McLallen v. Wyrick, 77-0804-CV-W-5-R.

• Decision Date: 30 June 1980
• Docket Number: No. 77-0804-CV-W-5-R.,77-0804-CV-W-5-R.
• Parties: Edward McLALLEN, Petitioner, v. Donald W. WYRICK, Respondent.
• Court: U.S. District Court — Western District of Missouri

494 F. Supp. 138

Edward McLALLEN, Petitioner, v. Donald W. WYRICK, Respondent.

No. 77-0804-CV-W-5-R.

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

June 30, 1980.

Edward McLallen, pro se, and Ronald Hall, Asst. Federal Public Defender, Kansas City, Mo., for petitioner.

Michael Finkelstein, Asst. Atty. Gen., State of Missouri, Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

SCOTT O. WRIGHT, District Judge.

Petitioner, who is currently confined at the Missouri State Penitentiary, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1976). Leave to proceed in forma pauperis was granted on November 16, 1977, and the respondent was directed to show cause why the writ should not issue. A response was filed December 21, 1977. A pro se Traverse was filed by petitioner on January 6, 1978. On April 20, 1978, the Federal Public Defender was appointed to represent petitioner and counsel for the parties were directed to determine a joint schedule for filing of briefs in this action. Stipulations were filed by the parties on September 25, 1979, and October 3, 1979. A brief was submitted by petitioner's appointed counsel on October 3, 1979. A responding brief was filed by the respondent on October 25, 1979.

The petitioner raised the following five general claims: (1) that an involuntary confession given by petitioner to the prosecutor and the sheriff of Benton County, Missouri, on January 17, 1972, was improperly admitted into evidence at his trial; (2) that petitioner received ineffective assistance of counsel at his trial in violation of the sixth amendment to the United States Constitution; (3) that petitioner was denied due process because the trial court failed sua sponte to instruct the jury on two matters; (4) that petitioner was denied effective assistance of counsel at his hearing pursuant to Missouri Supreme Court Rule 27.26; and (5) that petitioner was denied effective assistance of counsel in the appeal of his motion pursuant to Rule 27.26. This Court will examine each of petitioner's five claims individually.

I. VOLUNTARINESS OF CONFESSION

In his first claim petitioner asserts that a statement he made on January 17, 1972, to the sheriff and prosecutor of Benton County, Missouri, was involuntary and should have been excluded from his trial. Petitioner asserts the following three grounds as the basis for this claim: (1) that the prosecutor's continuous questioning contained implied promises that he would be lenient on petitioner if petitioner made a statement and implied threats that he would be harsher on petitioner if petitioner refused to make a statement; (2) that petitioner was sick at the time he confessed; and (3) that petitioner was asked to sign a written statement when he did not have access to glasses he needed for reading. The confession in question was given during a session at the Sedalia, Missouri Police Department, when petitioner was questioned by Sheriff Breshears and Prosecutor Drake, both of Benton County, Missouri.

The Circuit Court of Benton County, Missouri, conducted a hearing on April 17, 1972, to determine the voluntariness of the statement given January 17, 1972. Sheriff Breshears was the only person to testify at the hearing concerning the voluntariness of the statement. He stated that the prosecutor orally advised petitioner of his Miranda rights and that petitioner indicated he understood these rights before waiving them and answering questions. Petitioner summarized the crucial testimony of the sheriff as follows:

At least twice, if not more, the Prosecutor told petitioner that he would be better off to provide a statement, (sic) than he would if he refused to provide one (Tr. 34). The Prosecutor stated it would be best for him to give a statement (Tr. 34). Following these representations, McLallen signed a written waiver of his Fifth and Sixth Amendment rights and gave the Prosecutor an oral confession. Drake typed up the statement (Tr. 34), but McLallen, after making corrections on the type statement (Tr. 28), refused to sign it (Tr. 29). Petitioner's Brief at 25.

