Gorham v. Franzen, 83-3159

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before BAUER, WOOD and CUDAHY; BAUER; Pursuant to this court's opinion in Gorham I, Judge Moran held an evidentiary hearing. In again granting the writ; CUDAHY
• Citation: 760 F.2d 786
• Parties: Robert GORHAM, Petitioner-Appellee, v. Gayle FRANZEN, Director and James Greer, Warden, Respondents-Appellants.
• Docket Number: No. 83-3159,83-3159
• Decision Date: 03 June 1985

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760 F.2d 786 Robert GORHAM, Petitioner-Appellee,
v.
Gayle FRANZEN, Director and James Greer, Warden,
Respondents-Appellants. No. 83-3159. United States Court of Appeals,
Seventh Circuit. Argued Sept. 24, 1984.
Decided April 23, 1985.
Rehearing Denied June 3, 1985.

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Neal B. Goodfriend, Atty. Gen. of Ill., Chicago, Ill., for respondents-appellants.

Martin Carlson, Chicago, Ill., for petitioner-appellee.

Before BAUER, WOOD and CUDAHY, Circuit Judges.

BAUER, Circuit Judge.

This case presents us with the second appeal in this habeas corpus action, in which the district court has twice granted the writ. In its first order in this case granting the writ, the district court reviewed the state court record and concluded that Gorham's confession was obtained in violation of his fifth amendment right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On appeal, this court vacated the district court's order and remanded the action for an evidentiary hearing to determine whether Gorham had invoked his right to remain silent prior to questioning by the police. United States ex rel. Gorham v. Franzen, 675 F.2d 932 (7th Cir.1982) (Gorham I). On August 23, 1982, the district court held an evidentiary hearing and on June 29, 1983, again granted the writ of habeas corpus. After a thorough review of the record in this case, we reverse.

I. FACTS

A. Procedural History Of This Case

Robert Gorham was arrested on April 2, 1976, for the murder on January 10, 1975, of Kenneth Thompson. Also arrested on April 2 in connection with the murder was Kenneth Thompson's wife Kathleen. On the night of his arrest, Gorham was interrogated by several officers. During the interrogation Gorham agreed to confess to the murder. A court reporter was brought in to take Gorham's confession. The questions and answers which comprised Gorham's confession amounted to a 42-page transcript. During a motion to suppress the confession at the state trial, Gorham contended that the confession was the product of a psychological coercion because of alleged threats of prolonged imprisonment, the denial of methadone for Gorham's detoxification, and promises of leniency. Because Gorham made no assertion at the state suppression hearing that he had invoked his right to remain silent prior to answering the questions which resulted in his confession, the focus of the suppression hearing was on the voluntariness of the confession. The trial court denied the motion to suppress and the government used the confession and its contents as part of its evidence against Gorham. The defendant was convicted by a jury and sentenced to a term of 100 to 200 years imprisonment.

Gorham appealed his conviction to the Illinois Appellate Court. People v. Gorham,

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6 Ill.App.3d 320, 23 Ill.Dec. 370, 384 N.E.2d 6 (1978). Gorham based his appeal on the ground that he had not knowingly and intelligently waived his right to remain silent and therefore the trial court had improperly denied his motion to suppress his confession. The Illinois Appellate Court affirmed the conviction, holding that based on the entire record of the case and the circumstances surrounding the confession, Gorham did not "manifest a desire to terminate the questioning." 66 Ill.App.3d at 324, 23 Ill.Dec. at 374, 384 N.E.2d at 10. The Supreme Court of Illinois denied Gorham's petition for leave to appeal. People v. Gorham, No. 51683 (Ill. March 29, 1979).

On August 27, 1980, Gorham filed a petition for writ of habeas corpus in the district court pursuant to 28 U.S.C. Sec. 2254. On April 17, 1981, the district court found that the Appellate Court's determination that Gorham had not clearly invoked his right to remain silent was not fairly supported by the record of the evidentiary hearing held by the Illinois trial court. The district court thus granted the writ and remanded the cause to the state courts for a new trial.

In Gorham I, a panel of this court vacated the writ and remanded the cause to the district court for further evidentiary hearings on the issue of whether Gorham had unequivocally expressed his desire to remain silent, and thus asserted his right to cut off questioning. 675 F.2d at 937. We remanded because the suppression hearing in the state trial court on which the district court based its conclusion was developed with the intention of determining whether Gorham's confession was the result of psychological coercion and not with the intention of determining whether Gorham had equivocated in asserting his Miranda rights. We found that certain ambiguities in the state court record necessitated further evidence to clarify these ambiguities. The determinative factual question in this case is whether Gorham did or did not refuse to make a statement to Officer Douglas Barger at the time of his arrest, and if he did refuse, was the refusal to talk only to Barger or a refusal to make any statement pursuant to his fifth amendment rights under Miranda.

