Andersen v. Thieret

• Decision Date: 11 June 1990
• Docket Number: No. 89-1574,89-1574
• Citation: 903 F.2d 526
• Parties: Daniel ANDERSEN, Petitioner-Appellant, v. James THIERET, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 526

903 F.2d 526

Daniel ANDERSEN, Petitioner-Appellant, v. James THIERET, Warden, Respondent-Appellee.

No. 89-1574.

United States Court of Appeals, Seventh Circuit.

Argued April 3, 1990.

Decided June 5, 1990.

As Amended June 11, 1990.

Frank C. Lipuma, Mayer, Brown & Platt, Chicago, Ill., for petitioner-appellant.

Nathan P. Maddox, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., Springfield, Ill., for respondent-appellee.

Before WOOD, Jr., EASTERBROOK and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Daniel Andersen brings this habeas petition to challenge his incarceration at the Menard Correctional Center in Menard, Illinois. Andersen alleges that his confession to these crimes was not voluntary and that the state trial court violated his Miranda rights by admitting into evidence certain statements he made shortly after his arrest. The district court denied Andersen's petition and we affirm.

I. FACTUAL BACKGROUND

On the night of January 19, 1980, Cathy Trunko was stabbed in the chest three times near her home in Chicago, Illinois. Only her assailant witnessed the attack. A passerby found Cathy lying on the sidewalk, covered with blood. By the time she was found, medical assistance was no help, and Cathy eventually succumbed to her wounds. An Illinois state trial court convicted petitioner Andersen of attempted rape and murder in connection with this attack and sentenced him to concurrent thirty and fifty-five year sentences. On direct appeal, the Illinois Appellate Court affirmed Andersen's conviction, and that court's decision contains a full narrative of the crime and Andersen's arrest. See People v. Andersen, 134 Ill.App.3d 80, 82-94, 479 N.E.2d 1164, 1166-74, 89 Ill.Dec. 158, 160-68 (1985). A less-detailed version of the facts is necessary to an understanding of this case.

The voluntariness of the petitioner's confession predominates the issues in this appeal. After his arrest, Andersen told the following story to the police. At about 10:00 P.M. on January 19, 1980, he had been drinking and felt a need for sex. Andersen obtained a knife from a toolbox in the attic of his home, placed it in his boot, and walked outside. He saw Cathy Trunko, a woman he had known for twelve years. Not wishing to be caught for the crime he was contemplating, Andersen went to his car and got a pair of gloves.

Next, Andersen came alongside Cathy and struck up a conversation. When they passed her home, Cathy informed Andersen that she had to go inside for a moment to give her mother some cigarettes. She came back outside, and they resumed their walk. In front of a church, Andersen told Cathy to wait on the front steps while he went around back to urinate. When out of her sight, he took the knife from his boot and placed it on some stairs where he could reach it from the sidewalk. Andersen put on his gloves and returned to Cathy, walking with her toward the stairs.

When they got close enough to the stairs, Andersen bent down and picked up the knife. He put his arm around Cathy, kissed her, and said he wanted to make love. She refused. He forced her to the ground and fondled her. Cathy spit in his face. She tried to escape and started to scream. Andersen then thrust the knife into her chest, once in each breast and "once in the middle." As he fled, Cathy was crawling on the ground. Andersen then discarded his knife and gloves, but the knife was later recovered by the police in an area that Andersen agreed was the place he had thrown it.

This was the story that Andersen related five days later, on January 24, 1980, after his arrest for disorderly conduct. Petitioner's mother had asked her friend, Officer Riley, to bring the defendant home as he was drunk, had a weapon, and was driving his silver Ford Pinto. Riley passed this information along to another police officer who soon spotted the silver Pinto. This second officer stopped the car, but the defendant was not in it; a friend had agreed to drive it because Andersen was too drunk to drive. The officers and the friend then proceeded to the mother's house. They saw the defendant walking toward them. The police searched Andersen but found no weapon. One of the officers asked the defendant's mother if she wanted the defendant left with her or taken to the station. She said the defendant had been causing a disturbance so she signed a disorderly conduct complaint against him.

