Holland v. Swenson

• Decision Date: 27 May 1970
• Docket Number: Civ. A. No. 1191.
• Citation: 313 F. Supp. 565
• Parties: Edgar HOLLAND, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

313 F. Supp. 565

Edgar HOLLAND, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 1191.

United States District Court, W. D. Missouri, C. D.

March 11, 1970.

As Amended May 27, 1970.

Granville Collins, Columbia, Mo., for petitioner.

Robert Jones, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

AMENDED JUDGMENT DENYING PETITION FOR HABEAS CORPUS

BECKER, Chief Judge.

Introduction

This is a postconviction proceeding to review a state court conviction of petitioner on a charge of murder of his wife over 25 years ago. Before his trial and direct appeal to the state Supreme Court, the defendant was a reasonably affluent white business man, suspected of the brutal murder of his wife and mother-in-law. He was and still is able to employ unusually skilled trial counsel.

The search for evidence and the evidentiary hearings involved many detailed claims including claims of inadequate assistance of counsel and of alleged wrongful search and seizure, among others. Because of the dimness of memories, difficulties in securing old files and misunderstanding by the original counsel for respondent of the state's duty to produce evidence, this has been a protracted case.

After the original hearing it was concluded that immediate decision would not be appropriate in the absence of additional evidence. This decision was reached because of the absence of evidence which would normally exist in a case of this type, but which apparently had not yet been adduced. Two additional evidentiary hearings were required before a satisfactory record could be made. Now all available evidence and briefs have been submitted.

Petitioner's Claim for Relief

Petitioner, a state convict confined in the Missouri State Penitentiary, filed in this Court on April 13, 1967, a petition for a writ of habeas corpus to invalidate his conviction of first degree murder by the Circuit Court of Pettis County, Missouri. The conviction was affirmed on appeal by the Supreme Court of Missouri. State v. Holland, 354 Mo. 527, 189 S.W.2d 989. Leave to proceed in forma pauperis was granted and an order to show cause why the requested relief should not be granted was issued.

Petitioner states that he plead not guilty to a charge of first degree murder in the Circuit Court of Pettis County; that he was found guilty of the charge by a jury and on February 3, 1945, was sentenced to a term of life imprisonment upon that conviction; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court; that the Missouri Supreme Court affirmed the judgment and sentence (State v. Holland, supra); that he has previously petitioned for habeas corpus in this Court which was denied on May 5, 1950; that he filed a subsequent habeas corpus petition in this Court which petition was dismissed without prejudice for failure of petitioner to exhaust his available state remedies (see Holland v. Steinhauser, 242 F.Supp. 629, Central Division); that thereafter petitioner filed a motion under Missouri Criminal Rule 27.26, V.A.M.R., in the trial court, which motion was denied on May 28, 1966, and the denial was affirmed on appeal by the Missouri Supreme Court on March 13, 1967 (State v. Holland, Mo., 412 S.W.2d 184); and that he was represented by counsel at his arraignment and plea, at his trial, at his sentencing, on appeal and "as to some" of his postconviction motions and petitions.

Petitioner states the following as grounds for his allegation that his conviction was secured in violation of his federal constitutional rights:

(1) that inadmissible admissions which were used against him at this trial were unlawfully obtained from petitioner in the period dating from May 16 to May 20, 1944, when petitioner was taken by the Missouri Highway Patrol to view the bodies of the deceased victims and to the purported scene of the crime;

(2) that he was denied a speedy trial;

(3) that he was deprived of the effective assistance of adequate counsel in that his counsel inadequately and ineffectively represented him at his trial;

(4) that the prosecuting attorney improperly commented on petitioner's failure to testify at his trial;

(5) that petitioner was illegally arrested and that his request for dismissal of the indictment was denied;

(6) that the prosecution knowingly used perjured testimony against petitioner at his trial, and knowingly suppressed evidence which was favorable to petitioner;

(7) that evidence which was obtained by means of an illegal search and seizure was admitted in evidence against petitioner at his trial; and

(8) that petitioner was denied his right to trial by a fair and impartial jury.

