Connors v. State of South Dakota

• Decision Date: 08 June 1970
• Docket Number: No. 19785.,19785.
• Citation: 422 F.2d 122
• Parties: Application of Timothy CONNORS, for a Writ of Habeas Corpus, Appellee, v. STATE OF SOUTH DAKOTA and Don R. Erickson, Warden, etc., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

422 F.2d 122 (1970)

Application of Timothy CONNORS, for a Writ of Habeas Corpus, Appellee, v. STATE OF SOUTH DAKOTA and Don R. Erickson, Warden, etc., Appellants.

No. 19785.

United States Court of Appeals, Eighth Circuit.

February 19, 1970.

Certiorari Denied June 8, 1970.

R. James Zieser, Asst. Atty. Gen. of South Dakota, Pierre, S.D., for appellants, Gordon Mydland, Atty. Gen., on the brief.

Timothy J. Nimick, of Woods, Fuller, Shultz & Smith, Sioux Falls, S.D., for appellee.

Before MATTHES, GIBSON and LAY, Circuit Judges.

Certiorari Denied June 8, 1970. See 90 S.Ct. 1881.

MATTHES, Circuit Judge.

Appellants have appealed from the order of the United States District Court for the District of South Dakota granting appellee's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Appellee is serving a ten year sentence in the South Dakota State Penitentiary for the robbery of a food market in Sioux Falls, South Dakota, on July 13, 1961. Appellee's release from prison was stayed pending this appeal.

The following facts are instructive in understanding the issues raised. Sixteen days after the robbery in Sioux Falls appellee and one Richard E. Williams were arrested while attempting to rob a food market in Minneapolis, Minnesota. Both men were interrogated by authorities of the Minneapolis police department concerning their connection with a number of robberies in Minnesota. Williams confessed to several of these crimes and also implicated himself in the Sioux Falls robbery. Appellee refused to give a confession; however, he did make statements which tended to link him with the Minnesota robberies.¹ On the basis of the information uncovered by their investigation, the Minneapolis authorities notified the Sioux Falls police department.

Sometime in early August of 1961 Lieutenant Harry Knott of the Sioux Falls police department traveled to Minneapolis and there interrogated both Williams and appellee. Williams confessed to the Sioux Falls crime, and appellee made statements to Knott during the course of the questioning which connected him to the same offense.

Appellee was convicted of attempted robbery in Minnesota and served the sentence imposed. On May 21, 1965, he was returned to South Dakota to stand trial for the Sioux Falls robbery. The trial commenced on September 28, 1965, and was concluded on September 30, 1965, with appellee's conviction. At this trial Lieutenant Knott testified to the statements made by appellee to him during the Minneapolis interrogation of 1961.² Knott further testified that prior to receiving the statements he attempted to advise appellee of his constitutional rights. However, after warning appellee that he need not make a statement, he was interrupted by appellee who stated that he already knew his rights. An appeal was taken to the South Dakota Supreme Court. Although the issue had not been raised at trial, that Court held that the incriminating statements were not obtained by Knott in violation of appellee's constitutional rights, as set forth in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 2d 977 (1964). State v. Connors, 82 S.D. 489, 149 N.W.2d 65 (1967).

After failing on direct appeal, appellee sought post-conviction relief in the Circuit Court for Minnehaha County, South Dakota, pursuant to 8 S.D.Laws Ann. ch. 23-52 (1967). As grounds for relief he again urged that the statements made to Knott were obtained in violation of his Sixth Amendment right to counsel. The circuit court, relying upon the South Dakota Supreme Court's disposition of the identical issue, denied appellee relief.

The present action was instituted in the United States District Court for the District of South Dakota pursuant to 28 U.S.C. § 2254. Hearings were held and evidence taken on the 13th and 30th of December, 1968. Appellee appeared on the 13th and testified that at no time in his interrogation by either the Minneapolis authorities or Lieutenant Knott had he been advised of his constitutional rights. He denied that he had ever requested counsel and further denied that he had told Lieutenant Knott that he knew his rights. On December 30, the state produced as a witness Captain Egeland, the officer who had interrogated appellee in August of 1961 on behalf of the Minneapolis police department. Captain Egeland had not appeared in any of the proceedings in the state courts. On direct examination, he testified that he had advised appellee of his right to remain silent and to have an attorney. On cross-examination Captain Egeland admitted that appellee had requested an attorney, and had stated that he would make no statement until he had conferred with one.³ Egeland further admitted that appellee had never consulted with an attorney, nor had the Minneapolis authorities provided him with one. In response to a question from the bench, Egeland testified that appellee made no incriminating statements during his interrogation with respect to the Sioux Falls robbery.

