Coney v. Wyrick

• Decision Date: 26 March 1976
• Docket Number: No. 75-1389,75-1389
• Citation: 532 F.2d 94
• Parties: Ellis CONEY, Jr., Appellant, v. Donald WYRICK, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 94

532 F.2d 94

Ellis CONEY, Jr., Appellant, v. Donald WYRICK, Appellee.

No. 75-1389.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1975.

Decided March 8, 1976.

As Amended March 26, 1976.

Thomas E. Douglass, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for appellant.

William F. Arnet, Asst. Atty. Gen., Jefferson City, Mo., for appellee; John C. Danforth, Atty. Gen., Jefferson City, Mo., on the brief.

Before HEANEY, ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

In this proceeding Ellis Coney, Jr. attacks his 1962 convictions for murder, robbery and rape in the state courts of Missouri, as a consequence of which he is currently serving three consecutive life terms. The federal district court denied relief under 28 U.S.C. § 2254. We reverse in part and remand because of involuntary guilty pleas to the charges of robbery and rape.

On the evening of December 5, 1962, Mrs. Betty Foster was found lying unconscious in a parking lot across from her place of employment in St. Louis. Medical examination disclosed that she had received a severe blow to the head and that she had been raped. She remained in a coma until her death on December 16, 1962. Shortly after Mrs. Foster was found the investigation focused on the residents of a house across the alley from the parking lot where the Coneys and another family lived.

At about 5 p. m. on December 7, 1962, two plainclothes detectives from the St. Louis police department went to Coney's home and told his mother that they wished to question and to administer a lie detector test to her 16 year old son, Ellis. Mrs. Coney gave them written permission to conduct the polygraph examination, and the accused was taken to the police station. At the time of his arrest Coney was of subnormal intelligence and illiterate, ¹ and had been referred to juvenile court at least seven times between 1960 and his 1962 arrest.

The polygraph examination began about an hour after the arrest. Initially the accused denied any knowledge of the assault on Mrs. Foster, but in the opinion of the examiner, the machine indicated he was lying. While he was in the polygraph examining room, a detective entered with a pair of tweezers that had been found in Coney's pocket and asked where they came from. Shortly thereafter he admitted striking Mrs. Foster and taking the tweezers from her purse. This admission occurred around seven o'clock, about two hours after Coney was arrested at his home. He was then questioned by two officers for approximately 30 minutes, and he told them that he and another boy had assaulted and robbed the victim.

During this period of time one of the policemen asked Coney if he was hungry and Coney said he was. The officer left and returned with a sandwich and a soft drink. Coney was taken to another room with a television set in it, where he ate and watched the Red Skelton show. About eight o'clock, after he had eaten, Coney was interviewed by Mr. Koster, a prosecutor from the Circuit Attorney's office, who advised him of his right to remain silent and that anything he said could be used against him in court. Coney indicated he understood these warnings. Koster also explained that his job was to prosecute cases. Coney indicated he wished to make a statement and repeated his confession to the prosecutor.

Sometime between 8 and 9 p. m. several police officers and Koster took Coney to his home, stopping en route to pick up a police officer attached to the juvenile division. Mrs. Coney gave her permission for the police to search the house. In his mother's presence Coney showed the officers where he had hidden jewelry he had taken from Mrs. Foster's body, and also a butcher knife and a baseball bat used in the offense. While at the Coney home, Koster spoke with Mrs. Coney and explained her son's position. After no more than an hour at the home, the officers, Koster and the accused returned to the station. The prosecutor interviewed Coney for about another half hour, then they waited for a stenotypist to arrive.

An officer of the juvenile court spoke to Coney shortly after he had been brought back to police headquarters. The youth indicated he had not been mistreated in any way and he appeared to be in good physical condition. The juvenile court officer and the police officers decided to keep Coney at police headquarters for the night rather than at juvenile detention facilities.

Around 10 or 11 in the evening Koster began taking a formal confession from Coney which was recorded by the stenotypist. At the outset the accused was again advised of his right to remain silent and that anything he said could be used against him in court. Coney indicated he understood his rights and that no threats or promises had been made to him.

