Hill v. Whealon

• Decision Date: 11 January 1974
• Docket Number: No. 73-1549.,73-1549.
• Citation: 490 F.2d 629
• Parties: William D. HILL, Petitioner-Appellant, v. W. J. WHEALON, Superintendent, Southern Ohio Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

490 F.2d 629 (1974)

William D. HILL, Petitioner-Appellant, v. W. J. WHEALON, Superintendent, Southern Ohio Correctional Facility, Respondent-Appellee.

No. 73-1549.

United States Court of Appeals, Sixth Circuit.

Submitted October 17, 1973.

Decided January 11, 1974.

William D. Hill, pro se.

William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on brief for respondent-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.

PHILLIPS, Chief Judge.

William D. Hill, the petitioner-appellant in this habeas corpus case, was given Miranda warnings immediately after being taken into custody and declined to make a statement. About an hour and a half later he again was given Miranda warnings by another officer and made an oral confession.

The District Court ruled that the confession was properly admitted into evidence. The record demonstrates to the satisfaction of this court that, under the facts and circumstances of this case, the prosecution has carried the "heavy burden" of proving that the confession was voluntary. We affirm the denial of the writ.

Hill contends that once he had declined to make a statement following Miranda warnings, any subsequent statement made by him necessarily would be inadmissible. In support of this contention he relies upon the following language in Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627, 16 L. Ed.2d 694 (1966):

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked."

Following the foregoing statement, the opinion in Miranda continues:

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.

"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." 384 U.S. at 475, 86 S.Ct. at 1628.

The question to be determined in this case, as in other cases involving Miranda warnings, is whether the prosecution has carried its "heavy burden" of establishing that Hill was advised effectively of his rights and whether his confession was made knowingly and voluntarily.

We agree with the language of Judge Matthes in Hughes v. Swenson, 452 F.2d 866, 868 (8th Cir. 1971):

"It is neither necessary nor desirable to undertake to fashion a per se rule to be applied in all cases presenting the Miranda issue. The crucial question always must be: has the prosecution sustained its heavy burden of demonstrating that the defendant was effectively advised of his rights, and did he knowingly and understandingly decline to exercise them?"

Hill was found guilty of second degree murder in a jury trial in the Court of Common Pleas of Lucas County, Ohio. On April 14, 1971, he was sentenced to life imprisonment in the Ohio Penitentiary. The conviction was affirmed by the Court of Appeals of the Sixth Ohio Appellate District. His motion for leave to appeal was overruled by the Ohio Supreme Court and the appeal dismissed for lack of a substantial constitutional question. The Miranda contention asserted in the present case was rejected by both of the Ohio Appellate Courts.

In denying the application for habeas corpus, District Judge Nicholas J. Walinski made the following findings, which are supported fully by the record:

"At or about 8:00 p.m. on the evening of September 9, 1970 Sergeant John Mason of the Toledo Police Department informed Detective Russ Field of the same police force, that he had received some information concerning a possible homicide. Sometime between 9:00 and 9:30 p.m. of the same evening, in furtherance of the investigation, Detective Field and Lieutenant Gene Huffman picked up Sergeant Mason at his home and proceeded to the East Side where they picked up Deputy Chief Davy. They drove around the East Side looking for one Ronald Bennett, a person Sergeant Mason had interviewed earlier at about 5:00 p.m. on September 8th. They found Mr. Bennett between 11:30 p.m., and midnight and took him to the police station for questioning. Between midnight and 12:15 a.m. on the 9th of September, Mr. Bennett made a statement to Sergeant Mason and Detective Field which implicated William David Hill in the homicide case under investigation. At or about 1:00 a.m., subsequent to the interview with Bennett, Sergeant Mason learned that Mr. Hill had been taken into custody.

"Mr. Hill was taken into custody by Lieutenant Huffman and several other police officers at or about midnight on the 8th at the Arlington Hotel. He was taken from there to the police station by Lieutenant Huffman and two other officers. After they arrived at the police station, Lieutenant Huffman took Mr. Hill to the Detective Bureau. After informing him of his rights pursuant to the standards set forth in Miranda, Lieutenant Huffman asked Mr. Hill if he was willing to waive his rights and Mr. Hill replied unequivocally, that he was not. Thereupon Lieutenant Huffman had Mr. Hill booked, and shortly thereafter, Mr. Hill was placed in a cell at or about 12:30 a.m. on September 9th.

"Sometime around 1:00 a.m. of the same morning, Sergeant Mason became aware of the fact that Mr. Hill was in custody. At some time during this period he spoke to two of the officers who had apprehended Mr. Hill, Lieutenant Huffman and Deputy Chief Davy. Lieutenant Huffman, of course, was the person who attempted to interrogate Mr. Hill a short time before. The context of the conversation which these officers had was not brought out either on direct examination or on cross examination, but Sergeant Mason did testify that he was aware of the fact that Lieutenant Huffman had talked to Mr. Hill earlier. Whether Lieutenant Huffman informed Sergeant Mason that Mr. Hill refused to waive his constitutional rights during the earlier interrogation is not clear from the record, but, for the purpose of this petition, this Court will assume that Sergeant Mason was so informed.

"At approximately 2:00 a.m., Sergeant Mason and Detective Field went to Mr. Hill's cell. Mr. Hill was lying down at the time. They called his name; he sat up; and then Sergeant Mason truthfully related to him that they had obtained a statement from Ronald Bennett. Sergeant Mason then asked him if he wanted to talk about it and Mr. Hill said, `Yes, I might as well.' (Record at 13). Immediately thereafter, Sergeant Mason and Detective Field escorted Mr. Hill from his cell to the Detective Bureau for the purpose of questioning him. Detective Field left the interrogation room soon after they arrived there to get some coffee for Mr. Hill; he did not return to the room until 2:25 or 2:30 a.m.

"Soon after Detective Field left, and before the questioning began, Sergeant Mason fully advised Mr. Hill of his constitutional rights. After reading each portion of the warning to him, he inquired of Mr. Hill whether he understood it and Mr. Hill indicated that he did. After completing the appropriate warnings, Sergeant Mason informed Mr. Hill that he could proceed no further with the interrogation unless Mr. Hill was willing to waive his rights. (Mr. Hill, having had the experience of the earlier interrogation with Lieutenant Huffman an hour and a half earlier, must have been aware of the fact that if he expressed a desire to proceed no further with the interrogation, the interrogation would cease.) Mr. Hill then stated that he was willing to waive his rights.

"Twenty-five to thirty minutes later, Detective Field returned to the interrogation room, presumably with some coffee, and at that time Mr. Hill was asked to repeat a statement which he had made to Sergeant Mason while they were alone. He was again advised of his rights by Detective Field, and Mr. Hill agreed to repeat his statement.

"After going over the statement one or two times, Sergeant Mason asked Mr. Hill if he was willing to have his statement recorded on a tape recorder. Mr. Hill indicated that he thought his statement had already been recorded, but when the officers informed him that it had not been, he said, `Before I do that, I think I should probably talk to a lawyer.' (Record at 18.) Sergeant Mason ceased the interrogation immediately. He asked Mr. Hill if he wanted to call a lawyer; Mr. Hill said he did not. He asked him if he had a lawyer; Mr. Hill said he did not. Sergeant Mason asked Mr. Hill if he wanted him to call a lawyer for him; Mr. Hill said he did not. Then Mr. Hill was taken back to his cell.

"At...