Fields v. Wyrick

• Decision Date: 28 May 1982
• Docket Number: No. 81-1245,81-1245
• Citation: 682 F.2d 154
• Parties: Edward FIELDS, Appellant, v. Donald WYRICK, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 154

682 F.2d 154

Edward FIELDS, Appellant, v. Donald WYRICK, Appellee.

No. 81-1245.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1981.

Decided April 23, 1982.

Rehearing and Rehearing En Banc Denied May 28, 1982.

Jeffrey E. Hartnett, Clayton, Mo., for Edward Fields.

John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, and HEANEY and ROSS, Circuit Judges.

HEANEY, Circuit Judge.

Edward Fields appeals from the district court's denial of his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. We reverse the lower court on the ground that Fields' state court conviction was obtained as a result of his involuntary confession. Federal habeas corpus relief, therefore, should have been granted.

Fields, a soldier then stationed at Fort Leonard Wood, was charged with raping a Waynesville, Missouri, woman on September 21, 1974. He was convicted by a jury on March 13, 1975, and was sentenced to twenty-five years imprisonment. His conviction was affirmed on appeal. State v. Fields, 538 S.W.2d 348 (Mo.Ct.App.1976).

Fields subsequently filed three successive motions to set aside his conviction under Rule 27.26 of the Missouri Rules of Criminal Procedure. These motions were denied. Fields v. State of Missouri, 596 S.W.2d 776 (Mo.Ct.App.1980); Fields v. State of Missouri, 572 S.W.2d 477 (Mo.1978). Fields then sought a writ of habeas corpus, citing various grounds allegedly justifying relief. Only one of these asserted errors concerns us on appeal, i.e., Fields' contention that the trial court erroneously admitted testimony regarding his "involuntary confession." ¹

Our recitation of the circumstances leading up to Fields' confession relies primarily on facts either stipulated to by the parties at the suppression hearing or as set out in the court's opinion affirming Fields' conviction on direct appeal. Fields was arrested on September 25, 1974, and charged with rape. He was released on his own recognizance and retained private defense counsel. After discussing the matter with his counsel and a military attorney, Fields consented to the administration of a polygraph examination in connection with the rape charge. The examination was conducted on December 4, 1974, by Jesse Merl Bourne, Jr., an agent with the United States Army Criminal Investigation Division (CID) at Fort Leonard Wood. Although an attorney is allowed to be present during a CID polygraph examination, Fields' counsel was not invited to be present, nor was he informed that the test would be given that day. Before the polygraph examination was given, Fields was advised that he had the right to remain silent and to have an attorney present, and he signed a written form consenting to the examination.

After the examination was completed, Bourne told Fields that there "had been some deceit" and asked him if he had some explanation as to why his answers were bothering him. Fields thereupon stated that he had had intercourse with the victim on September 21, 1974, but that she had instigated and consented to the contact. Bourne then asked Fields if he wished to discuss the matter further with another CID agent, Charles Fann, and the Waynesville Chief of Police, James Cole. Fields agreed to do so. Police Chief Cole gave Fields the Miranda warnings before questioning him. Fields repeated to Cole and Agent Fann his account of what happened on September 21, i.e., that the victim had voluntarily engaged in sexual relations with him at her residence.

Fields sought to suppress the testimony of Police Chief Cole and Agents Bourne and Fann regarding his "confession" to voluntary intercourse. On the day of Fields' trial, a hearing was held on Fields' motion, at the conclusion of which the trial court stated the following:

Well, I'm going to overrule the Motion to Suppress for the reason that this defendant on several occasions was advised what his rights were.

It's true that he was represented by counsel and he talked to counsel about it. And while I'm inclined to believe that we ought to make every effort to protect the rights of individuals, grant them their constitutional rights, still, after the defendant is advised not on one occasion, but on several occasions, what his rights are, then he voluntarily requests and puts himself in position for making statements which-with the understanding that they might be used against him, I think that in this case that he waived those rights and I would have to overrule the Motion to Suppress.

