Knowles v. Gladden

• Decision Date: 14 June 1967
• Docket Number: No. 21216.,21216.
• Citation: 378 F.2d 761
• Parties: Harry C. KNOWLES, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

378 F.2d 761 (1967)

Harry C. KNOWLES, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellee.

No. 21216.

United States Court of Appeals Ninth Circuit.

May 3, 1967.

Rehearing Denied June 14, 1967.

George L. Kirklin, Portland, Or., for appellant.

Robert Y. Thornton, Atty. Gen., Peter S. Herman, Asst. Atty. Gen., Salem, Or., for appellee.

Before JERTBERG and MERRILL, Circuit Judges, and MATHES, District Judge.

JERTBERG, Circuit Judge:

Appellant, a prisoner at the Oregon State Penitentiary, appeals from the denial of his petition for a writ of habeas corpus. Appellant was convicted and sentenced on his plea of guilty to second degree murder. After an evidentiary hearing, the district court found that the plea was voluntary and accordingly denied appellant's petition. We affirm.

The district court made lengthy findings of fact, which may be summarized as follows:

During October of 1954, appellant was incarcerated in the County Jail at Apalachicola, Florida. At the time he was forty-six years old, unable to read or write well, and had only a fourth or fifth grade education. On October 11, 1954, he was interviewed there by F.B.I. special agent Charles Carroll and questioned about the interstate transportation of a stolen pickup truck which had been owned by one Albert Stuart. Carroll advised appellant that he did not have to make any statements, that any statements he did make could be used against him, and that he had the right to consult an attorney. The interview lasted about one hour, and appellant denied any knowledge of the pickup truck or of Stuart's whereabouts.

On October 18, 1954, appellant was arrested by federal agents and taken before a United States Commissioner for preliminary hearing on the interstate motor vehicle theft charge. Appellant testified that he was first told of his right to counsel at this hearing, but that the Commissioner said that whether appellant had counsel at that time did not make any difference.

On October 20, 1954, appellant was again questioned by agent Carroll. Carroll drew up a statement, which appellant signed, relating solely to the motor vehicle theft charge, stating that appellant had been advised that he had a right to counsel and that the statement could be used against him. On October 29, 1954, Carroll again questioned appellant after advising him of his rights as before.

During October and the first half of November, 1954, while in federal custody, appellant became the prime suspect in the probable homicide of Stuart.

Appellant was indicted on the motor vehicle theft charge by a federal grand jury in Sacramento, California, on November 12, 1954. Appellant was transported to Sacramento on November 17, 1954, and arraigned in the federal district court there on the following day. At that time he was advised of his right to counsel, but he declined counsel, and his plea of guilty was accepted.

Later that same day, appellant was questioned by Investigators Casey and Coffey of the California Bureau of Criminal Identification and Investigation (CII) about the probable death of Stuart. But appellant made no incriminating statements. The purpose of the interrogation was to secure appellant's co-operation in submitting to a polygraph (lie detector) test. Investigator Coffey was an experienced polygraph operator and specialist. He sought to develop a rapport with appellant by assuming the role of the neutral seeker of truth. He told appellant "I am a completely neutral participant in this thing; my only function is to establish as nearly as possible the true facts of the situation * * *." He further stated that he was officially obligated to pass along to the people handling the investigation anything that appellant might provide him. Appellant was not advised of his right to counsel during this interrogation.

On November 19, 1954, appellant was again questioned extensively about Stuart's death. He was given the same advice, if any, concerning his rights as was given on the previous day. During the interrogation, Coffey administered a polygraph test. Appellant was asked a series of irrelevant questions interspersed with occasional references to the homicide. This procedure was used to establish a normal response and to put him at ease so that his reactions to important questions would be readily apparent. Appellant made no incriminating statements, but Coffey told him at the completion of the test that some of the answers were false.

On November 20, 1954, appellant was again interrogated for several hours but was given no advice as to his right to silence or counsel. He finally admitted killing Stuart. Coffey then told appellant that it would be much easier for appellant if he cooperated.

