Nelson v. Fulcomer, P-8315

• Decision Date: 17 August 1990
• Docket Number: P-8315,No. 88-3828,88-3828
• Parties: Bruce NELSON,v. Thomas A. FULCOMER, et al. Appeal of Bruce NELSON.
• Court: U.S. Court of Appeals — Third Circuit

Page 928

911 F.2d 928

59 USLW 2183

Bruce NELSON, P-8315 v. Thomas A. FULCOMER, et al. Appeal of Bruce NELSON.

No. 88-3828.

United States Court of Appeals Third Circuit.

Argued Jan. 30, 1990.

Decided Aug. 17, 1990.

George E. Schumacher, Federal Public Defender, Thomas S. White (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.

Robert E. Colville, Dist. Atty., Matthew L. Witherel (argued), Asst. Dist. Atty., Pittsburgh, Pa., for appellee.

Before STAPLETON, and MANSMANN, Circuit Judges and KOSIK, District Judge ^*.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioner Bruce Nelson was convicted in Pennsylvania state court of rape and murder. In his habeas corpus petition, Nelson contends that the trial court impermissibly admitted into evidence his inculpatory response to a police-engineered confrontation with his alleged partner in crime, Terrence Moore. The district court dismissed Nelson's petition, holding that the behavior of the police did not violate the prophylactic rules set out in the Supreme Court's Fifth and Sixth Amendment jurisprudence and that Nelson's remark was voluntary and thus admissible. We cannot discern from the state and district court record certain facts we deem critical to resolving Nelson's constitutional claims. Accordingly, we will reverse the district court's decision and remand for additional fact-finding consistent with this opinion.

I.

In response to questioning by Pennsylvania homicide detectives, Terrence Moore confessed to participating in the rape and murder of Corrine Donovan. In his confession, Moore alleged that Bruce Nelson, the petitioner, initiated both crimes. The detectives then decided to confront Nelson with Moore's confession. That confrontation is the focus of this case. The most comprehensive findings of fact with respect to that confrontation are found in the state trial court's post-trial opinion On November 27, 1981, Moore was interviewed by various police officers concerning the rape, robbery, and murder of the victim. After a period of time, Moore admitted his involvement in the crimes and implicated the defendant [Nelson]. The defendant, who was in the Allegheny County jail on other charges, was transported to the Public Safety Building for questioning on these charges. Prior to questioning, the defendant was given his Miranda warning and executed a written waiver of his right to counsel. Both the defendant and the codefendant were questioned by the police officers separately. However, the defendant expressed a desire to remain silent. After Moore confessed and implicated the defendant in the crimes, the police officers asked Moore to go into the room alone where the defendant was located and to tell him (the defendant) what he had done. During the confrontation between the defendant and Moore the following exchange occurred:

Def: "How much did you tell them?"

Moore: "I told it all."

The defendant then asked that Moore be removed from the room. Thereafter, Moore informed the police about what the defendant had said.

Appendix for Appellant ("App.") at 619. Shortly after this confrontation, Nelson was arrested for the rape and murder of Corrine Donovan.

At trial, virtually all of the evidence offered against Nelson was supplied by Moore, who gave the following testimony. Nelson and Moore stole a van and drove to a parking garage in the hopes of committing a theft. When Corrine Donovan walked into the garage, Nelson accosted her and forced her back to the van. Nelson then raped Donovan and encouraged Moore to do the same. Moore refused at first but then followed suit. After Moore finished, Nelson climbed on top of Donovan again. When Moore next looked over, Nelson had a knife in his hand and was strangling Donovan with a piece of cloth. After Nelson stopped choking Donovan, the two left her body on the floor of the garage and fled. Moore abandoned the stolen van the following morning.

According to expert testimony at trial, Moore's fingerprints were found on Donovan's purse and on her parking garage ticket. Forensic examination of the victim revealed saliva on her breast and bra that was consistent with Moore's blood type. Saliva on a cigarette butt found at the crime scene was also consistent with Moore's blood type, and hairs found in several different places on the victim and her garments matched Moore's type of hair. Nelson's fingerprints were not found at the scene and all of the saliva and hair samples found on the victim were inconsistent with Nelson's characteristics.

