Stumes v. Solem

• Citation: 752 F.2d 317
• Decision Date: 08 January 1985
• Docket Number: No. 81-1589,81-1589
• Parties: Norman STUMES, Appellant, v. Herman SOLEM, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 317

752 F.2d 317

Norman STUMES, Appellant, v. Herman SOLEM, Appellee.

No. 81-1589.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1984.

Decided Jan. 8, 1985.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

This case comes to this Court on remand from the United States Supreme Court. Solem v. Stumes, --- U.S. ----, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). In our earlier decision, 671 F.2d 1150 (1982), we applied the per se rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), to exclude confessions that Stumes made without the presence of counsel after he had invoked his right to counsel. The Supreme Court reversed, holding that the per se rule of Edwards is not retroactive and should not have been applied to bar the admission of Stumes's confessions. Accordingly, the Court remanded for us to evaluate the admissibility of the confessions under its pre-Edwards decisions and those of this Circuit. 104 S.Ct. at 1346. Having done so, we now affirm the District Court's denial of the petition for habeas corpus.

I.

The facts of this case were fully stated in our previous decision and will only be summarized here. In September 1973, the police in Sioux Falls, South Dakota, suspected that Norman Stumes was responsible for the death of Joyce Hoff. After receiving word that Stumes had been arrested on September 27 in Green Bay, Wisconsin, on charges of perjury and check fraud, three Sioux Falls police officers (Skadsen, Green, and Hendrick) went to Green Bay to bring Stumes back. At this time, Stumes had not yet been charged with Hoff's death. On September 28, Stumes called his lawyer from the Green Bay jail. His lawyer instructed him not to make any statements before returning to South Dakota.

About 10:00 on the morning of October 1, Green questioned Stumes at the Green Bay Police Department. After being read his Miranda rights, Stumes stated that he understood them and did not object to speaking with the police without an attorney present. At the end of the hour-and-a-half questioning session, Green asked Stumes if he would submit to a polygraph test on the Hoff case. Stumes replied that "that is a question I'd rather not answer until I talk to [my attorney]." Questioning then stopped, but the officers told Stumes that they would return later that afternoon for further questioning.

About 4:30 that afternoon, Skadsen recommenced questioning without giving Stumes new Miranda warnings. Stumes admitted he had been in Hoff's apartment the night of the killing and that he had had intercourse with Hoff, but he denied having anything to do with her death. Green asked Stumes whether Hoff's death was intentional or accidental, and Stumes responded that it was accidental. Stumes 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." Following this remark, at about 5:00, the questioning ended.

The following morning, the three officers and Stumes left Green Bay by car on the trip back to Sioux Falls. At the beginning of the trip Stumes was given his Miranda rights again and was asked if he was willing to talk. He shrugged and nodded affirmatively. He was questioned intermittently about the Hoff murder. Late in the afternoon, after a 10-to-15 minute silence, Stumes had what he called "a little conflict with my emotions" and stated "that I couldn't understand why anyone would want to kill Joyce and that the taking of a human life is so useless." Green told him he would feel better if he "got it off his chest." Stumes then recounted strangling Hoff after she told him that she would tell Stumes's girlfriend that she and Stumes had slept together. After this confession, Green asked if Stumes would give a statement when he reached Sioux Falls, and pointed out to Stumes that his attorney would advise against giving such a statement. Stumes replied, "I don't give a damn what [my attorney] says. I'm doing anything I feel like, and I'll talk to anybody I want to."

After arriving at the Sioux Falls jail about 6:45 that evening, Stumes was put into a cell. Shortly afterwards he called Officer Skadsen to the cell. He was sobbing and placed his head on Skadsen's shoulder, and asked Skadsen to "tell them that I didn't mean to kill her--that I'm not a vicious killer."

