Redus v. Swenson

• Decision Date: 29 February 1972
• Docket Number: No. 71 C 738(3).,71 C 738(3).
• Parties: James E. REDUS, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

339 F. Supp. 571

James E. REDUS, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Respondent.

No. 71 C 738(3).

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

February 29, 1972.

James E. Redus, pro se.

John C. Danforth, Atty. Gen., State of Mo., and Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDER

WEBSTER, District Judge.

James E. Redus, currently confined in the Missouri State Penitentiary, petitions this court for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a 20 year sentence after pleading guilty to second degree murder in the Circuit Court of the City of St. Louis on November 3, 1966. In support of his application for writ of habeas corpus, petitioner alleges that: 1) the trial judge's examination of petitioner prior to accepting the guilty plea was inadequate under Missouri Supreme Court Rule 25.04 and under applicable federal standards; 2) his plea of guilty was involuntary since it was the product of a coerced confession; and 3) he was denied effective assistance of counsel. On March 17, 1970 petitioner filed a motion to withdraw his guilty plea and to vacate unlawful judgment and sentence pursuant to Missouri Supreme Court Rules 27.25 and 27.26, V.A.M.R. Petitioner was appointed counsel, and, after an evidentiary hearing, the Circuit Court denied relief and the Missouri Supreme Court affirmed on appeal (Redus v. State, 470 S.W.2d 539 (Mo.1971)). Respondent has included a transcript of the evidentiary hearing in his response to this court's order to show cause.

Testimony at the evidentiary hearing indicates that petitioner was arrested at about 3:45 p. m. on April 9, 1966 in connection with the murder of a Joseph Klearman and that he was questioned about the killing over the next two or three days. At the evidentiary hearing, petitioner claimed that he was given only one meal throughout this period and that the police threatened to beat him if he did not give them a statement. He testified that he requested to consult with a lawyer and to see "his people" several times, but that his requests were denied. He denied confessing to the murder.

A Detective James Cox of the St. Louis Metropolitan Police Department testified that he personally began questioning petitioner at approximately 9:00 a. m. on April 10 and that the questioning continued "off and on" from 9:00 a. m. to 4:30 p. m. on April 10, 11 and 12. According to Cox, the longest period of interrogation was about an hour. He said that the police would stop the questioning to check out information petitioner provided them and then would return to continue the interrogation. Cox testified that police did not threaten petitioner and that they permitted him to call his family. Cox also stated that he advised petitioner of his right to be represented by an attorney and that the court might appoint an attorney for him. He testified that he did not advise petitioner of his right to have an attorney present nor that a court might appoint an attorney to represent him during the interrogation. The officer testified that petitioner made several statements implicating himself during the interrogation and that a stenographic confession to the murder was taken by the Circuit Attorney's office. Petitioner did not sign this confession. Subsequently, petitioner was charged with first degree murder.

Henry G. Morris, who was one of two lawyers appointed to represent petitioner at trial, testified at the Rule 27.26 hearing that when petitioner told him about the confession allegedly recorded by the Circuit Attorney's office, he filed a motion to suppress, that an evidentiary hearing was held on the motion and that petitioner testified at that hearing. The motion to suppress was denied by the trial court. There is no transcript of proceedings held in connection with the motion to suppress in the record and the court is not able to determine the basis upon which the trial court denied the motion. Morris also testified that both he and petitioner's other appointed trial counsel co-operated in consulting with petitioner, in investigating the facts of the case and in seeking to interview witnesses. Morris stated that he invoked the rules laid down by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966) in support of the motion to suppress.

On the week before the case was set for trial, the Circuit Attorney agreed to permit petitioner to plead guilty to second degree murder and to recommend a sentence of fifteen years. Morris testified that he discussed the offer with petitioner and advised petitioner that he "would do better pleading guilty than running the risk of getting the death penalty." At the Rule 27.26 hearing, Morris testified that he gave this advice because first degree murder carried a minimum sentence of life imprisonment and possible death. If petitioner went to trial, a jury would probably be presented with evidence of the incriminating statements alleged to have been recorded by the Circuit Attorney's office. Morris felt that petitioner could not afford to take the stand to challenge the confession evidence because petitioner had several prior convictions which could be used to attack his credibility on cross-examination. Morris testified that he spent "considerable time" explaining the situation to petitioner. He testified that he told petitioner of his right to jury trial, the nature of the charges pending against him and explained that in the event of trial, punishment would be set by the court.