Nothing in the record suggests that at this point, the police suspected Andersen of the Trunko murder, but he soon provided them with a reason to do so. During the five-minute ride to the police station, there was some conversation about the weapon that the defendant's mother said he had, but the defendant denied he had one, saying he was just out drinking. After an interval of silence, Andersen then blurted, "I stabbed her"; the arresting officer asked, "Who?"; and Andersen responded, "Cathy." At the suppression hearing before the state trial court, the arresting officer testified that this exchange occurred before Andersen was read his Miranda rights, but at trial the same officer testified that the statement was made after Miranda warnings. Although the state trial court suppressed any statements made before Miranda warnings, this colloquy was allowed into evidence consistent with the testimony at trial and on the basis that it occurred after Miranda warnings.

After Andersen was read his Miranda warnings, he responded that he knew them and that he wished to waive them. The police then questioned him further about the stabbing, and this is when he gave the disputed confession to the police. What happened at the station house is a matter of conflicting evidence. Andersen contended that he was roughly handled and injured by the police, that he was misled by a "good officer" routine, and that his oral and written confessions were involuntary under all the circumstances. The degree of the petitioner's intoxication was also disputed. Some of the petitioner's witnesses said that he was drunk, that he had a chronic alcohol problem, and that he had smoked parts of two marijuana cigarettes. Finally, Andersen contended that his confession was merely a script story, concocted by him and the officer who had promised to be his friend.

The state trial court, based upon the credibility of the witnesses and considering the contradictions in the testimony of the defendant's witnesses, determined that the defendant's confession was voluntary. In oral findings reproduced as an appendix to this opinion, the trial court rejected Andersen's contention that intoxication rendered him susceptible to police suggestions that he confess. His speech was found not to be slurred; he walked normally, displayed no lack of coordination, had no hand tremors, no difficulty focusing his attention, and gave coherent answers. When the defendant reviewed a draft of his written confession, he had the presence to change the word "shooting" to "stabbing." Similarly, the trial court found that no physical coercion had occurred. In sum, the state trial court rejected Andersen's evidence.

Both parties consented to the entry of a final judgment on the habeas petition by a United States magistrate. Relying on the factual findings of the state trial court, the magistrate did not conduct an evidentiary hearing. The magistrate concluded that Andersen had not shown his confession was involuntary, rejected Andersen's Miranda claims, and denied the petition. Andersen now appeals that decision pursuant to 28 U.S.C. Secs. 636(c)(3), 1291.

II. DISCUSSION

A. Voluntariness of Confession

The threshold issue is the correct standard for reviewing the magistrate's decision on the voluntariness of Andersen's confession. As a habeas petitioner, Andersen is entitled to a federal district court's de novo review of the voluntariness issue under Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985), and we have interpreted Miller to require de novo appellate review of the district court's decision on voluntariness, see United States v. Hawkins, 823 F.2d 1020, 1022-23 & n. 1 (7th Cir.1987). This standard of review has recently come under attack, see, e.g., United States v. Rutledge, 900 F.2d 1127, 1128-29 (7th Cir.1990); Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.1989); Sotelo v. Indiana State Prison, 850 F.2d 1244, 1253-55 (7th Cir.1988) (concurring opinion), and even replaced by an abuse of discretion standard when we exercise discretionary jurisdiction under 28 U.S.C. Sec. 636(c)(5), see Wilson v. O'Leary, 895 F.2d 378, 383 (7th Cir.1990). Nevertheless, because an ultimate resolution is not necessary for our decision, we will follow the example of Sotelo and leave the question for another day. 850 F.2d at 1247 n. 4; see also Rutledge, 900 F.2d at 1129 (declining to decide question where litigants did not challenge the correct standard of review). Therefore, we will review the magistrate's decision on voluntariness de novo.

Before considering the substance of Andersen's petition, we must pause because the state trial court's choice of words complicates our decision. Where the state trial judge orally stated that he believed none of Andersen's statements "were obtained as a result of" possible police misconduct, he could have been clearer. A rhetorician might quibble with this language; saying that something is not "the result of" a sequence of events is not literally the same as saying the sequence of events did not occur. Cf. Weidner, 866 F.2d at 960, 964 (granting evidentiary hearing to habeas petitioner to clarify state trial court's findings that no threats or coercion had "induced" the confession). But a state trial court's findings on voluntariness need not be talismanic, especially where the findings are rendered orally. In this case, the state trial judge carefully surveyed the evidence that had been presented, considered the credibility of the witnesses, and then rendered his...