809 F.2d 463 (8th Cir. 1987), 84-2089, Hamilton v. Nix

Docket Nº:84-2089.
Citation:809 F.2d 463
Party Name:Reed Wayne HAMILTON, Appellant, v. Crispus NIX, Warden, and Attorney General of the State of Iowa, Appellees.
Case Date:January 12, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 463

809 F.2d 463 (8th Cir. 1987)

Reed Wayne HAMILTON, Appellant,

v.

Crispus NIX, Warden, and Attorney General of the State of

Iowa, Appellees.

No. 84-2089.

United States Court of Appeals, Eighth Circuit

January 12, 1987

Submitted May 15, 1986.

Page 464

John C. Wellman, Des Moines, Iowa, for appellant.

Brent R. Appel, Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, and HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL, Circuit Judges, en banc.

BOWMAN, Circuit Judge.

Reed Hamilton was convicted in Iowa state court of first degree murder and voluntary manslaughter for the deaths of Cathy Larson and Nick Pappas, Jr. The Iowa Supreme Court affirmed both convictions on direct appeal. State v. Hamilton, 335 N.W.2d 154 (Iowa 1983). Hamilton then petitioned under 28 U.S.C. Sec. 2254 for a writ of habeas corpus. He alleged that (1) key prosecution witnesses and certain evidence admitted at trial were discovered only because of earlier police violations of his Fifth and Sixth Amendment rights, and, thus, being "fruit of the poisonous tree," were improperly admitted at trial; (2) improper statements made by the prosecution during its opening statement and its closing argument deprived him of a fair trial; and (3) there was insufficient evidence to convict him of first degree murder on a felony murder theory. The District Court 1 rejected each of those contentions and denied the petition. Hamilton v. Nix, Civil No. 83-454-B (S.D.Iowa June 27, 1984) (unpublished memorandum opinion and order). Hamilton appealed, and a panel of this Court, with one judge dissenting, reversed, holding that the state trial court committed constitutional error in admitting certain witness testimony and physical evidence as part of the prosecution's case. The panel reasoned that the challenged testimony and evidence were "fruit of the poisonous tree" because their discovery and procurement were "inextricably linked" with the prior police misconduct, and concluded that the evidence was not admissible under the "attenuation," "independent source," or "inevitable discovery" exceptions to the exclusionary rule. Hamilton v. Nix, 781 F.2d 619 (8th Cir.1985) (panel opinion). In so holding, the panel applied the analysis set forth in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). This Court granted the State's petition for rehearing en banc. For the reasons discussed below, we affirm the District Court's denial of Hamilton's petition for a writ of habeas corpus. 2

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I.

Hamilton's first contention is that key prosecution witnesses and evidence admitted at trial were discovered by the police as a result of their prior misconduct; thus, such evidence was "fruit of the poisonous tree" and was improperly admitted at trial. Specifically, Hamilton challenges the admission of (1) Maxine Hamilton's testimony regarding a telephone conversation during which Reed Hamilton confessed to the killings; (2) the trial testimony of Maxine Hamilton and Paul Lincoln regarding a suitcase containing ten pounds of marijuana; and (3) the marijuana itself.

On this appeal the State does not deny that police misconduct occurred. 3 The State's argument is that all the challenged testimony of Maxine Hamilton and Paul Lincoln was nonetheless admissible under the "independent source" exception to the exclusionary rule. We agree that the identity and testimony of Hamilton and Lincoln derived from lawful sources independent of the police misconduct, and, therefore, that the trial court did not err in admitting their testimony.

The trial below was the second in this case. Both Maxine Hamilton and Paul Lincoln refused to testify at the first trial, and, consequently, both were held in contempt of court and sentenced to short jail terms. Both were subpoenaed again to testify at the second trial, and this time both testified on behalf of the prosecution. Maxine Hamilton testified that Reed Hamilton had borrowed a handgun from her about one month before the killings. She testified that on the day of the killings Reed Hamilton carried a blue suitcase into her house and took it downstairs to leave in her basement, but that she never looked into the suitcase. She also testified about her telephone conversation with Reed Hamilton during which he admitted killing Pappas and Larson and asked her to remove the suitcase of marijuana from her house. Paul Lincoln testified that on the day of the killings Reed Hamilton carried a suitcase containing two large green bags into the basement of Maxine Hamilton's house. Lincoln later went to the basement, opened the suitcase, and saw "some kind of tobacco" with a "strange smell."

