Agee v. White

• Citation: 809 F.2d 1487
• Decision Date: 13 February 1987
• Docket Number: No. 85-7749,85-7749
• Parties: Wayne Anthony AGEE, Petitioner-Appellant, v. J.D. WHITE, Warden and Attorney General of the State of Alabama, Respondents- Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1487

809 F.2d 1487

Wayne Anthony AGEE, Petitioner-Appellant, v. J.D. WHITE, Warden and Attorney General of the State of

Alabama, Respondents- Appellees.

No. 85-7749.

United States Court of Appeals, Eleventh Circuit.

Feb. 13, 1987.

Roger C. Appell, Birmingham, Ala., for petitioner-appellant.

Appeal from the United States District Court for the Northern District of Alabama

Before KRAVITCH and CLARK, Circuit Judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Wayne Anthony Agee, an Alabama inmate, appeals the denial of his petition for habeas corpus. At issue is whether two statements appellant gave to police were obtained in violation of appellant's rights under the fourth and fifth amendments and the due process clause of the fourteenth amendment. Appellant claims that both statements were tainted by his initial, illegal arrest. In addition, he contends that he gave the second statement, in which he confessed to committing rape, after an ineffective waiver of his Miranda rights.

The district court found that appellant's "taint" claim was precluded from federal habeas review by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), and that factual findings by the state courts compelled a determination that the second statement was voluntarily given. We affirm, but on grounds different than those relied upon by the district court.

I. BACKGROUND

On January 16, 1981, Myra Faye Tucker and Terry Wayne Tucker were abducted at gunpoint as they were leaving a nightclub in Birmingham, Alabama. They were first taken to an apartment, where Mrs. Tucker was raped, and then to a secluded area, where both were shot to death.

On January 21, several policemen arrived at appellant's place of employment, approached appellant with their guns drawn, handcuffed him, and took him to the Birmingham police station, where he was kept in a locked room for several hours before being questioned. After being read his Miranda rights, appellant gave a non-incriminating statement concerning events on the night of the crime. Although admitting that on that evening he had been with two men suspected in the crime, appellant denied any involvement in the rape and murders. At the end of the statement a police officer told appellant that he might be needed as a witness, and appellant agreed to participate in further questioning.

Six days later, a police officer appeared at appellant's workplace and requested that appellant accompany him to police headquarters for further questioning. The same officer who had initially questioned appellant again conducted the interrogation. Appellant once more was read his Miranda rights; he indicated that he understood his rights and that he voluntarily waived them. The officer made no further comment about wanting appellant to serve as a witness, but neither did he inform appellant that following his prior statement the police had acquired additional information tending to implicate him in the crime. During this questioning session, appellant admitted raping Mrs. Tucker, and the police immediately placed him under arrest.

Appellant was convicted of capital murder and was sentenced to life in prison without parole. The conviction was upheld on appeal. Agee v. State, 465 So.2d 1196 (Ala.Cr.App.1984), cert. denied, No. 84-333 (Ala.1985). Two other men also were convicted of capital murder in connection with the crime and received the same sentence.

In his petition for federal habeas corpus, appellant raised four claims, all of which were denied by the district court without an evidentiary hearing. On appeal, Agee maintains only two claims, both of which challenge the constitutionality of his statements to the police. He contends first that the statements were "tainted" by the illegality of his initial arrest by police without probable cause. Second, he argues that the second and incriminating confession was involuntary, and thus inadmissible, because he believed that an officer's remark at the first questioning session that Agee might be used as a witness contained an implicit promise of immunity against prosecution. We find both claims without merit.

II. "TAINT" FROM THE ILLEGAL ARREST

The district court found appellant's fourth amendment challenge to the admission of the statements foreclosed by Stone v. Powell, supra, in which the Supreme Court held that federal habeas courts are precluded from addressing fourth amendment exclusionary claims that have had a full and fair opportunity for litigation in the state courts. See also Cardwell v. Texas, 461 U.S. 571, 103 S.Ct. 2015, 76 L.Ed.2d 333 (1983) (per curiam) (holding Stone v. Powell preclusion applicable to confessions challenged on fourth amendment grounds).

