Glenn v. State of Missouri
| Decision Date | 21 March 1972 |
| Docket Number | No. 71 C 404(1).,71 C 404(1). |
| Citation | 341 F. Supp. 1055 |
| Parties | Eddie GLENN, Petitioner, v. STATE OF MISSOURI, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Eddie Glenn, pro se.
John C. Danforth, Atty. Gen., State of Missouri, Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
Petitioner presently confined in the Missouri State Penitentiary, has filed an amended petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. An order to show cause issued and a response thereto has been filed.
On July 23, 1965, petitioner was found guilty by a jury in the Circuit Court of the City of St. Louis, Missouri, of murder in the first degree, and on November 26, 1965, was sentenced to death. His conviction was affirmed on direct appeal to the Missouri Supreme Court on May 13, 1968, and a rehearing was denied on June 10, 1968. State v. Glenn, 429 S.W.2d 225 (Mo.1968). Petitioner filed an application for a special order permanently setting aside the imposition of the sentence of death, which was overruled by the Missouri Supreme Court on July 8, 1968. Petitioner further states that he filed a motion to vacate sentence, pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R., in the Circuit Court of the City of St. Louis, Missouri, which was denied by that court on November 12, 1969.
In support of his petition for a writ of habeas corpus, petitioner contends that his confinement is unlawful in that his constitutional rights were violated by the following: (1) the trial court erred in overruling his motion for a continuance as there was prejudicial pretrial publicity concerning his case; (2) he was denied a fair and impartial jury selected from a cross section of the community in which he was tried; (3) the trial court erred in allowing the jury to receive evidence and testimony concerning an alleged confession made by petitioner; (4) the Missouri Supreme Court erred, during the pendency of the direct-appeal proceeding and before a determination of the merits, by directing the trial court to make a nunc pro tunc determination with respect to whether the alleged confession of petitioner was voluntary; and (5) the trial court erred in its refusal to instruct the jury on consideration of a possible verdict of second-degree murder.
An examination of the official report of the decision on appeal of the Missouri Supreme Court in State v. Glenn, supra, and the order of the Missouri Supreme Court, dated July 8, 1968, overruling petitioner's application to the Missouri Supreme Court for a special order permanently setting aside the imposition of the sentence of death, reveals that the five grounds presented here by petitioner were considered by the Missouri Supreme Court. Therefore, petitioner has exhausted his remedies available in the state courts. Petitioner contends that the trial court's refusal to grant him a continuation deprived him of a fair and impartial trial due to prejudicial pretrial publicity. With respect to the news articles and editorials appearing in St. Louis newspapers for a period of about two weeks before petitioner's trial of which petitioner complained, the Missouri Supreme Court found that the articles did not concern his case, but were reports of a number of assaults upon police officers (defendant was convicted of killing a police officer), and that the editorials advocated respect for law and one criticized two judges who had granted probation to two "notorious criminals". The Missouri Supreme Court held that there was no abuse of discretion by the trial court in denying the motion for a continuance. The Missouri Supreme Court further pointed out that defendant's counsel questioned all of the prospective jurors on voir dire examination concerning those articles and editorials and all of them indicated that such would not affect their decisions if chosen as jurors in the case.
This Court recognizes that a person's right to a fair trial can be violated even without a showing of identifiable prejudice, if the totality of the circumstances raises the probability of prejudice. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). However, as the Court stated in Brown v. United States, 403 F.2d 489, 491 (5th Cir. 1968), cert. den. 397 U.S. 927, 90 S. Ct. 932, 25 L.Ed.2d 106 (1970): "While we are sensitive to the due process implications of pretrial publicity, we refuse to see prejudice where none has been revealed." In the instant case there was no reasonable likelihood that prejudicial news prior to trial prevented a fair trial, or indeed that the news was prejudicial to petitioner at all. Thus, petitioner's contention is without merit.
Petitioner contends that the trial court erred in allowing the jury to receive evidence and testimony concerning an "alleged" confession made by petitioner to an Officer Keady on July 5, 1964, at a time when he was being detained without the benefit of counsel and was hospitalized in "critical condition" subsequent to surgery, and "under the effects of medical sedation and narcotics".
An examination of the record supports the finding of the Missouri Supreme Court that there is nothing in the record to indicate that on July 5, 1964, petitioner was suffering severe pain or that he did not fully understand the subject matter of the conversation in issue. In assuming for the purposes of his appeal, but not deciding, that the warnings as to petitioner's constitutional rights were not effective, the Missouri Supreme Court did not find the principles of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), to be applicable to the case. Applying the "totality of the circumstances" test, recognizing that the presence or absence of advice concerning constitutional rights is a factor to be taken into consideration, the Missouri Supreme Court held that the confession was not involuntary or inadmissible as a matter of law, but was properly admitted.
As this case was tried after Escobedo v. Illinois, supra, but prior to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), only Escobedo is applicable. The principles of Miranda do not apply to criminal trials begun before the date of the Miranda decision. Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L.Ed.2d 882 (1966).
The Missouri Supreme Court pointed out in regard to the inapplicability of Escobedo to this case, that it has frequently said that it will not extend the ruling of Escobedo beyond the facts of that case, citing State v. Dixon, 411 S. W.2d 185 (Mo.1967), vacated on other grounds, 434 S.W.2d 564 (1968). In that case, the Missouri Supreme Court explained that in order for the precise holding of Escobedo to apply, there must be present the element of a request for counsel by the suspect and a denial by the police. A review of the record supports the position of the Missouri Supreme Court that the facts of the instant case do not call for the application of Escobedo.
The exact application of Escobedo before the Miranda decision was unclear. As the Supreme Court of the United States pointed out in Miranda v. Arizona, supra, 384 U.S. at 440, 86 S.Ct. at 1610:
Although the Supreme Court broadened the application of Escobedo in its Miranda decision, this is only applicable to those whose trials began after Miranda. Johnson v. New Jersey, supra.
The lack, or inadequacy of warnings as to constitutional rights is a factor to be taken into consideration in determining the voluntariness of a confession even in those cases before Miranda. See Johnson v. New Jersey, supra; Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). But the question of whether a confession is voluntarily made turns on the totality of the circumstances in any particular case. See Boulden v. Holman, Warden, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); see also Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968). As the state court did not depart from proper constitutional standards, petitioner's contention that his confession was inadmissible is without merit.
Petitioner further contends that the Missouri Supreme Court erred in allowing the trial court to make a nunc pro tunc determination on the voluntariness issue. Petitioner contends he should have been given an evidentiary hearing.
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908 (1964), established the principle that when the issue of voluntariness is raised, a defendant has a constitutional right to a full and fair hearing outside the presence of the jury, and a reliable determination of the voluntariness of a confession without regard to its truth or falsity before its admission.
During the pendency of petitioner's case on direct appeal, the Missouri Supreme Court found that the trial court had only partially complied with the requirements set forth in Jackson v. Denno, supra, and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). The Court noted that while there had been a hearing outside the presence of the jury and a determination as to the admissibility of the confession at the conclusion of that hearing, the transcript failed to show with unmistakable clarity that the trial court had found the confession to be voluntary. Thus, the Missouri Supreme Court ordered the trial court to make an express finding as to whether said confession was or was not voluntary after said trial court gave counsel notice and opportunity to present argument in regard thereto, with defendant present. In accordance with said order, the trial court found the statements to be voluntary and filed a...
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