Under the "fruit of the poisonous tree" doctrine, the exclusionary rule bars the admission of physical evidence and live witness testimony obtained directly or indirectly through the exploitation of police illegality. See Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 415-18, 9 L.Ed.2d 441 (1963). The Supreme Court, however, has recognized three analytically distinct exceptions to this doctrine. The Court has suggested that the underlying focus of analysis is " 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Id. at 488, 83 S.Ct. at 417 (citation omitted). Thus, under the "independent source" doctrine, the challenged evidence will be admissible if the prosecution can show that it derived from a lawful source independent of the illegal conduct. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920). In such a case, there is no reason to exclude the challenged evidence since the police misconduct is not even a "but for" cause of its discovery. Second, challenged evidence will be admissible under the "attenuation" doctrine, even though it did not have an independent source, if the causal connection between the constitutional violation and the discovery

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of the evidence has become so attenuated as to dissipate the taint. United States v. Ceccolini, 435 U.S. at 273-80, 98 S.Ct. at 1058-62. Third, challenged evidence will be admissible under the "inevitable (or ultimate) discovery" doctrine if the prosecution can establish that it inevitably would have been discovered by lawful means without reference to the police misconduct. Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984).

Hamilton argues that Maxine Hamilton's and Paul Lincoln's testimony was not admissible under any of these three exceptions, and urges us to adopt the same reasoning used by the panel majority, which focused primarily on the "attenuation" analysis set forth in Ceccolini. We believe, however, that the panel majority read Ceccolini too broadly, and, consequently, that it erred in applying attenuation analysis in this case to exclude Maxine Hamilton's and Paul Lincoln's testimony.

In Ceccolini, a police officer, while taking a break in the defendant's business shop, noticed an envelope containing money lying on the cash register. Upon closer examination, he found that it also contained slips of paper indicating unlawful gambling activity. He then questioned one of the defendant's employees, who told him that the envelope belonged to the defendant. The officer forwarded this information to an FBI agent, who later interviewed the employee without referring to the incident involving the police officer. The defendant later testified falsely before a federal grand jury that he had never been involved in any way with gambling operations. His employee testified for the prosecution at his subsequent trial for perjury. The defendant sought to suppress his employee's testimony as "fruit of the poisonous tree." The trial court granted the motion, reasoning that the employee-witness "first came directly to the attention of the government as a result of an illegal search." 435 U.S. at 273, 98 S.Ct. at 1058. The court of appeals affirmed, but the Supreme Court reversed. In reversing, the Supreme Court set forth an analytical framework to evaluate the admissibility of live witness testimony under the attenuation doctrine. Id. at 274-79, 98 S.Ct. at 1059-61.

The Ceccolini attenuation analysis does not apply, however, absent an initial factual determination that the identity of the witness whose testimony is challenged was discovered as a result of the constitutional violation. See id. at 276 & n. 4, 277, 98 S.Ct. at 1060, & n. 4, 1060. Indeed, the identity of the witness in Ceccolini was discovered only because of the unlawful search by the police officer. Attenuation analysis is inappropriate, however, in a case, such as here, in which the police already are aware of the witness's identity and involvement. See United States v. Crews, 445 U.S. 463, 471-72, 100 S.Ct. 1244, 1249-50, 63 L.Ed.2d 537 (1980). Moreover, application of the Ceccolini analysis beyond its factual context, as was done by the panel majority, would eviscerate the independent source exception to the exclusionary rule.

The independent source doctrine was first recognized by the Supreme Court in Silverthorne Lumber. The Court there stated:

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used ... but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others....

251 U.S. at 392, 40 S.Ct. at 183. The rationale for the independent source doctrine was explained by the...

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