Hunter v. Swenson

• Decision Date: 21 May 1971
• Docket Number: No. 20601.,20601.
• Citation: 442 F.2d 625
• Parties: Bert Leroy HUNTER, Appellant, v. Harold R. SWENSON, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

442 F.2d 625 (1971)

Bert Leroy HUNTER, Appellant, v. Harold R. SWENSON, Warden, Appellee.

No. 20601.

United States Court of Appeals, Eighth Circuit.

April 26, 1971.

As Amended on Denial of Rehearing May 21, 1971.

Bert Leroy Hunter, filed brief pro se.

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

Before VOGEL and ROSS, Circuit Judges, and STEPHENSON, Chief District Judge.

ROSS, Circuit Judge.

Hunter brought this action for a writ of habeas corpus against Swenson, the warden of the Missouri State Penitentiary. The trial court entered an order denying the petition and refusing to grant an evidentiary hearing. We reverse with directions to the trial court to hold an evidentiary hearing.

Hunter was charged with first degree murder in an amended information filed in the Circuit Court of Andrew County, Missouri on March 10, 1969. He pleaded not guilty and was convicted after a trial to a jury on May 1, 1969. After his motion for new trial was overruled, he was sentenced to life imprisonment. On appeal, the Missouri Supreme Court affirmed the conviction. State v. Hunter, 456 S.W.2d 314 (Mo.1969).

At Hunter's trial there was no direct evidence linking him to the killing except his confession. The only issue briefed and argued before the Supreme Court of Missouri was the admissibility of the confession. At his trial and on appeal, Hunter claimed that it was not voluntary in that it was induced by repeated and protracted custodial interrogation without counsel and by false promises of the police that he would receive help and a reduced charge for his cooperation. Hunter also claimed the confession should not have been received in evidence because his constitutional right to counsel was not knowingly and intelligently waived.

The murder occurred on June 16, 1968. On June 18, 1968, Hunter was interrogated by Sgt. Rhoades of the Missouri Highway Patrol and released. He was again interrogated later the same day by Sgt. Rhoades and Sgt. Shirley, by the prosecutor, Mr. Lance, and by other law enforcement officials. He was interrogated further on June 19 or 20 by Sgt. Shirley. On July 15, Hunter was again questioned while in custody of the police in Atchison, Kansas by Sgt. Shirley and another trooper. The interrogation was continued on July 16 and at that time there was some discussion initiated by Hunter about making a deal for a lesser charge and getting the Kansas charges dropped in return for Hunter's cooperation. Sgt. Shirley agreed to convey this suggestion to Mr. Lance, the prosecutor. He also told Hunter that another individual made a partial statement about the murder implicating Hunter. Hunter made oral statements at the time indicating some knowledge of the murder but denied having been at the murder scene and declined to make a written statement.

On August 5, 1968, Sgt. Shirley and Sgt. Rhoades, together with a court reporter, Mrs. Sowards, visited Hunter in jail in Atchison, Kansas. This contact was the result of a message to Sgt. Shirley from a friend of Hunter conveying Hunter's request to talk to Sgt. Shirley again. At that time, Hunter gave a confession to Sgt. Shirley and Sgt. Rhoades which was transcribed by Mrs. Sowards and signed and initialed by Hunter. Prior to signing the confession, Hunter was formally advised of his rights by Sgt. Rhoades from a card which he carried with the standard questions and warnings printed thereon.

These facts are not seriously in dispute. The disputed point is whether or not on August 5, 1968, immediately prior to the confession of Hunter, Sgt. Shirley promised or implied that the prosecutor, Mr. Lance, was willing to consider a reduced charge in return for Hunter's cooperation in the form of the signed confession.

The Supreme Court of Missouri commented on that question as follows:

"There is the further significant fact, which we find from the evidence, that there was no discussion of the so-called `deal\' on the 5th of August when Hunter was finally ready to give his confession. If in fact there had been such an understanding Hunter, who in his testimony showed that he knew there was such a thing as a written guarantee of immunity, would doubtless have insisted upon at least an oral confirmation of the deal before signing away his rights and confessing his crime."

State v. Hunter, supra, 456 S.W.2d at 321.

The United States District Court in its order denying the writ of habeas corpus made a similar finding.¹

Prior to Hunter's original trial, his attorney filed a motion to suppress the confession. The state trial court (Judge Yeaman) on March 11, 1969 held a hearing on that motion at which hearing Hunter, Sgt. Shirley, and Sgt. Rhoades testified. The motion to suppress was overruled.

