Hendricks v. Swenson

• Decision Date: 30 March 1972
• Docket Number: No. 71-1455.,71-1455.
• Citation: 456 F.2d 503
• Parties: Joseph HENDRICKS, Appellant, v. Harold R. SWENSON, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

456 F.2d 503 (1972)

Joseph HENDRICKS, Appellant, v.Harold R. SWENSON, Warden, Appellee.

No. 71-1455.

United States Court of Appeals, Eighth Circuit.

March 1, 1972.

Rehearing and Rehearing Denied March 30, 1972.

Joseph Hendricks, on brief pro se.

John C. Danforth, Atty. Gen., and Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., on brief for appellee.

Before GIBSON and HEANEY, Circuit Judges and VAN PELT, Senior District Judge.

Rehearing and Rehearing En Banc Denied March 30, 1972.

VAN PELT, Senior District Judge.

AppellantJoseph Hendricks appeals from a denial of his petition for writ of habeas corpus.The district court, in an unreported opinion of Judge Wangelin, denied the writ without a hearing.

Appellant was convicted of first degree murder by a jury in the Circuit Court of St. Louis County, Missouri.He was sentenced to life imprisonment on September 12, 1969.He appealed to the Missouri Supreme Court, which affirmed the conviction and sentence.State v. Hendricks, 456 S.W.2d 11(Mo.1970).

The claims on appeal are: (1) that the State failed to establish beyond a reasonable doubt an essential element of the crime charged, to-wit, that the defendant made an assault on one Francis Krewit on October 22, 1968, and (2) that the trial court erred in denying defendant's motion to suppress all statements made by the defendant to certain police officers, including tape recordings taken in the prosecuting attorney's office, on the grounds these statements were obtained by means of mental and physical coercion.These same claims were directly ruled upon by the Missouri Supreme Court and thus the appellant has effectively exhausted his state remedies.Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900(1959);Losieau v. Sigler, 421 F.2d 825(8th Cir.1970);Capler v. Greenville, 422 F.2d 299(5th Cir.1970).We affirm.

Hendricks' first claim is that the State failed to establish beyond a reasonable doubt the element of the crime above mentioned.He admits that he robbed and assaulted the decedent on October 12, 1968.He denies he made, or took part in, any assault on October 22, 1968.Decedent was admitted to the hospital October 24th and died on October 26, 1968.

Habeas corpus will not lie to question the sufficiency of the evidence supporting a conviction unless there is such an absence of evidence that the conviction violates the due process clause of the Fourteenth Amendment.Freeman v. Stone, 444 F.2d 113(9th Cir.1971);Young v. Alabama, 443 F.2d 854(5th Cir.1971);Holloway v. Cox, 437 F.2d 412(4th Cir.1971);Johnson v. Turner, 429 F.2d 1152(10th Cir.1970).This court has carefully examined the transcript of the evidence at the trial.Statements made by the defendant and corroborated by police officers, when considered with the testimony of a neighbor of decedent, who testified that he saw Hendricks coming from decedent's house across a gangway into witness's yard at approximately 1:30 o'clock A.M. on October 22, 1968, support the State's claim that Hendricks made the assault in the early morning hours of October 22, 1968.We cannot say that the conviction was so devoid of evidentiary support as to raise a due process issue.

Appellant next claims that the trial court should have suppressed certain statements made to the police and the video tape recording of those statements which was shown to the jury.It is the appellant's contention that the statements were obtained by means of mental and physical coercion.An examination of the transcript of the hearing on appellant's motion to suppress supports the conclusion that the statements given by appellant were freely and voluntarily given, with full and complete knowledge of the consequences.The police officers testified that they fully advised appellant of his constitutional rights; that he was allowed to make a phone call; that he stated he did not want to have a lawyer present; and that absolutely no force was used in obtaining appellant's statements or confession.

The issue the dissent raises as to appellant's mental capacity requires brief comment.This has not been passed on by any other judge except as it was involved in the hearing on the motion to suppress evidence.

Mr. Hendricks testified in that hearing as to special classes in three schools but that at St. Francis Xavier School he was not in a special class (T.p.29).His sister, Mrs. Guiot, who testified at the murder trial, was not questioned about the matter and Mr. Hendricks' counsel did not question him about it at the trial.Hendricks appears here pro se.

Finding that the statements were given voluntarily, the use of the video tape did not impinge appellant's constitutional rights.The officers testified that they advised appellant that a video tape would be used; that it could be used against him in court; and that it would record his picture as well as his voice.In addition, the video tape operator explained the video tape recorder to the appellant before taking his statement.Thus appellant was aware of the use of the video tape, and its effect.

