McCall v. Dutton

• Decision Date: 15 December 1988
• Docket Number: No. 88-5223,88-5223
• Citation: 863 F.2d 454
• Parties: Frank Andrew McCALL, Petitioner-Appellant, v. Michael DUTTON and W.J. Michael Cody, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 454

863 F.2d 454

Frank Andrew McCALL, Petitioner-Appellant, v. Michael DUTTON and W.J. Michael Cody, Respondents-Appellees.

No. 88-5223.

United States Court of Appeals Sixth Circuit.

Argued Oct. 13, 1988.

Decided Dec. 15, 1988.

W.P. Boone Dougherty (argued), Harwell & Nichols, Knoxville, Tenn., for Frank Andrew McCall, petitioner-appellant.

Bettye Springfield-Carter, Asst. Atty. Gen., (argued), W.J. Michael Cody, Atty. Gen., Jerry Smith, Asst. Atty. Gen., Nashville, Tenn., for Michael Dutton and W.J. Michael Cody, respondents-appellees.

Before KRUPANSKY and GUY, Circuit Judges, and MEREDITH, District Judge. ^*

KRUPANSKY, Circuit Judge.

The instant appeal reviews the denial of the petition of appellant Frank Andrew McCall (McCall) for a federal writ of habeas corpus under 28 U.S.C. Sec. 2254. McCall timely appealed the decision of the district court. McCall was convicted of first degree murder and possession of cocaine with intent to re-sell by a jury in the criminal court for Roane County, Tennessee. McCall received a life sentence with an additional 8-year sentence to run consecutively, subsequent to a trial on the murder and cocaine charges that commenced on August 30, 1983.

McCall charged upon appeal to the state appellate court that the trial court erred in admitting into evidence the statements he made to officers at the scene of his arrest and at the hospital subsequent to being placed into custody. The state appellate court initially decided that the issue was waived because of appellant's failure to provide a complete record of the hearing addressing his motions to suppress conducted before the trial court. However, the appellate court, upon reconsideration permitted the record to be supplemented, and ruled on the merits of appellant's motion. After the record had been supplemented, the state appellate court affirmed the lower court's refusal to suppress the controversial statements. Appellant then filed for permission to appeal to the Tennessee Supreme Court. That petition was denied on September 30, 1985.

The instant petition for a writ of habeas corpus was filed in federal court on March 27, 1986. On October 15, 1986, the district court adopted the report of the magistrate to whom the case had been referred and ordered the state to afford the petitioner an evidentiary hearing on the issue of the voluntariness of his oral statements, or a new trial, because it concluded that the suppression hearing that had been conducted at the state trial level had not satisfied constitutional standards.

On March 9-10, 1987, the Tennessee court system afforded appellant a new hearing. In an order entered on May 5, 1987, the criminal court of Roane County concluded that appellant's statements were voluntary.

On July 10, 1987, the petitioner filed a brief and memorandum in the federal district court and again requested that the petition for habeas corpus be granted, contending, inter alia, that, despite the state court's rulings, the oral statements were involuntary and should have been suppressed. On September 9, 1987, the magistrate found that a number of the statements used against petitioner at trial had been involuntary. The magistrate requested additional briefs to determine the prejudicial effect, if any, of the statements that he had characterized as involuntary. On October 28, 1987, the magistrate presented his report and recommendation wherein he determined that the admission of the involuntary statements constituted clear error and recommended that the petition for the writ of habeas corpus be granted.

After hearing the objections of the State of Tennessee to the magistrate's report, the district court, on December 8, 1987, issued a memorandum opinion and order which rejected the magistrate's report. The district court denied McCall's habeas corpus petition, subsequent to which McCall filed this timely instant appeal.

Petitioner, a 35-year old male, had received a degree in education from the University of Tennessee. He had taught school for a year and attended graduate school, seeking a degree in psychology. On March 15, 1983, McCall was involved in a confrontation with Roane County Deputy Sheriff Dennis Armes (Armes). As a result of the confrontation, Armes was shot and killed. During the encounter, Armes fired five shots from his weapon, striking McCall in the left lung, groin, chest, and on the side of the head. Several hours later the appellant was apprehended in another county at a location called Frazier's Grocery.