B. State Suppression Hearing

The evidence from the state court's suppression hearing basically showed the following facts. On the day of Gorham's arrest in Peoria, Illinois, he was brought to Chicago, arriving at approximately 9:30 p.m. During the trip from Peoria, no one questioned the defendant. Gorham was taken to Assistant State's Attorney Ken Gillis' office by Officers Carl Kuester and Joseph Robustelli. In Gillis' office, Gorham was left in the custody of Lieutenant Douglas Barger, Assistant State's Attorneys Thomas Helsel and William Prendergast, and Illinois Bureau of Investigation (IBI) Agent Thomas Naughton.

Barger testified during the suppression hearing that he recited to Gorham his Miranda rights, that he asked Gorham if he wished to make a statement, and that Gorham responded that he did not want to make any statement at that time. According to Naughton's testimony at the suppression hearing, Gorham responded to Barger by stating that the murder charge

was a pretty heavy beef, he is not quite sure whether or not he would want to make a formal statement, that he did four years at Menard and there was plenty of people at Menard who were there only because they did give statements and he then said he is not quite sure whether he would want to go that route.

675 F.2d at 933. Helsel testified as follows on cross examination to the defendant's questioning:

Q. Now during this period of time, that 10 or 15 minutes, Mr. Gorham declined or refused to make a statement, isn't that correct?

A. To the best of my recollection, yes.

State Tr. 135.

Shortly thereafter, Barger and Helsel left Gillis' office, spoke to Kuester and Robustelli, who subsequently continued to interrogate Gorham. Kuester again gave Gorham his Miranda rights; Gorham made no response. Robustelli then began to interrogate

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Gorham and told him of the evidence that they presently had against him. Robustelli testified under cross-examination about Gorham's initial statements to him:

Q. And when you initially told him what you had did he decline to make a statement, did he say I don't want to make a statement?

A. He didn't say anything.

Q. What was the first thing he said to you at this time in the course of this conversation?

A. Kathy [Thompson] is here, that is what he said.

State tr. 29.

Kuester then testified that he advised Gorham of his rights in the presence of Robustelli, and that Gorham stated that he understood each of his Miranda rights. Kuester did not testify that Gorham stated to him or Robustelli at any time that he wished not to make any statement to them. In fact, Kuester testified that when Robustelli asked Gorham if he wished to tell them about Ken Thompson's murder Gorham replied "How is that?" and shortly thereafter asked if Kathy Thompson was there at the station. State tr. 44.

C. District Court Rulings

The district court in the first action in this cause determined that other substantial evidence in the record contradicted the Appellate Court's determination that Gorham had not unequivocally exercised his right to remain silent. The district court relied on Barger's statements on cross-examination at the suppression hearing, including the following statements:

Q. What did you do after you read him his rights?

A. I asked him would he like to make a statement regarding this charge.

Q. He said no, is that correct?

A. He said no.

State tr. 87. The district court also relied upon Helsel's cross-examination statement that to the best of his recollection Gorham refused to make a statement. State tr. 135.

In addition to these statements the court found that the confession was involuntary because of the police conduct in bringing Mrs. Thompson into the interrogation room and in presenting the defendant with the evidence that the police had against him at that point.

A panel of this court vacated this ruling by the district court because we felt that the record on which the district court based its conclusion inadequately addressed the factual question before the district court. We determined that further testimony was needed to properly determine whether Gorham "declined" to make a statement at that time, in the sense of equivocating, or whether he was indeed "invoking" his right to remain silent.

On August 23, 1982, Judge Moran held the evidentiary hearing at which Gorham and the Police Officers and Assistant State's Attorneys present the night of Gorham's arrest testified as to the nature of Gorham's statements that evening. Essentially, Barger, Helsel, and Naughton all testified at this hearing that when Barger asked Gorham whether he wanted to make a statement, Gorham responded that he did not "want to talk to you," which each of them understood to mean that Gorham wished only not to speak to Barger. Hearing on remand tr. 26, 51, 99-100. In addition, Barger and Robustelli testified that when Barger came out of the office after talking to Gorham, Barger told...