On April 2, 1969, Judge Nichol filed his findings of fact and conclusions of law, 297 F.Supp. 969. After finding that appellee had exhausted his state remedies and was properly before the federal court, he held that appellee was denied due process of law in violation of his constitutional rights as a result of the state's failure to provide counsel during the interrogatory process upon appellee's request and the further failure to advise appellee of his right to remain silent after his request for counsel.

In support of its appeal the State of South Dakota urges two grounds of error: (1) that appellee has failed to exhaust his state remedies; (2) that appellee's constitutional rights were not infringed by the interrogations of Captain Egeland and Lieutenant Knott. We consider the issues seriatim.

Whether appellee has exhausted his state remedies as required by 28 U.S.C. § 2254(b), must be resolved in light of the issues which were raised before the federal district court. It is well established that the exhaustion doctrine of 28 U.S.C. § 2254(b) is generally satisfied where the legal issues raised in the federal habeas corpus petition have been presented to and resolved by the highest state court. E. g., Smith v. Peyton, 408 F.2d 1009 (4th Cir. 1968); Thompson v. Peyton, 406 F.2d 473 (4th Cir. 1968); Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968). The crux of appellee's contention in the district court was that statements he made during police interrogation in Minneapolis were obtained in violation of his constitutional rights as defined in Escobedo v. Illinois, supra. As noted previously, the South Dakota Supreme Court considered and rejected precisely the same issue. State v. Connors, supra. There after appellee availed himself of the South Dakota postconviction remedies, again urging violation of rights protected by the Escobedo decision. Relief was denied on the basis of the state supreme court's earlier determination. Under these circumstances we believe that appellee has exhausted his state court remedies and the district court properly heard his request for a writ of habeas corpus.

We turn then to the substantial question raised herein — whether state officials violated appellee's Sixth Amendment right to counsel in obtaining incriminating statements during a custodial interrogation of appellee. At the outset we notice what this appeal does not involve. First, it does not involve a confession which is challenged as involuntary. It was conceded by appellee's counsel, both before this court and the district court, that the voluntariness of the statements made by appellee to Knott was not in issue. Indeed, in view of the circumstances of this case appellee could hardly take a different position. Appellee was mature and of normal intelligence. There is evidence that shortly before the interrogation he was advised of his right to remain silent and to counsel, and at the interrogation by Lieutenant Knott he stated that he knew his rights. The interrogation itself was of short duration (approximately 30 minutes) and conducted under reasonable conditions. Appellee admitted that there was no effort made to coerce him, either physically or mentally, into making the statements which were elicited. And the interrogating officer employed no falsehoods in inducing the statements. Certainly, under the presently applicable standard, appellee's statements were voluntary. See e. g., Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

Second, we are not here required to judge the constitutionality of the statements by the standards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The incriminating statements were obtained in 1961, but the trial at which they were admitted into evidence transpired in late September of 1965. Under these circumstances we apply Escobedo v. Illinois, supra, in evaluating the constitutionality of the police practices employed in obtaining appellee's statements. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Acknowledgment of Escobedo's authoritative weight and application of its teachings are two different matters, as illustrated by the diversity of readings the decision has incurred.⁴ In reaching its decision the federal district court relied on United States ex rel. Russo v. New Jersey, cited in the margin. Beyond doubt this case construed Escobedo with great liberality. Apart from its dubious precedential value,⁵ we believe that it does not accurately state this Circuit's interpretation of the Escobedo requirements. See, Cox v. United States, 373 F.2d 500 (8th Cir. 1967); Golliher v. United States, 362 F. 594 (8th Cir. 1966); Hayes v. United States, 347 F.2d 668 (8th Cir. 1965). In all of these cases we were careful to recognize the particular facts in Escobedo and the limiting language of the court's holding⁶ which was reaffirmed in ...