We agree with the district court that, under the doctrine of Stone v. Powell, Agee's challenge to his first statement is foreclosed on habeas review. The trial court admitted the statement only after a full evidentiary hearing on appellant's motion to exclude. On direct appeal, the Alabama Court of Criminal Appeals assumed arguendo that the statement was improperly admitted, but concluded, in view of the incriminating admission in the second statement, that the introduction of the nonincriminating first statement was harmless. This harmlessness finding constituted a full and fair appellate litigation, foreclosing the claim from federal habeas review. Cole v. Estelle, 548 F.2d 1164 (5th Cir.1977); ¹ see Stone v. Powell, 428 U.S. at 470, 96 S.Ct. at 3040 (admission of evidence challenged by habeas petitioner had been found harmless by state court and thereby was precluded from federal habeas review).

Appellant's fourth amendment challenge to the second statement, in contrast, did not receive a similar hearing in the state appellate court. Although both at trial and on direct appeal appellant argued that the second statement was inadmissible because of the residual taint from the initial, illegal arrest, the Alabama Court of Criminal Appeals ignored this contention in its opinion. The claim, accordingly, is properly before this court, for the appellant did not receive a "full and fair consideration of his search-and-seizure claim at trial and on direct review." Stone v. Powell, 428 U.S. at 486, 96 S.Ct. at 3048 (emphasis added); see O'Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir.1977) (" 'full and fair consideration' " includes "availability of meaningful appellate review" when facts are in dispute, and "full consideration" by an appellate court when the facts are not in dispute); cf. Caver v. Alabama, 577 F.2d 1188, 1191 (5th Cir.1978) (actual state court consideration not required for Stone v. Powell preclusion where habeas petitioner has missed "opportunity" to litigate by failing to raise claim at trial or on direct appeal).

To succeed on his fourth amendment claim, appellant must demonstrate not only that his initial arrest was illegal, but also that the connection between the initial police illegality and the second confession was not " 'so attenuated as to dissipate the taint' " of the arrest. Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939)).

We have little difficulty concluding that the initial seizure of appellant by the police was illegal. At a pretrial hearing, a police sergeant involved in the investigation testified that the officers did not have probable cause to arrest appellant when they first took him into custody for questioning. The only evidence linking appellant to the crime, the sergeant testified, was an anonymous telephone call advising the police that appellant was involved. The trial court nevertheless admitted appellant's statements into evidence, apparently under the rationale that appellant's initial encounter with police was not an "arrest" but rather an "invitation" to talk. ² This conclusion, however, is unsupported by the record. Appellant gave unrefuted testimony that five or six officers confronted him at his workplace with guns drawn, handcuffed him, and then transported him to the police station, where he was placed in a locked room for three hours prior to questioning. Clearly, such an "invitation" was not one to be refused. Indeed, appellant not only was not "free to go," he in fact was "physically restrained" with handcuffs. See Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979). The seizure of appellant thus was "in important respects indistinguishable from a traditional arrest," and could be justified only upon a showing of probable cause. Id.

Because the police did not have probable cause to arrest appellant, the initial seizure was illegal, and any confession subsequently acquired by the police must be excluded "unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is 'sufficiently an act of free will to purge the primary taint.' " Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667, 73 L.Ed.2d 314 (1982) (quoting Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)). The admissibility of the second statement thus depends upon whether the statement was acquired "by the exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417. Several factors are relevant in making this determination, including "[t]he temporal proximity of the arrest and confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct." Brown v. Illinois, 422 U.S. at 603-04, 95 S.Ct. at 2261-62 (footnotes and citations omitted). Also relevant, but not determinative, is whether Miranda warnings were administered prior to the confession. Id.; Taylor v. Alabama, supra; see, e.g., United States v. Edmondson, 791...