The trial court did not enter written findings of fact or conclusions of law on the motion to suppress.

The propriety of this ruling was the sole issue raised in Fields' direct appeal of his conviction. The Missouri Court of Appeals stated that Fields' pleadings or briefs did not preserve anything for appellate review, but went on to "briefly" consider Fields' constitutional claim under a "plain error" standard. State v. Fields, supra, 538 S.W.2d at 349-350. The court concluded that the motion to suppress was properly denied because "defendant had been repeatedly and amply advised of his rights (and) voluntarily, knowingly and intelligently waived his rights." Id. at 350.

We are mindful of the Supreme Court's recent admonition that in federal habeas corpus proceedings the court must apply a "presumption of correctness" to factual determinations made by the state courts. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722, 731 (1981). The applicable statute provides that this "presumption of correctness" applies to a state court's "determination after a hearing on the merits of a factual issue * * * evidenced by a written finding, written opinion, or other reliable and adequate written indicia." 28 U.S.C. § 2254(d). The presumption does not, of course, attach to a state court's resolution of a question of federal law or to "a mixed determination of law and fact that requires the application of legal principles to the historical facts of (a) case." Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980). ² As the Supreme Court has noted, the question of whether or not a defendant has effectively waived his constitutional rights is not one of fact but of federal law. See Brewer v. Williams, 430 U.S. 387, 397 n.4, 97 S.Ct. 1232, 1238 n.4, 51 L.Ed.2d 424 (1977). Accordingly, we have accepted those "basic, primary or historical facts" ³ determinated by the state courts, ⁴ while independently reviewing the legal conclusion drawn therefrom.

After a careful review of the record and the state court's findings, we conclude that Fields did not knowingly and intelligently waive his right to have counsel present at the interrogation described above. Fields' incriminating statements were, therefore not voluntarily made and should have been suppressed. ⁵

It has been clear since Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that "the right to have counsel present at (an) interrogation is indispensable to the protection of the Fifth Amendment privilege" against self-incrimination. Id. at 469, 86 S.Ct. at 1625. This aspect of the Miranda ruling reflects the Court's concern that "the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators." Id.

The importance of the right to have counsel present during a custodial interrogation has recently received renewed emphasis. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that once a suspect invokes his right to counsel, he is not subject to further interrogation until counsel is provided to him, unless the suspect himself initiates dialogue with the authorities. In so ruling, the Court apparently sought to buttress the right to counsel by creating a per se rule restricting the circumstances under which a court can find that the right has been waived. See Note, Edwards v. Arizona: The Burger Court Breathes New Life Into Miranda, 69 Cal.L.Rev. 1734, 1746-1747 (1981). Objective criteria controls the waiver determination when a suspect has invoked the right to counsel: either counsel must be present at subsequent custodial interrogations or else the dialogue at issue must have been initiated by the accused.

The per se rule enunciated in Edwards does not resolve the issue present here. Fields and his counsel mutually agreed that Fields should take the polygraph examination, Fields appeared at the examination without his counsel and stated that he did not want counsel present during the examination. Fields thereby "initiated" further dialogue with the authorities after his right to counsel had been invoked. Accordingly, the question of whether Fields waived his right to have his counsel present at the subsequent interrogation becomes more complex. The Edwards Court stated that

if * * * in the course of a meeting initiated by the accused, the conversation it not wholly one-sided (and) the officers * * * say or do something that clearly would be "interrogation" * * * the question would be whether * * * the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.

Edwards v. Arizona, supra, at 486 n.9, 101 S.Ct. at 1885 n.9, 68 L.Ed.2d at 387 n.9. ⁶ The burden of proving that a defendant has knowingly and voluntarily waived his right to have counsel present at an interrogation rests with the government, and the Supreme Court has characterized that burden as a "heavy" one. See Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. at 1628.

Regardless of whether the Edwards per se rule is strictly applicable, the clear import of the Edwards decision is to affirm that a defendant's right to have counsel present at custodial...