen, a Sioux Falls attorney who had previously represented him on other matters. Petitioner's mother, upon learning that petitioner was being sought by police in connection with the homicide, contacted Jorgensen and retained him to represent her son. 1 Petitioner had not yet been formally charged with homicide in the death of Joyce Hoff.

After being retained by petitioner's mother, Jorgensen subsequently contacted Don Skadsen, Chief of Detectives with the Sioux Falls police, to tell him that he knew the police were looking for petitioner. According to Jorgensen's testimony at the evidentiary hearing in the District Court, he then struck a deal with the police under which, if petitioner contacted him first, he would persuade petitioner to surrender to police and, in turn, if the police found petitioner first, they would contact Jorgensen and permit him to talk to petitioner before they questioned him. Jorgensen stated that, as far as he was concerned, the police fulfilled their obligation under the agreement.

On September 27, 1973, petitioner was arrested in Green Bay, Wisconsin, on charges unrelated to the Hoff homicide. He was informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and placed in the Brown County Jail in Wisconsin to await transportation back to Sioux Falls. Jorgensen, his attorney, was subsequently notified of petitioner's arrest by Detective Skadsen. The morning after his arrest, petitioner telephoned Jorgensen, who told him not to make any statements to police until he had returned to Sioux Falls and discussed the matter with Jorgensen. Later that week, Jorgensen encountered Sergeant James Green of the Sioux Falls police outside

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police department headquarters. Jorgensen informed Green that he had advised petitioner not to talk to the police but then added that, knowing Green, he would have a confession out of petitioner before he got him back to Sioux Falls. 2

On September 30, 1973, police officers Skadsen and Green flew to Green Bay to bring petitioner back to Sioux Falls in order to stand trial on the other charges as well as for questioning in the Hoff homicide. That same day, Minnehaha County Deputy Sheriff Hendrick drove to Green Bay in a sheriff's automobile to be used in transporting petitioner to Sioux Falls.

On the morning of October 1, 1973, after executing a consent form for the search of his car and residence, petitioner was moved from the Brown County Jail to the Green Bay Police Department for questioning. While other police officers searched petitioner's car and room, Sergeant Green remained behind to question petitioner. After being advised of his rights at approximately 10:00 a.m., petitioner stated that he understood his rights and that he had no objection to speaking to police without the presence of his attorney. Green then proceeded over the course of an hour and a half to question petitioner about the death of Joyce Hoff. Petitioner, however, made no statements implicating himself in the homicide. A short time later, petitioner was asked by Green if he would submit to a polygraph examination on the Hoff case. Petitioner stated that he would rather not answer until he talked to his lawyer, Steve Jorgensen. Green stopped his questioning at this point, but told petitioner that officers would visit him again in the afternoon. Petitioner was then returned to the county jail at approximately 11:45 a.m.

Detectives Skadsen and Green revisited petitioner at about 4:30 p.m. No Miranda warning was given. Petitioner was asked about certain discovered evidence that placed him in Joyce Hoff's apartment on the day of her death. Petitioner admitted being in the decedent's apartment on September 17 and having intercourse with her at that time. He denied any responsibility for her death. After about half an 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." 511 F.Supp. at 1316. The questioning immediately ended.

Around 9:00 a.m. the next morning petitioner was taken from the county jail by Skadsen, Green, and Deputy Sheriff Hendrick and placed in the sheriff's automobile for the trip back to Sioux Falls. Shortly after the trip began, petitioner was informed of his Miranda rights and asked whether he understood them. Upon indicating his comprehension, petitioner was then asked by the police officers if he was willing to talk to them. Petitioner, according to the testimony of Skadsen and Green, shrugged his shoulders and nodded his head forward. He was then questioned about the death of Joyce Hoff. The discussion of the case did not go beyond questions previously asked of petitioner the day before at the county jail and lasted only fifteen or twenty minutes on that occasion.

It is 600 miles from Green Bay to Sioux Falls, and the trip took from about 9:00 a.m. to about 6:45 p.m. In addition to the questioning that took place at the beginning of the trip, there was "intermittent questioning" about the Hoff homicide "during (the) time period" of the trip. Tr. 85. Petitioner and the officers also engaged in general conversation. Approximately 90 miles from Sioux Falls, however, petitioner became emotional and stated that he "couldn't understand why anybody would want to kill Joyce and that the taking of a

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human life is so useless." 3 Sergeant Green then told petitioner that he would feel much better if he "got it off his chest." Petitioner stated that he had been wanting to tell somebody, but he just did not know how to go about doing it. He then proceeded, according to Skadsen and Green, to relate how he had killed Joyce Hoff on September 17, 1973. 4

After petitioner had given his account of how Joyce Hoff died that night, Green asked him if he would be willing to give a statement to the police when they arrived in Sioux Falls. Petitioner agreed. At that point, according to Skadsen and Green, the following colloquy occurred:

Q. Your attorney will undoubtedly advise you not to give one (statement).

A. I don't give a damn what he says. I'm doing anything I feel like, and I'll talk to anybody I want to.

511 F.Supp. at 1317. Skadsen and Green testified that that was the first time during the day that petitioner had mentioned his attorney.

Petitioner and the police officers arrived at the Minnehaha...

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