At the conclusion of the bench trial, the judge found Nelson guilty of the charges against him. Nelson received a life sentence for the murder. For the rape, Nelson was sentenced to ten to twenty years in prison, to run concurrently with the life sentence.

In its post-trial motions opinion, the trial court expressly rejected Nelson's claim that the Constitution compelled the suppression of his response to the confrontation with Moore. Though the court did not articulate the precise nature of Nelson's challenge, it highlighted that Nelson had not been charged or arrested at the time of the questioning and that his inculpatory statement "was not in response to any question posed by the police or Moore." App. at 620. In light of those facts, the state court held that the admission of Nelson's statement violated neither the United States nor the Pennsylvania Constitution.

The opinion of Pennsylvania's Superior Court sounded a similar theme:

No constitutional rights of the appellant were violated when the appellant volunteered the question to Moore: "How much did you tell them." A statement which is spontaneously volunteered is admissible notwithstanding a prior assertion of constitutional rights. The Commonwealth has conceded that the police sought to confront the appellant with Moore's confession. However, there is no prohibition against the police confronting a suspect with incriminating evidence and doing so does not necessarily render his statement involuntary.

App. at 679-680 (citations omitted). The Pennsylvania Supreme Court declined to review the case.

In his habeas corpus petition, Nelson reiterates his arguments that the confrontation with Moore violated the prophylactic rules set out in the Supreme Court's Fifth and Sixth Amendment jurisprudence. The magistrate recommended that Nelson's claims be rejected on two grounds. First, he reasoned that Nelson could not rely on the Sixth Amendment "jail plant" line of cases because Moore was not a paid, undisclosed informant. Second, the magistrate observed that Nelson had asked the inculpatory question "without being prompted" and held, under Kuhlman v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), that this spontaneously-made statement was properly admissible notwithstanding a prior assertion of the right to remain silent. App. at 793-94.

The district court declined to adopt the magistrate's report and recommendations, but nevertheless denied Nelson's habeas corpus petition and his certificate of probable cause for appeal. It wrote no opinion explaining this result. We granted Nelson's probable cause petition and now review Nelson's claims de novo. We have jurisdiction under 28 U.S.C. Sec. 1291.

The parties tender four issues on appeal: (1) whether the state court's finding of fact that Nelson invoked his right to cut off questioning is "fairly supported by the record," 28 U.S.C. Sec. 2254(d)(8); (2) if so, whether the confrontation between Nelson and Moore violated the Fifth Amendment's restrictions on custodial interrogation of suspects who have invoked their right to silence; (3) whether the police nevertheless "scrupulously honored" Nelson's right to silence under Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); and (4) whether the confrontation violated Nelson's Sixth Amendment right to counsel.

II.

In this appeal, the Commonwealth argues for the first time that the state court's factual finding that Nelson invoked his right to remain silent is not fairly supported by the state court record.

The state court record before us, which has not been established as complete, contains only one reference to Nelson's invocation of his right to remain silent other than the trial court's finding to that effect. During the trial court's hearing on Nelson's post-trial motions, the Commonwealth's counsel made the following statements:

MR. BENSON: Your Honor, on December 10 of 1982, an order and brief memorandum filed by this Court bearing upon this issue found, as a matter of fact, three things; that the defendant was not under arrest at the time of this statement, that he was not charged with these offenses at the time of this statement, and that he had previously made a valid waiver of his right to counsel.

The pre-interrogation warning form, and I'm not certain if that was admitted into evidence or not, Your Honor, but it indicates that the defendant had been informed of his Miranda warnings, signed the card indicating he understood them, and signed the waiver card indicating he did not want to talk to the police.

App. at 560. Immediately thereafter counsel acknowledged the correctness of the court's finding that Nelson "did not want counsel, but did not want to talk to the police." App. at 561. The Commonwealth concedes that the record contains nothing that directly contradicts the finding that Nelson sought to cut off questioning. ¹ Thus, the Commonwealth essentially argues that we should reject an uncontradicted factual finding of the state court which the Commonwealth's own attorney unambiguously corroborated during the state trial proceedings. We decline to do so.

Subsections (d) and (e) of Section 2254 of Title 28 create a presumption in favor of state court findings of fact under designated circumstances. While those subsections do not literally apply here because it is the respondent who is challenging a state court finding and because the...