Evans v. Swenson

• Decision Date: 24 August 1971
• Docket Number: No. 71 C 315(3).,71 C 315(3).
• Citation: 332 F. Supp. 360
• Parties: R. D. EVANS, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

332 F. Supp. 360

R. D. EVANS, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

No. 71 C 315(3).

United States District Court, E. D. Missouri, E. D.

August 24, 1971.

R. D. Evans, pro se.

John C. Danforth, Atty. Gen., State of Mo., Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

WEBSTER, District Judge.

This matter is before the court on petition of R. D. Evans for writ of habeas corpus pursuant to 28 U.S.C. 2254. The petition was filed in the Western District of Missouri, Western Division on May 19, 1971. Leave was granted to proceed in forma pauperis and the cause transferred to this court by order filed May 19, 1971. This court entered show cause order on June 15, 1971. A response was filed on July 19, 1971. Petitioner filed a Traverse Of Response To Order To Show Cause and moved for appointment of counsel on July 20, 1971.

Petitioner is presently serving a life sentence in the Missouri State Penitentiary at Jefferson City, Missouri after a jury in the Circuit Court of the City of St. Louis found him guilty of first degree murder. Sentence was imposed on January 20, 1967. The Missouri Supreme Court affirmed the conviction on direct appeal (State v. Evans, 439 S.W. 2d 170 (1969)). Petitioner thereupon filed a motion to vacate sentence with the Circuit Court of the City of St. Louis pursuant to Supreme Court Rule 27.26, V.A.M.R. That court denied the motion on November 20, 1969. Petitioner appealed this decision and it was affirmed by the Missouri Supreme Court on April 12, 1971 (Evans v. State, 465 S.W.2d 500 (Mo., 1971)).

Petitioner's sole contention on appeal from the conviction was that the trial court had erroneously admitted into evidence his confession which he contends was obtained in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This same allegation formed the basis of petitioner's motion to vacate sentence pursuant to Rule 27.26 and his appeal from denial of that motion. In this proceeding, petitioner states:

"(a) The conviction and sentence under which petitioner is being held was imposed in violation of the Sixth Amendment and the Due Process clause of the Fourteenth Amendment to the United States Constitution, in that petitioner was deprived of his right to counsel during in-custody interrogation.

(b) The conviction and sentence under which petitioner is being held was imposed in violation of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment, in that petitioner was compelled to be a witness against himself by the admission into evidence at his trial of involuntary statements made by him while in custody."

Respondent concedes and this court finds that with regard to these allegations petitioner has exhausted all remedies available to him in Missouri courts as required by 28 U.S.C. 2254(b).

Petitioner moved to St. Louis, Missouri from Staubier, Mississippi in February, 1964. In that same month he met one Ernestine Bowers, a single woman who was then the mother of one child. On November 26, 1964 Miss Bowers gave birth to a second child she named Janet Denise Bowers. At the trial all testimony indicated that petitioner was the father. Sometime in January, 1965, petitioner and Ernestine Bowers moved into the home of Charles and Acymai Morgan, a four-room cottage located at the rear of 2820 Montgomery. In May or June of 1965 the couple moved with the two children into a house at the front of 2820 Montgomery and lived together there until April, 1966, when Ernestine Bowers moved with her children back into the Morgan's home. At trial, she testified that petitioner beat her and refused to give her money to buy food for the two children and that this was what caused her to leave him.

On Saturday evening, May 14, 1966, a group of about nine persons gathered at the Morgan house. Both petitioner and Miss Bowers had been invited and were present. In the early evening, petitioner spoke to Miss Bowers about returning to him. Later an argument developed between him and Acymai Morgan over petitioner's relationship with Miss Bowers, and petitioner was asked to leave the house about midnight. The last of the other guests did not leave the premises until 3:45 A. M. Sunday morning. At approximately 4:15 A. M. the Morgan house caught on fire and was virtually destroyed. Janet Denise Bowers burned to death. The State's evidence tended to show that a can of gasoline had been thrown into the house through an open window and ignited.