Before arriving at Frazier's Grocery, McCall had driven his automobile to the store/residence of Sarah Carter in Meigs County, Tennessee several miles from the scene of the shooting. McCall had "blood all over his face and head," according to Carter. He demanded that he be admitted into her house, which Carter refused. After she refused, McCall drove several miles on a winding road, without incident, to the house of 76-year old Joseph Gunter in McMinn County, Tennessee. Gunter assisted McCall into his (Gunter's) house and permitted McCall to make several phone calls. However, when McCall was unable to establish telephone contact with the individuals that he phoned, he used a pair of scissors and proceeded to threaten Gunter "to drive me to Etowah or I'm going to stab you in the stomach with these scissors." Gunter attempted to retrieve the scissors from McCall who rebuffed the effort, whereupon Gunter, at gunpoint, forced McCall to drop the scissors. McCall then fell to the floor, apparently unconscious.

Gunter left the scene to summon assistance from a nearby resident. Receiving no response from his neighbor, he returned to his mobile home and found McCall on the ground outside Gunter's mobile home. Gunter returned to the mobile home and dialed the police telephone number. As Gunter was dialing, McCall burst into the mobile home and forcibly took the phone from Gunter and terminated the call. At that point, Gunter's son (Harold Gunter) arrived. At McCall's request, Harold Gunter called a woman in Etowah, Tennessee who requested Gunter to determine the name and identity of the individual who requested him (Gunter) to place the call. For the first time, McCall disclosed his name and conversed with the recipient of the call in a rough manner. The phone thereupon went dead. McCall remained on the floor of the mobile home, where he had fallen, until police assistance arrived.

Officers Steve Hixon (Hixon), Jon French (French), Jesse Brooks (Brooks), Paul Jarnigan (Jarnigan), David Haggard (Haggard), Darrell Sirmans (Sirmans), Bryan Farmer (Farmer), and Sheriff R.L. McKenzie (McKenzie), arrived at the scene shortly after the Gunters requested police assistance. Several of these officers removed McCall from the mobile home and placed him on the ground in front of Frazier's Grocery, which was adjacent to the mobile home. He was searched and handcuffed. During this time, McCall was complaining of pain. Four or five officers who circled McCall interrogated him. A number of the officers had their guns drawn. Officer Brooks testified that it was standard procedure to have guns unholstered and pointed at a dangerous felony suspect, especially under the circumstances in the instant case. However, Officer Sirmans testified that, although revolvers were unholstered, they were not pointed directly at McCall. Similarly, Officer Farmer testified that revolvers, although unholstered, were not pointed directly at McCall.

Before any interrogation had been undertaken, Officer Hixon advised McCall of his Miranda rights. When queried if he understood those rights, McCall replied, "yes."

Brooks testified that McCall "passed out and came to three or four times," but may have been closing his eyes to avoid conversation. Similarly, Officer Jarnigan described McCall as "trying to go to sleep" and "closing his eyes." However, Officer French testified that "he [McCall] was coherent." In the suppression hearing, Officer Farmer testified that defendant was conscious, answering questions, and his eyes were open. Farmer described defendant as "conscious at all times, it appeared."

The circumstances surrounding the confession notwithstanding, it is uncontroverted that McCall consistently and emphatically stated, in response to police interrogation, that a man named Dotson had shot the police officer. McCall refused to admit that he had shot Armes. He (McCall) stated that there was a gun in a ditch near the shooting scene. Subsequent to describing the gun as a silver-nickel pistol, McCall also claimed that the money that had been found on his person was his own and not stolen.

Within fifteen minutes after the arrival of the law enforcement authorities, an ambulance arrived at Frazier's Grocery and conveyed McCall to Sweetwater Hospital. Officer Farmer accompanied McCall on the trip. Farmer continued to question McCall concerning the identity of the individuals who had accompanied him and the whereabouts of the gun that had been used at the shootout. McCall persisted in denying the actual shooting of Officer Armes, stating that Dotson had shot Armes and that the gun had been thrown into an embankment at the shooting scene. Farmer further testified that at the hospital McCall changed his story by stating that he had thrown the gun from the vehicle along the highway while fleeing the scene of the shootout.

McCall's hospital records disclosed that he was lethargic and his condition was described as "serious" upon arrival. Additionally, it was discovered that McCall had ingested cocaine, a "quaalude," and a beer at some point prior to the time of his admission.

Several days after McCall had been admitted to Sweetwater Hospital, he was transferred to the University of Tennessee Medical Center. At the University Hospital, McCall made oral statements to Officer Hixon that tracked those he had made earlier at Frazier's Grocery and during the trip to Sweetwater Hospital. However, the district court...