Petitioner agreed to plead guilty and to accept a sentence of fifteen years, but the trial judge indicated at this time that he would not accept a guilty plea on these terms, as he thought the punishment should be twenty years. Morris conveyed this to petitioner and petitioner agreed to enter a plea of guilty to second degree murder with the understanding that he would receive a sentence of twenty years.

A transcript of proceedings in the trial court at the time petitioner pleaded guilty was introduced into evidence at the Rule 27.26 hearing and is part of the record here. This transcript appears as follows:

TRANSCRIPT OF ORAL PROCEEDINGS HAD ON NOVEMBER 3, 1966, BEFORE THE HONORABLE ROBERT L. ARONSON, JUDGE, WITH REFERENCE TO DEFENDANT'S PLEA OF GUILTY AND SENTENCE PRONOUNCED

APPEARANCES

Mr. Joseph Walsh, Assistant Circuit Atty., for plaintiff;

Mr. Joseph J. Nitka and Mr. Henry Morris, attorneys for defendant

THE COURT: This is James Edward Redus, R-e-d-u-s. 906-0 is the case. Mr. Walsh represents the State. Mr. Nitka and Mr. Henry Morris stand beside the defendant as his counsel. I understand, Mr. Walsh, you are going to reduce the charge first?

MR. WALSH: Yes, your Honor. If the Court please, at this time the State will reduce the charge from murder in the first degree to murder in the second degree.

THE COURT: That being done, what is the defendant's announcement?

MR. MORRIS: The defendant will plead guilty.

THE COURT: Do you pronounce the name "Reedus" or "Reddus"?

THE DEFENDANT: "Redus".

THE COURT: Now, Mr. Redus, did you authorize Mr. Morris to make that statement? Do you now plead guilty?

THE DEFENDANT: Yes, sir.

THE COURT: And you know in pleading guilty that there is always some punishment attached to the plea of guilty in a murder case?

THE DEFENDANT: Yes.

THE COURT: You have had the advice of Henry Morris and Mr. Nitka, your appointed attorney, is that right?

THE DEFENDANT: Yes.

THE COURT: You have talked about this extensively over the past several days and some time this afternoon too, if I understand correctly?

THE DEFENDANT: Yes, sir.

THE COURT: Now go ahead, Mr. Walsh; you may make a statement. I know more about this. The record may show that I have conferred with counsel on both sides, which I rarely do but did in this instance, but still, for the record, you ought to make a brief statement, at least, of the facts.

MR. WALSH: That's correct. The State's evidence shows that on April 9, 1966, approximately 4:30 in the afternoon, this defendant in company with another man named John Watson, this man being a direct employe of Mr. Joseph Klearman, who operated Klearman Company, 4046 Evans Avenue, in the City of St. Louis, being the driver of this coal truck, Watson being a part-time assistant. Actually, in fact, Redus more than Klearman, began an altercation in the office, which, according to a statement of this defendant, somewhat self-serving in nature, was preceded by a minor accident to the victim's truck. The victim was unhappy with this. This defendant claimed that the victim had swung the first blow at him with an iron bar, and then he struck the elderly gentleman with it, about 70 years of age, and at that time the co-defendant Watson was in a nearby saloon and he came out, joined in and also struck the elderly gentleman. That then this defendant, in concert with Watson, rummaged through the elderly gentleman's pants pockets, removed a small amount of money, approximately $5.00, $4.50, and the keys to his car, which Watson used to escape, and demolished the car in the course of that. The defendant has a prior record, having been convicted in 1957 and sentenced to two years for sodomy, and in 1963 for assault with intent to ravish, and based on the evidence and the statements and a conference with this Court, the State will make a recommendation of twenty years in the Department of Corrections.

THE COURT: I think it is well that the record show that you made that recommendation in part because of problems that you will obviate by this disposition, with respect to the admissibility of some evidence, although it's not clearly established as to what a trial Judge would do.

MR. WALSH: That is correct, your Honor.

THE COURT: All right, I am going to follow this recommendation in this instance, and so, James Redus, on your —

MR. WALSH: Your Honor, if I...