Cody v. Solem

Decision Date19 February 1985
Docket NumberNo. 84-1189,84-1189
Citation755 F.2d 1323
PartiesWilliam R. CODY, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; Mark Meierhenry, Attorney General, State of South Dakota, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

David R. Gienapp, Madison, S.D., for appellant.

Jon R. Erickson, Pierre, S.D., for appellees.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

William R. Cody, a South Dakota prisoner convicted of murder, appeals from the district court's 1 denial of his petition for habeas corpus. 28 U.S.C. Sec. 2254. He argues that the court erred in holding that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), bars all of his claims. On the merits of his petition, he contends that (1) fruits of a search of a Las Vegas hotel room should have been suppressed since his consent to that search was involuntary; (2) he was denied due process by the State's failure to produce certain items of allegedly exculpatory evidence; and (3) the State's use of a bystander juror selection process denied him a fair trial. We hold that Cody is not entitled to habeas relief and affirm.

I. BACKGROUND.

Edmund Brown was found murdered in his Winner, South Dakota home on the morning of February 10, 1978. Dr. Thomas Henry, a forensics pathologist, testified that Brown died as a result of numerous blows to the head and placed the time of death between 11:15 p.m. C.S.T., February 9, and 3:15 a.m. C.S.T., February 10, 1978. 2

On February 28, 1978 Cody was arrested in Las Vegas, Nevada on an interstate flight warrant arising out of outstanding embezzlement and larceny charges filed in Pennington County, South Dakota. On the same day Cody was arrested, he was charged with Brown's murder in Tripp County, South Dakota. He was incarcerated and initially interrogated by Las Vegas authorities. From about 5:00 p.m. to 9:30 p.m. on February 28, Cody was interrogated in Las Vegas by Marc Tobias, Assistant Attorney General for the State of South Dakota. 3 About a half hour into this interview, Cody refused to sign a consent to search his room at the Aladin Hotel in Las Vegas. Although Cody requested counsel several times during the interrogation, none was provided him until the later stages of the interrogation when he was allowed to telephone South Dakota attorney John Hughes for twenty to twenty-five minutes. 4 Hughes advised Cody to remain silent. Thereafter, Cody signed a consent to search his hotel room. Prior to giving this consent, he was apprised of his rights and the consent form was read to him several times. It was at this time that Cody was allegedly given the so-called "fugitive from justice" speech which will be referred to later in this opinion. Before consent was given, Cody indicated that narcotics might be in the room. After he was assured that no charges would be brought against him with respect to any drugs found in the room, Cody consented to the search.

A subsequent search of the room revealed incriminating evidence which was used against Cody at trial. The authorities found over $53,000.00 in cash hidden behind a metal Kleenex dispenser in the bathroom. The search also uncovered certain receipts from businesses and hotels in Omaha, Nebraska. This allowed the authorities to trace Cody's movements on the days after the murder and ultimately led to the discovery of clothing Cody left behind in Omaha.

Cody was tried by jury, convicted of murder, and sentenced to life imprisonment. The South Dakota Supreme Court reversed his conviction holding that Tobias had violated Cody's Miranda rights during the Las Vegas interrogations. State v. Cody, 293 N.W.2d 440, 446-49 (S.D.1980) (Cody I). The court ruled that all of Cody's incriminating statements should therefore have been suppressed. Nevertheless, the court also concluded that Cody's consent to search his hotel room was voluntary and refused to suppress the evidence found in the room. Id. at 451.

Cody was retried and again found guilty of premeditated murder and sentenced to life imprisonment. During the voir dire in the second trial, after the original panel of jurors was exhausted, the trial court directed the deputy sheriff and county coroner to summon bystanders as prospective jurors. One bystander eventually served on Cody's jury.

The state presented essentially the same evidence at both trials. It established that Cody knew Brown and that Cody and a mutual business acquaintance, Marshall Howard, were attempting to persuade Brown to invest money in a hypnotist show Cody and Howard were trying to put together. 5 Cody visited Brown twice in January of 1978, once on January 10 and once on January 27. Cody also spoke to Brown several times on the telephone in the days preceding the murder. There was evidence that Brown was expecting Cody to visit him on February 8 or 9, 1978.

