Towne v. Dugger, 88-3938

• Decision Date: 30 April 1990
• Docket Number: No. 88-3938,88-3938
• Citation: 899 F.2d 1104
• Parties: Jack Stanley TOWNE, Petitioner-Appellant, v. Leonard DUGGER, Bob Butterworth, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1104

899 F.2d 1104

58 USLW 2706

Jack Stanley TOWNE, Petitioner-Appellant, v. Leonard DUGGER, Bob Butterworth, Respondents-Appellees.

No. 88-3938.

United States Court of Appeals Eleventh Circuit.

April 30, 1990.

Stuart C. Markman, Tampa, Fla., for petitioner-appellant.

Kurt L. Barch, Asst. Atty. Gen., Dept. of Legal Affairs, Laura Rush, Tallahassee, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and CLARK, Circuit Judges, and ATKINS ^*, Senior District Judge.

CLARK, Circuit Judge:

Petitioner Jack Towne was arrested at 1:00 a.m. on December 4, 1984 for loitering and prowling at an apartment complex near his home. The arresting officer, Officer Manning, questioned Towne at the police station about several rapes and burglaries that had recently occurred in the same area. When Towne made some incriminating statements, Officer Manning requested a detective to come to the station to talk to Towne. From approximately 2 a.m. until 5 a.m. Towne talked with Detective Kramig and Officer Manning and made the taped confessions that are the subject of this appeal.

Towne moved to suppress the taped confessions on the grounds that they were the fruit of an unlawful arrest, that they were coerced by promises of leniency and psychiatric treatment, and that they were obtained in violation of his privilege against self-incrimination. After a full evidentiary hearing, the trial court issued a one-page order denying the motion to suppress. The order announced no specific findings of fact, but found that the arrest was lawful and that the confessions were freely, knowingly, and voluntarily given. (Exh. F)

Towne subsequently entered pleas of nolo contendere to four separate charges of battery, sexual battery, armed robbery, and armed burglary, but reserved his right to appeal the denial of his motion to suppress. Towne was sentenced to twenty-two years imprisonment and is currently incarcerated. In his direct appeal, Towne argued that the trial court had erred in finding that the arrest was lawful and that his confession was voluntarily given. The state appellate court affirmed the trial court, and summarized the evidence presented at the suppression hearing pertinent to the voluntariness of Towne's confession as follows:

[Towne] was given the Miranda rights, both at the car at the time of the arrest, and again at the police station. [Towne] maintains that he asked to see a lawyer, and the arresting officer told him he could have an attorney but if he elected to go that route the officer would "throw the book at him." According to [Towne], the officer then told him he recognized that [Towne] had psychological problems. [Towne] said the officer told him he was a "new school" officer, that he was interested in helping [Towne] with his problems, that he would help [Towne] obtain release on his own recognizance, and that he would help [Towne] obtain probation. In addition, [Towne] maintains the detectives and the arresting officer told him that tape recording his statements would not only assist in a court proceeding, but could be used by a psychiatrist to determine the nature of his stress. [Towne] contends he trusted the officers and relied upon their representations.

[T]he officers' version of the events surrounding the circumstances of [Towne's] incriminating statements differs from that of [Towne]. The officers note [Towne] was given his Miranda warnings not once, but several times, and he indicated he understood the rights available to him. The officers contend [Towne] did not request an attorney, and though the officers acknowledge the arresting officer promised to do everything he could to help, the discussions concerning offers of psychiatric help and promises to do everything possible to help him occurred in the context of the "entire realm of possibilities" attendant upon disposition of the case. According to the officers, these discussions occurred after [Towne] had made incriminating statements. The officers testified that no promises were given, and note that [Towne] read and signed a form waiving his right to consult an attorney.

The psychiatrist appointed by the court to evaluate [Towne's] psychological status testified that at the time [Towne] talked with the investigators, he was primarily motivated by his desire to get help. The psychiatrist testified further that [Towne] was peculiarly susceptible to suggestions that psychological counseling could be made available to him. In the psychiatrist's opinion, [Towne] would not have confessed if he had not been promised psychological help.