The prosecutor tried to introduce a written statement allegedly made by petitioner on January 17, 1972, that petitioner refused to sign. At the close of the hearing held April 17, 1972, the judge found that defendant had been advised of his rights and had voluntarily made the oral statements with knowledge of his rights. Respondent's Ex. D at 38. The Court sustained petitioner's objection to the alleged written statement because it was not signed by the defendant. Respondent's Ex. D at 39.

In his direct appeal petitioner raised the claim that his statement of January 17, 1972, to Sheriff Breshears and Prosecutor Drake was not voluntarily made and should have been excluded. State v. McLallen, 522 S.W.2d 1, 3-4 (Mo.App.1975). Quoting from the case, State v. Hester, 425 S.W.2d 110, 114 (Mo.1968), the Missouri Supreme Court noted that "when there is no substantial evidence of coercion or duress or of promises of leniency or reward, a confession must be deemed voluntary." 522 S.W.2d at 3. The Missouri Supreme Court found that the statement by the prosecutor was "not capable of conveying either promise or threat." 522 S.W.2d at 4. That Court wrote, "Since the statement by the prosecutor here did not constitute either a threat or a promise, such statement did not constitute substantial evidence of either so as to render the confession involuntary." 522 S.W.2d at 4. In addition, the Missouri Supreme Court found that no physical infirmity "interfered with the defendant knowingly and intelligently waiving his right to remain silent." 522 S.W.2d at 4. Because petitioner raised the claim of the voluntariness of his confession in his direct appeal, he has exhausted state remedies as required under 28 U.S.C. § 2254(b) and (c).

The test set forth by the United States Supreme Court to determine whether a confession is voluntary

is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was "free and voluntary; that is, it must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-187, 42 L.Ed. 568 (1897).

A state defendant is denied due process of law under the fourteenth amendment if his conviction is founded in whole or in part upon an involuntary confession that has been introduced in evidence. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653 (1964); Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961). This is true even though ample evidence exists aside from the confession to support the conviction. Jackson v. Deno, 378 U.S. 368, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964); Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029 (1945). The United States Supreme Court has noted that a "complex of values," Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960), supports the exclusion of confessions found to be involuntary. The Court in Jackson v. Deno, 378 U.S. at 385-86, 84 S.Ct. at 1785, summarized some of these values in the following passage:

It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the "strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will," Blackburn v. Alabama, 361 U.S. 199, 206-207 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960), and because of the "deep-rooted feeling that the police must obey the law while enforcing the law; that in the end, life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Spano v. New York, 360 U.S. 315, 320-321, 79 S.Ct. 1202, 1205-1206, 3 L.Ed.2d 1265 (1959).

Petitioner seeks habeas corpus relief in this action pursuant to 28 U.S.C. § 2254. If a decision has been made following a factual hearing conducted by a state court of competent jurisdiction, and if that decision is "evidenced by a written finding, written opinion, or other reliable and adequate written indicia," the determination is presumed to be correct unless it appears that one of the eight provisions set out in § 2254(d) exists. As noted earlier, a hearing was conducted by the Circuit Court of Benton County, Missouri, on April 17, 1972, prior to trial. Respondent's Ex. D at 24-39. At the close of the hearing the Court made an oral finding "that defendant was advised of his Constitutional Rights, and that he made the oral statements with knowledge of his rights, and made them voluntarily." Respondent's Ex. D at 38. In addition, the Court made the following entry in the records of the case:

Now at this time Defendant appears in person and with his attorney. Hearing heard on voluntary nature of written and oral statements made by defendant. (sic). The Court finds that defendant was advised of his Constitutional Rights and that he made the oral statements with knowledge of his rights and voluntarily.

Objection sustained as to alleged written statement because not made by defendant.

After carefully reviewing the transcript of the hearing held by the Circuit Court of Benton County, as well as the briefs filed by both parties, this Court concludes that petitioner did not receive a full, fair, and adequate hearing in the proceeding before the Circuit Court of Benton County on April 17, 1972. This Court feels that the material facts in issue were not...