By his own admission, Cody left Rapid City, South Dakota around 11:00 p.m. C.S.T., February 9, 1978, and traveled east on Interstate 90. Although Cody stated that he traveled straight to Sioux Falls, South Dakota, the State's position was that he stopped at Winner, murdered Brown, and robbed him of a great deal of money. 6

Cody surfaced in Omaha, Nebraska at approximately 5:00 p.m., February 10, 1978. He checked into the Hilton Hotel under his former name, William Weeks. He paid for the room in cash, and when he asked for a more expensive room than the one he was first shown, he stated that money was no object. Later that evening, he left the Hilton and checked into the Sheraton Hotel using his mother's maiden name, Storie. Maids later found articles of clothing and overshoes left abandoned in the Hilton Hotel room. Canine and Type O blood were found on the clothing. Some of the blood was in a spray pattern.

While in Omaha Cody purchased a wig and new clothing, leaving his old clothing at the clothing store. He paid for the purchases with one hundred dollar bills. He abandoned the pickup truck he had been driving and left Omaha on a chartered plane on the afternoon of February 11, 1978. He also used cash to pay for this flight and told the pilot that he was carrying a large sum of money.

Cody arrived in Las Vegas, Nevada later that evening. There he met a dancer named Angelique Pettyjohn, and for the next seventeen days he gambled, bought drugs, and purchased the services of prostitutes. He changed hotels frequently, registering under several different names, and bought Pettyjohn a Lincoln Continental automobile. Pettyjohn testified that Cody gave her over $6,000.00 in cash to trade in for different bills, or, in Cody's words, he gave her the money to "wash." After washing the money, she returned it to Cody. Later, Pettyjohn, unsure of what she had gotten herself into, contacted Las Vegas authorities and Cody was arrested on February 28, 1978. After Cody's arrest, Pettyjohn turned over to the police five envelopes Cody had given her. The envelopes contained over $40,000.00 in various denominations.

Brown's fingerprints were found on six of the bills given the police by Pettyjohn and were also found on the envelopes containing the money. Blood was found on both the money in the Las Vegas hotel room and the money given the police by Pettyjohn. Seriological testing showed the blood to be Type O. Brown had Type O blood while Cody had Type A.

Finally, the State presented evidence that Cody was financially desperate at the time of the murder. He was having difficulty raising money for his business ventures, his employees were unpaid, his telephones were about to be disconnected, he was months overdue on his rent, and he had to borrow money from Marshall Howard to pay for his girlfriend's abortion.

Cody's defense centered in part on his allegation that he could not have been in Winner at the time of the murder. 7 He stated that since he was seen in Kadoka, South Dakota about 12:00 a.m. C.S.T. on February 10, the earliest he could have been in Winner would have been 4:45 a.m. C.S.T., over an hour after the latest time Brown could have been killed. As for his possession of the money tied to the victim, Cody stated that this money had been given to him by "investors" in his show while he was in Sioux Falls on February 8, 1978, a Johnny Simon and an individual called "Pete." After receiving the funds, he traveled back to Rapid City where he met two black men in order to consummate a cocaine transaction. An altercation allegedly ensued and Cody stated that he beat up both men, took a large amount of cocaine, and fled the Rapid City area in fear for his life. He stated he traveled straight to Sioux Falls and then to Omaha where he sold the cocaine for $50,000.00 to an individual named Dan Neal. It was also at this time that the aforementioned "Pete" gave him another large sum of cash for investment purposes. He then proceeded to Las Vegas where he claimed he again met Johnny Simon at Caesar's Palace where further drug transactions were discussed.

After his second trial Cody filed a petition for habeas corpus in federal court on October 10, 1980. This petition was denied for failure to exhaust state remedies. The South Dakota Supreme Court then affirmed Cody's direct appeal. State v. Cody, 323 N.W.2d 863 (S.D.1982) (Cody II). The court again refused to suppress the fruits of the search of Cody's Las Vegas hotel room, rejected Cody's allegation that the State had destroyed or lost material evidence, and upheld the bystander jury selection process. Id. at 866-69.

Cody's second petition for habeas relief was also denied. 8 A third petition resulted in an evidentiary hearing which was held on October 11, 1983. The district court denied relief and this appeal followed.

II. DISCUSSION.

Stone v. Powell and the Consent to Search.

In ruling on the present petition, the district court sta...

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