Woods v. Clusen, 85-1618

• Citation: 794 F.2d 293
• Decision Date: 25 June 1986
• Docket Number: No. 85-1618,85-1618
• Parties: Burdette WOODS, Petitioner-Appellee, v. Donald CLUSEN, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 293

794 F.2d 293

55 USLW 2079

Burdette WOODS, Petitioner-Appellee, v. Donald CLUSEN, Respondent-Appellant.

No. 85-1618.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 1, 1985.

Decided June 25, 1986.

William J. Tyroler, Wis. Public Defender Office, Milwaukee, Wis., Jack E. Schairer, Asst. Public Defender, Madison, Wis., for petitioner-appellee.

Sally Wellman, Asst. Atty. Gen., Dept. of Justice, Madison, Wis., for respondent-appellant.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

WILLIAM J. CAMPBELL, Senior District Judge.

Petitioner Burdette Woods pled guilty and was subsequently adjudged guilty of second degree murder and manslaughter in the Circuit Court for Shawano County, Wisconsin for the beating death of Henry and Beryl Schwab. An oral confession obtained from Woods while in police custody played a pivotal role in petitioner pleading guilty. Prior to pleading guilty Woods brought a motion to suppress the oral confession. The trial court denied the motion. Woods took direct appeal to the Court of Appeals of Wisconsin pursuant to Wisconsin Statute Sec. 971.31(10). The Court of Appeals affirmed in an unpublished order. Subsequently the Wisconsin Supreme Court reviewed the circumstances surrounding the confession and affirmed the rulings of the lower tribunals. See State v. Woods, 117 Wis.2d 701, 345 N.W.2d 457 (1984). Woods then petitioned for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Eastern District of Wisconsin, 605 F.Supp. 890. Judge Myron Gordon applied a "totality of circumstances" analysis to the facts surrounding the obtaining of the oral confession and concluded the police violated federal constitutional safeguards. He granted habeas corpus relief. We now review the district court ruling pursuant to 28 U.S.C. Sec. 1291. We affirm Judge Gordon's ruling.

On September 10, 1979, Henry and Beryl Schwab were beaten to death in their Shawano County home. While local police were investigating the murder scene petitioner Woods was observed watching the events unfold from a distance. His presence and interest caused him to become a prime suspect. However, several days into the investigation police had no probable cause to arrest him.

Shortly thereafter police received information that petitioner had attempted to sell a stolen chain saw to a local resident approximately seventeen months earlier. Police obtained a statement to this effect from the person to whom the sale was attempted. Lacking the requisite probable cause to arrest Woods for the Schwab murders, the police decided to arrest petitioner on a theft charge in order to bring him into custody to question him about the Schwab incident. On September 23, 1979 at 7:30 a.m. Shawano police officers Trombi and Thorpe drove to the trailer of petitioners' grandparents where the sixteen and one-half year-old Woods lived. After gaining entrance with the consent of a family member, the police walked into petitioner's bedroom and awakened and arrested him. Woods was handcuffed and placed in a police car.

While in transit to police headquarters petitioner was read his Miranda rights and asked if he understood them. Woods responded affirmatively. Woods was also asked if he wished to consult an attorney to which he answered in the negative. When asked if he would like to answer any questions or make a statement Woods did not respond. Woods arrived at police headquarters at approximately 8 a.m. A juvenile intake worker, David Gage, asked Woods many of the same questions concerning his understanding of his Miranda rights and his opportunity to consult an attorney. Woods continued to state he understood his rights and did not wish the presence of counsel. At this point Woods was fingerprinted, photographed and asked to remove his clothes and don jail overalls. He was not issued shoes or socks and was left barefoot.

After approximately forty-five minutes the booking process was completed and Woods was taken to a room to be interrogated by Officers Thorpe and Trombi. Woods was seated at a table, still barefoot and dressed in jail clothing but unrestrained. Approximately one to two feet away from Woods were pictures of the Schwab murder scene. Officers Thorpe and Trombi did not repeat the Miranda warnings to Woods. They did ask several times if Woods was willing to talk to them. The petitioner never responded. Without Woods' explicit consent the officers proceeded to interrogate Woods about the Schwab case for approximately fifteen to twenty minutes. Several intimidating and deceptive tactics were employed by the officers to get Woods to talk. First, there were the disturbing pictures of the murder scene and the jail house clothing. In addition to this, Officer Thorpe misrepresented that police officials had enough evidence to convict Woods regardless of whether he talked. The officers admit this statement was not true. Officer Trombi further suggested things would "be better" or "go easier" if Woods talked, in view of the fact he knew Woods committed the murders. Trombi testified petitioner became visibly emotional during the interrogation. At one point when Officer Trombi asked petitioner why he was in the woods the day after the murders Woods responded, "I never went in the woods the next day." Nonetheless, except for this statement and despite the police tactics mentioned above Woods, although clearly emotionally involved, remained unresponsive.

Having reached an apparent impasse, Officers Trombi and Thorpe left the room. Two fresh investigators, Robert Ankenbrandt and Wendell Harken of the Wisconsin Division of Criminal Investigation, entered the interrogation room to commence their own interrogation. Harken asked Woods if he had been advised of his rights and Woods replied affirmatively. Harken and Ankenbrandt then initiated their own questioning. More deceptive tactics were employed to elicit an incriminating response from Woods during this second interrogation. Agent Ankenbrandt testified he produced a fingerprint card with two prints circled in red and the wallet of one of the murder victims and declared to Woods, "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. Ankenbrandt admits this statement was untrue and intentionally advanced to trick Woods into confessing. Indeed, no fingerprints were found on the wallets of the victims. After twenty to thirty minutes of continuous interrogation, Woods began to cry. Agent Harken then put his hand on Woods' shoulder in a paternal manner. It was at this point Woods orally confessed to the Schwab murders. ¹

In this case we are asked to determine whether petitioner Burdette Woods knowingly and voluntarily waived his right to remain silent as well as his right to counsel within the spirit of the Fifth and Fourteenth Amendments to the United States Constitution. Were the conduct and tactics employed by police officials so psychologically overwhelming and offensive that they violated Woods' Fifth Amendment privilege against compelled self-incrimination and the Due Process Clause of the Fourteenth Amendment? Did the police actions remain within constitutionally permissible bounds and did Woods, by his course of conduct, waive his rights and decide to confess willfully, rationally and freely? We conclude the conduct of the police under the circumstances of this case violated the constitutional principles and safeguards which have been enunciated in past Supreme Court caselaw. The habeas corpus relief granted at the district court level was appropriate.

An individual has a right to be free from compelled self-incrimination while in police custody under the Fifth and Fourteenth Amendments to the United States Constitution. (See generally Miranda v. State of Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966)). To safeguard this principle an individual, when placed under arrest by police officers, is given the Miranda warnings: that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. An individual can waive the above rights provided a court finds the waiver was knowingly, intelligently and voluntarily made. (See Miranda, supra, 384 U.S. at 479, 86 S.Ct. at 1630; see also North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979)). If police interrogation continues without the presence of an attorney and a statement is obtained from an individual "... a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege ... a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628. "... the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forego his rights to remain silent and to have the assistance of counsel." Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979) (citing Miranda, supra). "This totality of the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved." Fare, supra, 442 U.S. at 725, 99 S.Ct. at 2572. "The totality approach ... includes evaluation of the juvenile's age, experience, education, background, and intelligence, and (inquiry) into whether he has the capacity to understand the warnings given him,...