On November 22, 1954, appellant was to be sentenced on his conviction for interstate vehicle theft, but the sentencing was postponed until December 14, 1954, to allow further interrogation of appellant by CII investigators. That same day, without being advised of his rights, appellant was questioned by Coffey and Casey.

On November 24, 1954, Casey arranged with the federal probation officer for further extensions of appellant's sentencing in the event more time was needed by CII for investigation of the homicide.

On November 30, 1954, appellant was questioned at length without being given cautionary instructions. The Prosecuting Attorney of Yakima County, Washington, one Clark, was present at this examination because appellant believed that Yakima was where Stuart's death had occurred.

On December 1, 1954, appellant agreed to give Clark a written confession. Clark made no threats or promises to appellant but did warn him that he did not have to talk and that any statement he made could be used against him. Clark prepared the statement, making intentional errors and having appellant initial the corrections in order to show that appellant had read the statement. However, since he could not read, appellant merely followed Clark's instructions in marking the statement. Appellant was questioned further by Coffey after completing the statement.

On December 2, 1954, pursuant to a request from CII and Yakima County officials, an officer of the Oregon State Police filed for and received from the Oregon Circuit Court for Hood River County a writ of habeas corpus ad prosequendum, ostensibly to release appellant from federal custody to prosecute a larceny charge against him. Appellant was released under this writ on December 10, 1954, and transported to Oregon by Casey and officers of Hood River County. Appellant was questioned about details of the homicide, especially the location of Stuart's body, but was given no advice as to his rights.

On December 12, 1954, Stuart's body was exhumed near Shaniko, Oregon. During the interrogation at that time, appellant admitted killing Stuart at Shaniko. Appellant was not advised of his right to counsel or to remain silent. Appellant was then taken to The Dalles, Oregon, and introduced to one Heisler, the District Attorney of Wasco County, Oregon, as a "very cooperative" fellow. That night, appellant was questioned by members of the Oregon State Police, the CII, and the Wasco County Sheriff's and District Attorney's offices. Heisler prepared a typewritten statement, which appellant signed after initialing the corrections of several typographical errors. The statement contained a recitation that it was given voluntarily, without fear, threats, or promise of reward, and that appellant had been informed the statement could be used against him.

Appellant was never arraigned or taken before any court on the larceny charge for which the writ of habeas corpus ad prosequendum had been issued.

Appellant was returned to Sacramento on December 13, 1954, and appeared before the federal district court for sentencing the following day. However, the sentencing was further postponed at the request of the probation officer.

On December 15, 1954, the Wasco County Sheriff filed an information in the Justice Court of The Dalles charging appellant with second degree murder. That court issued a warrant for appellant's arrest. On December 17, 1954, a petition for writ of habeas corpus ad prosequendum was filed, granted, and the writ issued in the Circuit Court of Wasco County. Appellant was released pursuant to the writ on December 20, 1954, and turned over to Oregon authorities on condition that he be returned to federal custody on or before December 30, 1954.

Appellant was taken to The Dalles, arriving there December 21, 1954. During the trip, he was questioned about his travels with Stuart but was not advised of his rights. On December 22, 1954, Heisler arranged to have the case heard that morning by the Wasco County Circuit Court. He then had a conversation with appellant in the County Jail. But the district court specifically found that, during this conversation, contrary to appellant's testimony, Heisler "did not represent that if appellant would waive indictment and plead guilty to an information charging second degree murder, he (Heisler) would recommend an early parole" (emphasis added). After this conversation, appellant was taken directly to the Circuit Court even though he had not been arraigned in Justice Court on the information filed therein, nor afforded a preliminary hearing, nor indicted by the grand jury. The district court found that "this procedure presupposed that appellant would waive preliminary hearing and indictment."

Before the Circuit Court, appellant attempted to waive counsel and plead guilty, but the court refused to allow this and appointed a local attorney in The Dalles, one Van Vactor, as appellant's counsel.

After his appointment, Van Vactor consulted with appellant. Appellant mentioned the confessions but did not explain the circumstances surrounding them. Appellant did not mention the conversations that morning with Heisler. Van Vactor discussed the case with Heisler. However, at the evidentiary...