Stumes was charged with murder. After a hearing on a motion to suppress Stumes's confessions, the trial court denied the motion. A jury convicted Stumes of first-degree manslaughter, and sentenced him to life imprisonment. On direct appeal, the State Supreme Court remanded for a determination of whether Stumes's statements had been voluntary. State v. Stumes, 90 S.D. 382, 241 N.W.2d 587 (1976). The trial court found they had. Stumes then filed this petition for a writ of habeas corpus in the United States District Court for the District of South Dakota, which the District Court ¹ denied. Stumes v. Solem, 511 F.Supp. 1312 (D.S.D.1981).

On appeal from the District Court's denial of habeas relief, Stumes argues that the state trial court violated his Fifth Amendment right against self-incrimination in failing to suppress the statements he made. ² For purposes of analyzing the admissibility of these statements, we shall divide them into four groups: the first interview (the statements made on the morning of October 1, which all parties agree were not incriminatory); the second interview (the statements made on the afternoon of October 1), the third interview (the statements made during the car trip to Sioux Falls on October 2); and the fourth interview (the statements in the Sioux Falls jail on October 2).

II.

A. The Second Interview

The District Court held that the statements made during the second interview were inadmissible because they were made without Miranda warnings. 511 F.Supp. at 1323. However, the court found that the admission of these statements was harmless error because other evidence proved Stumes's guilt beyond a reasonable doubt. Id. On appeal, Stumes urges that the District Court erred in finding that the admission of the second interview was harmless error. The State denies this claim and further argues as an alternative ground for affirmance that the District Court erred in holding the second interview inadmissible. It claims that the second interview was admissible despite the absence of Miranda warnings because Stumes voluntarily and knowingly waived his Fifth Amendment rights to remain silent and to have a lawyer present.

The determination whether an accused has knowingly and voluntarily waived his Miranda rights depends on all the facts of each particular case. Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979). These circumstances include the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461 (1938). Here the District Court concluded that Stumes had not voluntarily and knowingly waived his rights during the second interview because he was not given fresh Miranda warnings before the interview. Two considerations arguably support this conclusion: first, the second interview came nearly five hours after the first interview and nearly six-and-a-half hours after Miranda rights had been given; second, Stumes invoked his right to counsel in refusing to decide whether to take a polygraph exam.

The State argues that under the totality of the circumstances the time lag and the request for counsel as to the taking of a polygraph test did not invalidate Stumes's initial waiver. Although this is a close question, we agree and hold that the State has met its heavy burden of showing that Stumes voluntarily and knowingly waived his rights during the second interview. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966).

The nearly five-hour break between the interviews does not of itself invalidate the initial waiver. The significance of this elapsed time must be assessed in view of Stumes's knowledge and conduct and other relevant circumstances. As his testimony in the state court clearly reflects, Stumes is an intelligent and articulate adult. At the time of the second interview, he had already twice received his Miranda warnings (on the day he was arrested and at the beginning of the first interview), and in addition was familiar with criminal procedures from past involvement with the criminal-justice system. On the day after his arrest, three days before the second interview, he discussed his rights with his attorney, who advised him not to talk to the police. Despite this advice, Stumes voluntarily agreed to talk to the police and expressly waived his Miranda rights on the morning of October 1.

In addition, Stumes's conduct both before and during the second interview indicates that he was fully aware of his rights. At the conclusion of the first interview, Stumes refused to decide whether to take a polygraph test without first talking to his lawyer. The police then ceased questioning and apparently did not raise this issue again at a later interview. In both the first and second interviews Stumes indicated his knowledge of his right to remain silent by selectively choosing which questions to answer. Further, in asserting his right to counsel at the end of the second interview, after he had stated that Hoff's death was accidental, Stumes again demonstrated that he was aware of his right to counsel and his right to remain silent.

Stumes's refusal to agree to a polygraph test without first talking to his counsel also does not warrant a finding that he failed to voluntarily and knowingly waive his Miranda rights. His refusal was not itself a general invocation of his right to remain silent or to the presence of counsel but applied only to the particular question asked. ³ While a general...