Johnson v. Trigg, IP 91-143-C.

• Decision Date: 15 March 1993
• Docket Number: No. IP 91-143-C.,IP 91-143-C.
• Parties: Norman J. JOHNSON, Petitioner, v. Clarence TRIGG, Superintendent, Respondent.
• Court: U.S. District Court — Southern District of Indiana

839 F. Supp. 571

Norman J. JOHNSON, Petitioner, v. Clarence TRIGG, Superintendent, Respondent.

No. IP 91-143-C.

United States District Court, S.D. Indiana, Indianapolis Division.

March 15, 1993.

Norman J. Johnson, pro se.

Thomas D. Quigley, Indianapolis, IN, for respondent.

MEMORANDUM

BARKER, District Judge.

This cause comes before the Court on Petitioner's Petition for Writ of Habeas Corpus, Respondent's Return to Order to Show Cause and accompanying Memorandum, Petitioner's Traverse, and Respondent's Reply to Traverse. Respondent has provided the Court with the transcript of state court proceedings. Having considered the foregoing, and being duly advised, the Court now finds that an evidentiary hearing is not required and that the Petition for Writ of Habeas Corpus must be GRANTED. Fed.R. § 2254 Cases 8.

BACKGROUND

The undisputed facts are as follows. On October 31, 1981, Petitioner Norman J. Johnson was involved in a series of incidents far more serious than the typical pranks in which a 14-year old might engage on Halloween. He was a participant in two armed robberies. The first occurred about 8:30 p.m. Petitioner and Sean McKay kicked in the back door of Seamon's Grocery Store and robbed the owners at gunpoint. Roughly two and one-half hours later, Petitioner and Sean McKay robbed the Zephyr Gas Station. The station attendant was shot in the abdomen by one of the boys.

On November 2, 1981, Sean McKay gave a statement to the police. He named Petitioner as his accomplice and the gunman in the Zephyr robbery. A warrant for Petitioner's arrest issued November 3, 1981.

On the same day, a warrant for the arrest of Petitioner's mother was issued under the following circumstances:

Sometime in May of 1981, Petitioner was believed to have committed a juvenile offense. Prior to the filing of a delinquency petition in juvenile court, a juvenile probation officer meets with the juvenile and his parents to undertake what is called a pre-petition inquiry. A pre-petition inquiry is a prerequisite to the filing of a petition against the juvenile. Mr. Bernard Burns was the juvenile probation officer assigned to conduct Petitioner's pre-petition inquiry. Sometime prior to May 21, 1981, Mr. Burns saw Petitioner's mother in the parking lot of a local junior high school. Mr. Burns mentioned the need for a meeting with her and Petitioner. Petitioner's mother informed Mr. Burns that she could not bring her son in because he did not live at home and she did not know how to locate him. Mr. Burns told her to bring him in "at her earliest convenience" and "as soon as she could." (R. at 399). Mr. Burns did not give her any deadline or time frame within which to comply. (Testimony of B. Burns at R. 392-400.)

On November 3, 1981, the police were looking for Petitioner as a suspect in the Zephyr Gas Station robbery. The police went before the juvenile court referee seeking a warrant for Petitioner's arrest. Mr. Burns was present and related to the Court his previous discussion with Petitioner's mother. A bench warrant for contempt of court was issued for Petitioner's mother. A warrant was also issued for Petitioner's arrest. (R. at 395-96, 399).

At no time between May, 1981, and November 3, 1981, was Petitioner within his mother's physical control such that she could have brought him in to meet with Mr. Burns. (R. at 373-77).

At about 9:00 p.m. on November 3, 1981, Petitioner came to the police station with his uncle because he had heard the police were looking for him. He was arrested. The uncle left the police station and went to pick up Petitioner's mother. Petitioner's mother went to the police station with the understanding that the police had requested for her to come down to the station and be present so that Petitioner could be questioned. When Petitioner's mother arrived, she was arrested in front of Petitioner by Officer Scott Seliger. (R. at 177). She began crying, and she asked Officer Seliger if she could be released on her own recognizance or have a bond set because she was sick. (R. at 180, 329). Petitioner's mother had just been in the hospital for two weeks, where she had undergone major surgery. She had been diagnosed with cancer and had been given six months to a year to live. (R. at 329-30). Officer Seliger responded that it was too late at night and that she was going to spend the night in jail. (R. at 175-76). She did not sleep at all that night at the jail.