Patrolman Dale F. Meyers of the St. Louis Metropolitan Police Department was dispatched to the scene of the fire. While the officer was giving aid to injured persons, Charles Morgan told him that petitioner had started the fire and gave the officer petitioner's description. Shortly thereafter, Meyers was seated in his patrol car at the corner of Montgomery and Leffingwell Streets diverting traffic. He saw petitioner emerge from a taxicab and approach the patrol car. The officer asked petitioner to identify himself and then took him to the scene of the fire. When they reached the scene, Officer Meyers accompanied petitioner to another patrol car where petitioner identified the body of the burned infant. Meyers and a Patrolman Robert Bommarito then took petitioner and the child's body to Homer G. Phillips Hospital, where she was pronounced dead. Meyers testified that he asked no questions of petitioner while they drove to the hospital. After the girl had been pronounced dead, Officer Bommarito drove the body to the City Morgue while Meyers waited with petitioner in the Emergency Room of the hospital for another car to pick them up.

At trial, Officer Meyers testified as to subsequent events as follows:

"Q Well, Officer, what did you next do?

A I stayed with Mr. Evans in the emergency room at the hospital.

Q Did you speak with him there?

A Yes, sir, I did.

Q And what, if anything, did he say to you?

A Well, he was crying and I had him by the arm and I said, I asked the gentleman where he had been and he said he had just come back from East St. Louis and I didn't speak much more with him, he kept on crying, and I said to the man, I said, you know, Mr. Morgan told me that you were the one that set fire to the house, and at first he said, no, that's not true, and I said, I'm just telling you what Mr. Morgan has said, and at that time he started crying again, and I got up to get a drink of water and he was still crying, and he said, when did Mr. Morgan tell you that, and I said, right after the fire; he said he had seen you throw the fire bomb inside, and he stated, rather, he started crying again, and he said, well, Officer, I got something to say to you —

MR. GRAY: Your Honor, may we approach the bench?

THE COURT: Yes, of course.

(The following proceedings took place at the bench, out of the hearing of the jury, between counsel and the Court:)

MR. GRAY: Now, Your Honor, at this time the witness is going to testify that Mr. Evans said he set the house on fire and I want to object to it at this time because—for the reason that at this time Mr. Evans had not been apprised of his rights and he was not arrested—he didn't say he advised him.

THE COURT: What rights need he been apprised of, Mr. Gray?

MR. GRAY: At this point he is merely talking to him at the City Hospital and I think that the officer—he is a law school student—and he will testify that he gave him certain admissions and I think he told him what happened and I don't think he advised him of anything prior to this.

THE COURT: Well, I'll sustain the objection with leave to lay a further foundation.

(At this point, the trial was resumed within the hearing of the jury, as follows:)

Q (By Mr. Lane) Now, Officer, this conversation with R. D. Evans took place in the emergency room at the City Hospital No. 2?

A I wouldn't say the emergency room, exactly, this is a waiting area for people and that's where it was.

Q At that time, were you waiting to go back over to the District station?

A Yes, sir; I called my Sergeant and told him that I had no way of getting back to the station.

Q Then, you stated this man, R. D. Evans, went to get a drink of water—

A No, sir, I did; Mr. Evans stayed there—I went to get the drink of water.

Q And then, when he came back, did he speak to you?

A You mean when I came back—is that what you mean, when I came back from getting a drink of water?

Q Yes.

A Well, yes, sir; he was crying and he asked me a question, he said—I can't remember the exact words—but something like when did I, or Charlie tell you that I threw the fire bomb in the house and I said, he told me at the scene, at the fire, and he just started crying again, and he just sat there for about five minutes, or ten, crying, and then he looked up and he said, Officer, I would like to tell you something.

Q And at this time, what, if anything, did you say to him?

A Well, I said, well, I want to tell you something before you say anything at all to me. I said, I want to tell you about the rights you have as a citizen of the United States, and he just looked at me and I said, you realize you don't have to say anything and you don't have to make any statement, and, now, any statement you do make could be used against you, and I said, do you understand it, and he nodded, and I said that, you know you have a right to make a phone call and you also have a right to an attorney and he said, I know that. I said, if you don't have an attorney or can't afford one, I'll get one for you. I said, now, do you understand all of this and he said, yes, he did understand that, and he got a little bit short, and he said, I'm not stupid, and I said, I'm not insulting your intelligence; I just want you to understand you have certain rights and to see that they're protected, and he said, I understand that very well, and I said, all right, what do you want to...