At the trial of the murder case in state circuit court, the Court (Judge Schoenlaub) held a hearing on the voluntariness of the confession outside the hearing of the jury. During this hearing Hunter and Mrs. Sowards testified, and Sgt. Shirley's testimony given at the hearing on the motion to suppress was received in evidence by stipulation of the parties. Sgt. Rhoades did not testify at this hearing and his earlier testimony was not received in evidence at this time.

After the Court had determined that the confession was voluntary and could be received in evidence, the jury returned and the trial continued.²

Sgt. Shirley then testified concerning the circumstances surrounding the confession. Mrs. Sowards also testified to the effect that on August 5, 1968 she was not in the interrogation room at all times, but she did not hear either Sgt. Rhoades or Sgt. Shirley make any promise or convey any message from the prosecuting attorney, Mr. Lance, to Hunter relating to possible reduction of the charges. Again Sgt. Rhoades did not testify and his testimony from the hearing on the motion to suppress was not received in evidence.

The testimony of Sgt. Rhoades which was not presented except at the March 11, 1969 hearing on the motion to suppress was significant in two ways: First, Sgt. Rhoades testified he had not been present when Sgt. Shirley interrogated Hunter on July 15 and 16, so it is obvious that if he heard any communication from Sgt. Shirley to Hunter purporting to convey a message from the prosecutor, it had to be on August 5, 1968. Secondly, his testimony is clear that on August 5, 1968 he overheard Sgt. Shirley tell Hunter immediately prior to obtaining Hunter's confession something "similar to `Mr. Lance said it's possible.'" Rhoades also testified that he thought Sgt. Shirley meant by this that "if Bert Hunter were to give a statement where he would be testifying against Carl Paxton as to Mr. Lyle's death, then there might be some leniency shown to Bert Hunter by the prosecuting attorney."³

A study of the transcript of the testmony at the March 11, 1969 hearing and the testimony at the trial convinces this Court that the conclusions reached by the Supreme Court of Missouri on the appeal and by the United States District Court in this habeas corpus proceedings were based, at least in part, upon an incorrect determination that the interrogation of Hunter on August 5, 1968 prior to his confession, did not include any discussion of a possible "deal" on the requested reduction of the charge to be filed. Whether a correct determination of this fact would have changed the decision reached by either court is not known, but Hunter claims that he is entitled to have this decision made on the basis of a correct factual determination after careful scrutiny of the state court record as a whole and after an evidentiary hearing to clarify the facts in dispute; especially since both the Supreme Court of Missouri and the Federal District Court for the Western District of Missouri placed some emphasis on the timing of the conversations relating to the possibility of reduced charges.

I. EXHAUSTION OF STATE REMEDIES

The contentions raised by Hunter in this habeas corpus action are substantially the same as those raised on his appeal to the Supreme Court of Missouri. Therefore, for the purpose of this action, Hunter has exhausted his state remedies even though he has not complied with state post conviction procedures under Missouri Supreme Court Rule 27.26, V.A.M.R. This Court held in Edwards v. Swenson, 429 F.2d 1291, 1293 (8th Cir. 1970) that a Missouri prisoner need not pursue his post conviction remedy under Rule 27.26 where the merits of his contentions had already been determined by the Missouri Supreme Court on direct appeal. See also Connors v. State, 422 F.2d 122, 125 (8th Cir.), cert. denied, 398 U.S. 954, 90 S.Ct. 1881, 26 L.Ed.2d 297 (1970); Kennedy v. Sigler, 397 F.2d 556, 559 (8th Cir. 1968). Accord, United States ex rel. Adams v. Pate, 418 F.2d 815, 817 (7th Cir. 1969); Smith v. Peyton, 408 F.2d 1009, 1010 (4th Cir. 1968); Whippler v. Balkcom, 342 F.2d 388, 390 (5th Cir. 1965).

II. ALLEGATIONS CONCERNING ADMISSIBILITY OF THE CONFESSION

The Supreme Court of Missouri in State v. Hunter, supra, 456 S.W.2d at 316, stated the law of the State of Missouri concerning the admissibility of confessions in that state as follows:

"Confessions induced by the influence of hope of leniency, State v. Ball, Mo.Sup., 262 S.W. 1043, hope of clemency, State v. Hart, 292 Mo. 74, 237 S.W. 473, or hope of mitigation of punishment for the crime charged, or of `worldly advantage,\' State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, are not voluntary and are not admissible in evidence."

In so stating the law, the Missouri Supreme Court did not cite State v. White, 316 Mo. 576, 292 S.W. 411 (1927), a case which presents a fact situation very similar to that of this case. White, while in jail and charged with murder in the first degree, confessed after the prosecuting attorney had promised him he would recommend minimum punishment and had told him that a co-defendant had confessed. The Court stated:

"By all the

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