The next morning, just after eight o'clock on November 4, Petitioner and his mother were brought back to the police station. They were given about 15 to 20 minutes alone to talk. Both Petitioner and his mother cried during their talk. Petitioner's mother told Petitioner she did not want to go back to jail. Detective Kevin Mays then came in the room to take a statement from Petitioner regarding the Zephyr robbery. Petitioner waived his Miranda rights. Detective Mays and Petitioner talked informally for several minutes so that Detective Mays could get a handle on the situation and would know what questions to ask during the formal statement. A police department typist was then procured to take the statement. A statement was taken in which Petitioner implicated himself in the robbery of the Zephyr Gas Station and in the shooting of the attendant. (R. at 140-42).

As the last question of the statement, Detective Mays asked Petitioner if he had been threatened or promised anything in exchange for giving the statement. Petitioner answered "yes." Petitioner's mother also said "yes." Detective Mays immediately stopped the statement and asked "what is going on here?" (R. at 201, 309). Petitioner responded that the other policeman had promised them that if he gave a statement his mother would be released from jail. (R. at 201). Detective Mays brought Officer Seliger into the room. A phone call was made by Officer Seliger to the juvenile center regarding Petitioner's mother's release. Following the call, and further discussion, the question was asked a second time and this time Petitioner answered "no." Only the answer "no" was typed on the statement. Petitioner then signed it. (R. at 142-45, 151).

A statement regarding the Seamon's robbery was then taken from Petitioner later in the morning. After giving the second statement, Petitioner's mother was taken home by Officer Seliger and Detective Mays. (R. at 102, 309). An order releasing her from custody was signed by the juvenile court referee later that day. The order noted that Petitioner had given a statement to police. (See copy attached). Nothing further ever came of the contempt of court charge for which Petitioner's mother was jailed. (R. at 340).

Petitioner was waived into adult court by order of the Vigo County Juvenile Court. Petitioner filed a motion to suppress his Zephyr robbery statement in the Zephyr robbery case. Though the trial court noted that it was "tight" and "pretty tough," (R. at 213-14) the judge decided to "let the jury decide whether or not there was coersion (sic)." Although he "wouldn't have been the least bit surprised if they'd overrule me," (R. at 219) he denied the motion to suppress.

Petitioner objected at trial to the admission of the statement. On this occasion the trial judge stated a different reason, overruling the objection based on his "assumption ... that if Petitioner turned himself in, he was turning himself in to give a statement or plead guilty or whatever, and the coercion argument is raised after the fact." (R. at 325). The statement came in, Petitioner was convicted, and the trial judge sentenced him to 38 years.

Petitioner appealed directly to the Indiana Supreme Court. The only issue presented was the voluntariness of Petitioner's statement. The judgment of the trial court was unanimously affirmed. Petitioner now asks this Court for a Writ of Habeas Corpus. Petitioner challenges only the voluntariness of his statement.

DISCUSSION

A federal habeas corpus court is obligated to give de novo consideration to the issue of whether a Petitioner's confession was voluntary. Miller v. Fenton, 474 U.S. 104, 110-112, 106 S.Ct. 445, 449-451, 88 L.Ed.2d 405 (1985). The state court's conclusion may be given weight in the habeas court's determination, but it is clear that an independent decision based on a "study of the entire record" must be made. Id. at 111-12, 106 S.Ct. at 450-451. Properly derived state court factual findings must, however, be absolutely respected. 28 U.S.C.A. § 2254(d) (West 1977). Where no express findings of fact are made by the state courts, § 2254(d) does not come into play. Cooper v. Scroggy, 845 F.2d 1385, 1392 (6th Cir.1988). The habeas court is not to presume that certain facts were found simply because the state courts concluded that the confession was voluntary. United States ex rel. Cole v. Lane, 793 F.2d 155, 157 (7th Cir.1986). No findings of fact were made by the state trial court. The Supreme Court's exposition of the facts is a reconstruction derived from the record by reasoning back from the trial court's conclusion of voluntariness. Johnson v. State, 513 N.E.2d 650, 652 (Ind.1987). This is, of course, the very process questioned by our Court of appeals in United States ex rel. Cole v. Lane, supra. This Court will therefore consider all undisputed facts contained in the record in determining if Petitioner's confession was given voluntarily. Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945).

The Court is to make its determination upon an examination of the "totality of circumstances" surrounding the giving of the confession. Woods v. Clusen, 794 F.2d 293, 297 (7th Cir.1986). And "the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether defendant's will was in fact overborne." Miller,...