Towne v. State, 495 So.2d 895, 897 (Fla.Dist.Ct.App.1986), review denied, 504 So.2d 768 (Fla.1987).

The state appellate court found that there was sufficient evidence on the record to support the trial court's implicit finding that any promises of psychiatric or other help were made after Towne confessed. Id. at 899. The appellate court also found that although it was clear that Towne had asked Officer Manning if he thought Towne needed a lawyer, he had not at any time explicitly stated that he wanted to have a lawyer. Therefore, the court held, the evidence supported the trial court's implicit finding that Towne had not requested a lawyer, and the trial court correctly ruled that his confession was not obtained in violation of the Fifth Amendment. Id.

Towne filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in federal district court on May 24, 1988. The petition raises three grounds for relief: 1) that his conviction was obtained by use of a coerced confession, 2) that his conviction was obtained by evidence acquired pursuant to an unlawful arrest, and 3) that his conviction was obtained in violation of the privilege against self-incrimination. The district court denied relief on all three grounds, holding that 1) there was clear support in the record for the state court's finding that Towne's confession was not coerced and was freely and voluntarily given, 2) that Stone v. Powell [428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) ] precluded federal review of Towne's Fourth Amendment claim that his confession was the fruit of an illegal arrest, and 3) that his question to Officer Manning as to whether he should get a lawyer was not an equivocal request for an attorney, and thus the subsequent questioning of Towne was permissible under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

We are bound under 28 U.S.C. Sec. 2254(d) to afford factual findings of state appellate courts a presumption of correctness. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Lindsey v. Smith, 820 F.2d 1137 (11th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989) (State appellate court's factual determination from reviewing record of second trial that defendant had adequate substitutes for transcripts from first trial entitled to presumption of correctness in federal habeas corpus proceedings.) Findings of fact implicit in a state appellate court's decision are equally entitled to a presumption of correctness under section 2254(d). See Williams v. Johnson, 845 F.2d 906 (11th Cir.1988); Sumner v. Mata, 449 U.S. at 539, 101 S.Ct. at 764, 66 L.Ed.2d at 722. Nevertheless, although the state court's findings of fact regarding when promises were made, or what the petitioner said about wanting an attorney are entitled to a presumption of correctness, this Court must make its own determination of the voluntariness of the confessions after an independent review of the record. Williams, 845 F.2d at 909; Agee v. White, 809 F.2d 1487, 1494 (11th Cir.1987) (State court determination as to whether a certain statement was made is entitled to a presumption of correctness under section 2254(d), but issue of whether statement implied a promise of immunity is subject to independent federal court determination.). Nothing in the record persuades us that the state appellate court's findings that promises were made to Towne only after he confessed and that he did not ask for an attorney explicitly, but did ask whether Officer Manning thought he should have an attorney, are not entitled to be presumed correct. Nevertheless, we must make an independent determination of whether Towne's confessions were obtained in violation of his constitutional rights.

Towne filed a pro se appeal in this Court, contending that the district court had erred in all three of its rulings. ¹ Finding no errors in the district court's analysis of the first two issues, we adopt and affirm the portions of the district court's order in which it concludes that there was sufficient evidence presented at the state court suppression hearing to support the state court's conclusion that Towne's taped confessions were not coerced by promises of psychiatric or other help, and that Towne's Fourth Amendment claim that the confession was inadmissible because it was obtained after an illegal arrest is precluded under Cardwell v. Taylor, 461 U.S. 571, 103 S.Ct. 2015, 76 L.Ed.2d 333 (1983) (Extending rationale of Stone v. Powell to include custodial statements made after an illegal arrest). Dist.Ct. Manuscript Order, p. 6-10.

We cannot agree, however, with the district court's conclusion that Towne's Fifth Amendment rights were not violated in this case. The Fifth Amendment requires that when a person requests an attorney during a custodial interrogation, all questioning must stop until an attorney is present, unless the defendant subsequently initiates conversation with the authorities. Edwards v. Arizona, 451 U.S. at 477, 101 S.Ct. at 1880, 68 L.Ed.2d at 378. This is a "rigid prophylactic rule", Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984), and courts are required "to give a broad, rather than a narrow interpretation to a defendant's request for counsel." Michigan v. Jackson, 475...