Coney stated that he and another boy had planned to rob and rape Mrs. Foster, whom Coney had previously seen parking her car near his house. Coney had punctured her tire with a butcher knife while she was at work. After she discovered the flat tire she got out of the car and bent over to look at it; Coney came up behind her and hit her over the head with a baseball bat. The two boys took two dollars and other items from Mrs. Foster's purse and dragged her body across the alley into Coney's yard. After they had each raped her and Coney had taken a ring and necklace, they dragged her back to the parking lot.

After the statement was completed, sometime around 11:30, the confession was transcribed, and no further interrogation was conducted. The reporter completed the transcription about one or two in the morning. Koster knew Coney couldn't read or write, so he read each question to Coney and let him answer again to see that the written confession was correct. In some instances Koster read both the question and answer and Coney verified that they were correct. Corrections were initialed by the accused and he signed each page. The police officers initialed each page and signed the last page as witnesses.

Coney was kept at police headquarters on December 8 and 9; however, he was not questioned further about the assault and robbery of Mrs. Foster. He was taken before the juvenile court on December 12, where he was represented by counsel retained by his mother. The juvenile court determined he should be tried as an adult.

Coney was tried on the murder charge before a jury, in a trial lasting four days. The defendant pleaded insanity but was found guilty, and the jury assessed a punishment of life imprisonment on May 9, 1963. Judgment was entered accordingly.

On June 17, 1963, Coney withdrew not guilty pleas previously entered to the rape and robbery charges and pleaded guilty to those charges. He was sentenced to life imprisonment on each charge, the sentences to run consecutively, and both to run consecutive to the life sentence awarded after his murder trial. No motion for a new trial was filed on the murder charge, and no appeal was taken on any of the charges.

In 1968, Coney filed a collateral attack on these convictions in the Missouri courts. In 1969 a hearing was held in the Circuit Court of the City of St. Louis, and in 1970 the motion was denied. On appeal the Missouri Supreme Court remanded for a further hearing and findings on the voluntariness of Coney's confessions made on the day of his arrest. A further evidentiary hearing in accordance with the supreme court mandate was held in 1971, and in 1973 the circuit court again denied the motion. ² This denial was appealed to the Missouri Supreme Court, which affirmed in Coney v. State, 491 S.W.2d 501 (Mo.1973). Habeas corpus relief was then sought in federal district court, which was denied without an evidentiary hearing.

In this court Coney contends 1) that his confessions were involuntary, 2) he was denied effective assistance of counsel, and 3) his pleas of guilty to the rape and robbery charges were involuntary.

I. Voluntariness vel non of the confessions.

In this pre-Miranda case the admissibility of Coney's oral December 7 confessions and his formal written confession signed the morning of the 8th depends on whether, under the "totality of the circumstances," the confession was voluntary. Gallegos v. Colorado, 370 U.S. 49, 55, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325, 329 (1962); Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948, 954 (1961). A confession is not voluntary if "the defendant's will was overborne at the time he confessed." Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922, 926 (1963); Reck v. Pate, supra, 367 U.S. at 440, 81 S.Ct. at 1546, 6 L.Ed.2d at 953. In making our determination in this case we must give careful consideration to the effect of Coney's youth and subnormal intelligence on the voluntariness of his confession. Gallegos v. Colorado, supra, 370 U.S. at 52-53, 82 S.Ct. at 1211-1212, 8 L.Ed.2d at 327-328; Reck v. Pate, supra, 367 U.S. at 442, 81 S.Ct. at 1547, 6 L.Ed.2d at 954; Culombe v. Connecticut, 367 U.S. 568, 625, 639, 81 S.Ct. 1860, 1891, 1898, 6 L.Ed.2d 1037, 1070, 1078 (1961); Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 303-304, 92 L.Ed. 224, 228 (1948). But even according those factors their proper weight we conclude that Coney's confessions were the product of his own free will and therefore they were admissible.

The police procedures used in questioning the accused were fair and humane. The periods of questioning were brief and during reasonable hours, ³ and petitioner was allowed to eat regular meals, rest and watch television. Therefore this case differs from Haley v. Ohio, supra, in which a 15 year old boy was questioned by relays of police from midnight until 5 a. m., at which time he confessed. In Gallegos v. Colorado, supra, a 14 year old was held incommunicado for five days and the police refused his mother's request to see him. Here, Coney's mother gave her permission for the polygraph examination, and between three and four hours later he was brought back...