Such use of a video tape is supported by recent changes in the Federal Rules of Civil Procedure which, under Rule 15(a) of the Federal Rules of Criminal Procedure, become applicable in criminal cases.

The Federal Rules of Civil Procedure provide for the taking of depositions by other than stenographic means and presuppose their use in court.SeeCarson v. Burlington Northern, Inc., 52 F.R.D. 492(D.Neb.1971).No valid distinction exists between the use of a deposition taken by video tape and the use of a statement taken by video tape.The Congress, in adopting the Organized Crime Control Act in October, 1970, recognized Rule 15, supra, and again provided for taking depositions in criminal cases in the manner provided in civil actions.See18 U.S.C.A. § 3503(d).

There are other reasons for our holding.It is elementary that a person in lawful custody may be required to submit to photographing, Smith v. United States, 117 U.S.App.D. C. 1, 324 F.2d 879(1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498(1964), and authenticated photographs of the defendant are admissible at trial to identify him.United States v. Parhms, 424 F.2d 152(9th Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 92, 27 L. Ed.2d 83(1970);United States v. Hobbs, 403 F.2d 977(6th Cir.1968);United States v. Amorosa, 167 F.2d 596(3d Cir.1948).

The Model Code of Evidence, issued by the American Law Institute's Committee on Evidence in 1942, proposed in the comment to Rule 105(j) the use of a "talking motion picture machine" upon verification that the record "has produced and will produce accurately a confession of defendant."

In so doing, the American Law Institute was not only approving the position expressed by the text writers but also the law as announced in the few reported cases up to that time.SeeCommonwealth v. Roller, 100 Pa.Super. 125(1930)(sound and motion picture film of defendant's confession to a burglary charge held admissible);People v. Hayes, 21 Cal.App.2d 320, 71 P.2d 321(1937)(manslaughter; sound motion picture of the defendant making a confession to police officers was admitted).Since then other cases have so held.People v. Dabb, 32 Cal.2d 491, 197 P.2d 1(1948)(court admitted into evidence a sound motion picture showing defendants reenacting the crime and admitting that they had committed the crime in the manner depicted);Paramore v. State, 229 So.2d 855(Fla.1969)(video tape of defendant's confession admitted into evidence);Grant v. State, 171 So. 2d 361(Fla.1965), cert. denied, 384 U.S. 1014, 86 S.Ct. 1933, 16 L.Ed.2d 1035(1966)(color motion picture portraying a voluntary reenactment of the crime by defendant held admissible);Jones v. State, 151 Tex.Crim. 519, 209 S.W.2d 613(1948)(motion picture of defendant charged with bribery held admissible).See alsoUnited States v. Moran, 194 F. 2d 623(2d Cir.), cert. denied, 343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362(1952)(motion picture without sound was admitted to show defendant's demeanor while testifying before a Senate subcommittee, the charge being that defendant had committed perjury before that subcommittee).

Several courts have also upheld the use of motion pictures showing a defendant's demeanor or condition following his arrest for driving under the influence of alcohol.See, e. g.,State v. Strictland, 276 N.C. 253, 173 S.E.2d 129(1970);Lanford v. People, 159 Colo. 36, 409 P.2d 829(1966);Housewright v. State, 154 Tex.Crim. 101, 225 S.W.2d 417(1949).See alsoComment, Use of Videotape in the Courtroom and the Statehouse, 20 DePaulL.Rev. 924(1971); and the note in 62 A.L.R.2d 686.

Differing with our colleague, we suggest that a video tape is protection for the accused.If he is hesitant, uncertain, or faltering, such facts will appear.If he has been worn out by interrogation, physically abused, or in other respects is acting involuntarily, the tape will corroborate him in ways a typewritten statement would not.Instead of denying a defendant his rights, we believe it is a modern technique to protect a defendant's rights.

We do not agree with our colleague as to the need for make-up and other preparation to project a better image.To permit the applying of make-up would defeat the true purpose of a statement which is to present the facts as they are.It would place in the hands of any person willing to alter evidence the opportunity to eliminate cuts, bruises, or other signs, if any, of mistreatment.

If a proper foundation is laid for the admission of a video tape by showing that it truly and correctly depicted the events and persons shown, and that it accurately reproduced the defendant's confession, we feel that it is an advancement in the field of criminal procedure and a protection of defendant's rights.We suggest that to the extent possible, all statements of defendants should be so preserved.

The dissent...