Because the pleadings in the case presented substantial issues of fact (concerning occurrences nearly 25 years ago) and important questions of law, three plenary evidentiary hearings on such issues were held herein. After considering all the evidence, including the oral testimony, deposition and documents, the files and records herein and the undisputed state court records, the following findings of facts and conclusions of law are made:

Findings of Fact and Conclusions of Law

The official report of the Missouri Supreme Court's affirmance of the denial of petitioner's 27.26 motion, State v. Holland, Mo., 412 S.W.2d 184, shows that the following contentions were raised before the Missouri Supreme Court: (1) that his home was searched and certain evidence was thereby seized and used against him without his consent; (2) "that his conviction was substantially based upon admissions made while he was being held incommunicado and during a period of delay in taking him before a judge under circumstances that were inherently coercive"; and (3) that the prosecutor commented to the jury on petitioner's failure to testify. State remedies were thereby exhausted with regard to those contentions, but currently available state remedies were not exhausted with regard to the additional contentions made here. Although the decision of the Missouri Supreme Court was handed down prior to the date of Missouri's newer and more liberalized Criminal Rule 27.26, it postdated the enunciation of current federal standards by the United States Supreme Court in the trilogy of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837, and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, and the recognition by the Missouri Supreme Court of the applicability of such standards in State v. Pickel, Mo., 376 S.W.2d 181, and State v. Herron, Mo., 376 S.W.2d 192. Since those additional contentions raised valid constitutional questions of law and subordinate issues of fact, it was determined that petitioner was entitled to a decision on the merits in this Court because of the exceptional circumstances existing. Because of the extraordinarily long time which had elapsed since the state court conviction discretion and power was exercised to hear evidence on and to determine the other issues sought to be raised by petitioner in the case at bar. Memories had already become so dim that there was great danger the circumstances could no longer be reconstructed by evidence if petitioner were required to exhaust fully his state remedies. The ruling was based on authorities which hold that the federal district court has broad discretion to hear a habeas corpus petition even though state remedies have not been totally exhausted if exceptional circumstances exist which warrant a hearing on the merits to protect the rights of the prisoner and to do justice. Fay v. Noia, supra; Clarke v. Grimes (C.A. 5) 374 F.2d 550; Rhinehart v. State (C.A. 4) 344 F.2d 114; United States ex rel. Spero v. McKendrick (S.D. N.Y.) 266 F.Supp. 718. In this respect this case is the exception and not the rule. See Baines v. Swenson (C.A. 8) 384 F.2d 621; State v. Stidham, Mo., 415 S.W.2d 297.

On April 16-17, 1944, the mutilated bodies of two females were found in the Lake of the Ozarks. Both had been beheaded, and the right leg of one of the bodies had been removed in an effort to prevent identification. The bodies were subsequently removed to Columbia, Missouri, where adequate pathological services were available. The bodies remained unidentified for several weeks. Finally they were identified by the investigating officers as the wife and mother-in-law of petitioner.

On May 16, 1944, members of the Missouri State Highway Patrol went to the farm house of the petitioner. There they asked petitioner the whereabouts of his wife and mother-in-law. Petitioner suggested that they were away on a trip. Thereafter, petitioner voluntarily agreed to accompany the patrolmen to Columbia, for the purpose of identifying the bodies as those of his wife and mother-in-law. After petitioner had viewed the bodies in Columbia, he voluntarily remained with the highway patrolmen, who induced petitioner to accompany them to the Lake of the Ozarks area where the bodies were found. Then petitioner on request accompanied the officers to Jefferson City. This period of intermittent travel and questioning lasted from May 16 to May 20, during which time petitioner and the patrolmen spent two nights in a motel adjacent to the Lake. Finally petitioner was arrested and placed in the Cole County Jail at Jefferson City for one night. Up to the time of his arrest petitioner pretended to be assisting in the investigation to create an appearance of innocence and to avoid suspicion of guilt. This conduct was the basis of the trial strategy to offer no objection to the fruits of a warrantless search of petitioner's home and premises with written consent of petitioner.

Petitioner testified that he may have paid for his own food and lodging during the trip with the patrolmen because he had the funds to do so, but that he was under the impression during this period of time that he was in the custody of the...