Harper v. Grammer, CV83-L-786.

• Decision Date: 24 February 1987
• Docket Number: No. CV83-L-786.,CV83-L-786.
• Citation: 654 F. Supp. 515
• Parties: Steven Roy HARPER, Petitioner, v. Gary GRAMMER, Warden, Respondent.
• Court: U.S. District Court — District of Nebraska

654 F. Supp. 515

Steven Roy HARPER, Petitioner, v. Gary GRAMMER, Warden, Respondent.

No. CV83-L-786.

United States District Court, D. Nebraska.

February 24, 1987.

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Vincent M. Powers, Lincoln, Neb., for petitioner.

Robert Spire, Atty. Gen., Lincoln, Neb., for respondent.

MEMORANDUM OF DECISION

URBOM, District Judge.

Steven Roy Harper was convicted of two counts of murder in the first degree and three counts of poisoning with intent to kill, based upon evidence of a poisoning incident. He was sentenced to death by electrocution. His petition for a writ of habeas corpus is before this court now. The United States Magistrate David L. Piester's recommendation on each of the issues has been received and considered, as well as the entire record in the case, as it was made at the time of the trial in the District Court of Douglas County, Nebraska, the post-conviction proceeding in that court, and two appeals to the Supreme Court of Nebraska. I shall consider the individual claims in the order in which they were stated in the amended petition for writ of habeas corpus, using the same paragraph numbers that the amended petition used.

No issue of exhaustion of state remedies has been raised as to any claim, unless it is hereafter discussed with respect to the particular claim.

CLAIM 13A — STATEMENTS TAKEN FROM THE PETITIONER

The magistrate's report and recommendation accurately describes the factual situation at page 9:

"Petitioner was arrested on October 13, 1978, in connection with the deaths of two persons and the illness of three others as a result of poisoning. After a pretrial suppression hearing, the judge recognized that statements taken from the petitioner on October 13, 1978, and on January 8, 1979, were obtained in violation of Miranda and were therefore inadmissible in the state's case-in-chief, although they would be admissible as impeachment should the petitioner testify at trial. The judge found that both statements, although taken in violation of Miranda, were freely and voluntarily given by the petitioner who had full possession of all his faculties under circumstances which would enhance the reliability and truthfulness of the statements. (Criminal docket entry dated August 31, 1979, Transcript, Volume I)."

The magistrate's report and recommendation continues:

"The petitioner asserts that the trial court used the wrong standard in finding the confessions voluntary and failed to make factual findings underlying its ruling in that regard. He also asserts that the trial court failed to address the Sixth Amendment violations present in the circumstances of both confessions, and failed to identify and find inadmissible the identity of the chemical poison which was the "fruit" of the tainted statement of January 8."

Whatever standard was used by the state trial judge and the Supreme Court of Nebraska, the standard which must be applied now in this court is stated in Mincey v. Arizona, 437 U.S. 385, 397-98, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978):

"Statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 supra, are admissible for impeachment if their `trustworthiness ... satisfies legal standards.' Harris v. New York, supra, 401 U.S. 222 at 224 91 S.Ct. 643, 645, 28 L.Ed.2d 1; Oregon v. Hass, supra, 420 U.S. 714 at 722 95 S.Ct. 1215, 1220, 43 L.Ed.2d 570. But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law `even though there is ample evidence aside from the confession to support the conviction.' ... If, therefore, Mincey's statements to Detective Hust were not `the product of a rational intellect and a free will,' ... his conviction cannot stand. In making this critical determination, we are not bound by the Arizona Supreme Court's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record. Davis v. North Carolina, 384 U.S. 737, 741-42 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895...."

The Supreme Court of the United States in Miller v. Fenton, ___ U.S. ___, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) specifically held that the voluntariness of a confession is not an issue of fact entitled to the § 2254(d) presumption, but is a legal question meriting independent consideration in a federal habeas corpus proceeding.

Quite aside from the finding by the state courts, therefore, I must review the record to determine whether Harper's statements of October 13, 1978, and January 8, 1979, were the product of a rational intellect and a free will. If they were, they were properly usable as possible impeachment of Harper, were he to take the stand. He did not take the stand and the claim is that he was deterred in doing so because of the trial judge's holding that the statements of October 13, 1978, and January 8, 1979, could be used as impeachment.

Although I have thoroughly reviewed the record as it now exists, the petitioner has asked for a hearing at which he may submit other evidence. It is proper that he have such a hearing, if he has additional evidence to present.

As to that portion of Claim 13A that the identity of the chemical poison used was the "fruit" of a tainted statement or statements, and therefore inadmissible at the trial, that determination may also be a matter for me to find, rather than depending upon findings by the state courts. The court in Hamilton v. Nix, 781 F.2d 619 (8th Cir.1985), in a two-to-one decision said, in footnote 8, page 625:

"The state also properly points out that the findings of the state court on factual questions are entitled to a presumption of correctness. Sumner v. Mata, 455 U.S. 591 102 S.Ct. 1303, 71 L.Ed.2d 480 ... (1982); 28 U.S.C. § 2254(d). We are therefore bound by the state court's finding that the police were aware of Maxine Hamilton's identity and potential as a witness prior to the occurrence of any police misconduct since that finding is supported by the record. While accepting these facts as true, we are not, however, bound by the state court's holding regarding the ultimate question of the constitutionality of admitting the evidence. Whether the evidence was attenuated, had an independent source, or would inevitably have been discovered are questions of federal law.... citations omitted"

Accordingly, the petitioner, as well as the state, should be given the opportunity to present any additional evidence on the subject of whether the identity of the chemical poison was the fruit of the statements of the petitioner on October 13, 1978, or January 8, 1979, or, on the other hand, was attenuated, had an independent source, or would inevitably have been discovered.

CLAIM 13B — IMPROPER PROSECUTORIAL COMMENT

During the closing argument to the jury, the prosecutor recounted in great detail the evidence of the defendant's guilt in entering the home of his former girlfriend and her husband and children, inserting a carcinogenic drug into a lemonade pitcher in the icebox. He then said:

"Another aspect of the thing is that whoever did this — It's — It's not a secret that these people are sick, and it's not a secret that people have died. All along, you know, the person that did it can do one thing. He can say, `Yeah, the substance used was this, so I'm going to help...."'

(Bill of Exceptions, VII, 1331:15-19).

The defense counsel immediately moved for a mistrial and the judge denied the motion but instructed the jury to disregard the statements.

Darden v. Wainwright, ___ U.S. ___, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) set the standard for determining whether a prosecutor's remarks amount to a denial of due process. The court said at ___, 106 S.Ct. at ___:

"The relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process'. Donnelly v. DeChristoforo, 416 U.S. 637 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is `the narrow one of due process, and not the broad exercise of supervisory power.' Id., at 642 94 S.Ct. at 1871."

The petitioner has objected to the magistrate's report and recommendation in this respect, arguing that the magistrate has confused two different lines of authority regarding improper prosecutorial comments in closing arguments. He argues that Darden v. Wainwright and Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) deal with inflammatory, not inaccurate, prosecutorial statements, whereas the statement involved in the present case is an inaccurate one and should be governed by the due process principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). I find no such confusion. Brooks v. Kemp dealt with some comments that were inflammatory and some that were not supported by the evidence. Brady v. Maryland and United States v. Agurs do not deal with closing argument, but with evidence that the prosecution did not disclose. In any event, the standard used in Brady and Agurs would not be helpful to the defense here. The court in Agurs defined the standard of undisclosed evidence as follows:

"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omissions must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no

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