Sober v. Crist
| Decision Date | 28 June 1982 |
| Docket Number | No. CV-79-13-BLG.,CV-79-13-BLG. |
| Citation | 551 F. Supp. 724 |
| Parties | Lawrence LaVern SOBER, Petitioner, v. Roger W. CRIST, Warden, Montana State Prison, and Michael T. Greely, Attorney General, State of Montana, Respondents. |
| Court | U.S. District Court — District of Montana |
Gene R. Jarussi, Keefer, Roybal, Hanson, Stacey & Jarussi, Billings, Mont., for petitioner.
Charles A. Bradley, Chief Deputy County Atty., Yellowstone County, Billings, Mont., for respondents.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Petitioner previously initiated this habeas corpus action under 28 U.S.C. § 2254, attacking the validity of a September 1977 Montana district court conviction upon his plea of guilty, for attempted sexual intercourse without consent, in violation of R.C. M.1947, § 94-5-503, presently codified at MCA § 45-5-503 (1981). On June 22, 1979, this Court granted respondents' motion for summary judgment, thereby denying the relief sought by petitioner. On appeal, the Ninth Circuit remanded the case to allow this Court to conduct an evidentiary hearing on two issues raised by petitioner: (1) lack of a voluntary and intelligent entry of a guilty plea, and (2) ineffective assistance of counsel. See Sober v. Crist, 644 F.2d 807 (9th Cir.1981). The Court has conducted an evidentiary hearing on these issues and from an exhaustive review of the testimony and evidence presented, makes the following Findings of Fact and Conclusions of Law.
1. On June 16, 1977, petitioner was initially questioned by Billings Police Department officers concerning the sexual assault of his neighbor, Mrs. Michelle Sullivan. During the questioning, police officers noted a strong odor of intoxicants while speaking with petitioner. Petitioner voluntarily went to the Billings police station and offered a statement to the officers in charge of the investigation. At that time, petitioner was fully and properly advised of his Miranda rights. Petitioner denied any personal involvement in his neighbor's assault but admitted a previous Colorado conviction for assault.
2. On June 22, 1977, Sober consented to further questioning by police concerning the assault, and ultimately admitted by confession that he was the victim's attacker but denied any sexual motives. Petitioner was then arrested for sexual assault and formally charged with attempted sexual intercourse without consent.
3. Petitioner initially alleged that before confessing to the incident, he was not fully readvised of his Miranda rights other than a remark by an Officer Fox that he could have an attorney. Petitioner further alleges that his confession was coerced by the officers during the interrogation on June 22, 1977. Detective Fox stated in his police report that Petitioner's claim that his confession was coerced was implicitly waived by his own testimony at the evidentiary hearing. On direct examination petitioner was asked the following by his appointed counsel:
Petitioner confessed approximately 45 minutes after the alleged overreaching by police. Even assuming the officer's comments were threatening or psychologically coercive, from the facts elicited there is no evidence that petitioner's choice was influenced or his will overcome by the officer's statement.
4. John L. Adams, a Billings attorney, was appointed to represent petitioner in state court. On June 29, 1977, Mr. Adams moved the court for a psychiatric evaluation of petitioner and the motion was granted. Upon completion of the mental evaluation, Adams met with Sober to discuss the status of the case and Sober initially pled not guilty to the charges on August 15, 1977.
5. Subsequent to the initial plea, Adams met with petitioner on at least four occasions: August 5, 17, and 31, and September 9, 1977. At these conferences, Adams and Sober discussed the facts and events concerning the charges against petitioner. Adams advised Sober of the prosecution's position and attitude in the case and how the jury would probably view the evidence. Adams also discussed intoxication as a possible defense, but did not consider or discuss abandonment as a valid defense. Adams ultimately determined that the facts of the case negated intoxication as a strong defense and advised Sober that the defense would probably be rejected by a jury. Adams and Sober discussed four offenses: (a) Burglary; (b) sexual intercourse without consent; (c) felony sexual assault; (d) misdemeanor sexual assault. Although admitting that he did not discuss each element of all the lesser included offenses, Adams contends petitioner understood the elements in relation to the possibility of lesser penalties. Adams also recalled that he informed Sober of his attempts to get the charges reduced to a lesser included offense.
6. Petitioner contradicted Adams' testimony by contending primarily that he did not understand the elements of the charge against him and that he was not aware of the possible defenses available to him. Much of petitioner's testimony was derived from or aided by a "log" or summary he kept in jail during June-September of 1977. At the evidentiary hearing conducted by the Court, numerous contradictions arose between the testimony of petitioner and his appointed counsel concerning the sequence of events during this time.
7. Sober denies that he received any explanation concerning (a) the elements of attempted sexual intercourse without consent; (b) any possible defenses; or (c) the required mental state for commission of the offense. Petitioner also alleges that he sent his attorney a letter of September 2, 1977, requesting that Adams pursue a motion to suppress concerning his confession made on June 27, 1977. Adams denied that he received the request and testified that at a September 9, 1977, conference, petitioner did not mention the motion to suppress. Adams indicated that Sober would be required to testify if the intoxication or abandonment defenses were pursued and in his opinion this would open the door for impeachment by petitioner's confession. He further testified he informed petitioner that even if suppressed as illegally obtained the confession could be used for such impeachment purposes. See e.g., United States v. Whitson, 587 F.2d 948, 954-55 (9th Cir.1978).
8. The Court finds petitioner's claims surrounding the motion to suppress highly improbable. Testimony at the hearing suggested petitioner was somewhat encouraged to pursue suppression of his allegedly coerced confession by inmates in the county jail. However, he never discussed the possibility of pursuing the motion with his attorney. Moreover, petitioner was specifically questioned at the hearing as to the facts surrounding his coerced confession and he expressly denied any recollection of the alleged coercive interrogation by Officer Fox. It is difficult to accept this portion of Sober's testimony as credible. The motion to suppress appears to be a major component of his ineffective representation claim and apparently occupied a major portion of his diary, yet petitioner cannot recall the crucial events that would form the basis for possible suppression and support the claims made against his attorney. This belies the conclusion that the threat of arrest was the catalyst in securing petitioner's confession.
9. The testimony of the interrogating officers rebutted petitioner's contentions that he was somewhat confused and unclear about the charges against him. The officers testified that the possibility of a misdemeanor charge was never mentioned to petitioner; rather, felony assault was initially contemplated as a charge. Further, petitioner was required to sign a fingerprint card which listed the offense as sexual intercourse without consent.
10. Sober also believed he had valid intoxication and abandonment defenses. However, on cross-examination, petitioner later testified that he did not believe intoxication was a defense, explaining that he really wasn't sure of his intent at the time of the offense; further, petitioner described himself as a "heavy drinker" yet revealed at the hearing that he did not believe he drank heavily on the night of the assault. R.C.M.1947, § 94-2-109, provides:
A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated or drugged condition may be taken into consideration in determining the existence of a mental state which is an element of the offense.
The Court finds that petitioner's admission, together with the evidence evaluated in its entirety could not have supported an intoxication defense.
11. Petitioner also believed he could maintain an abandonment defense in his case. However, the undisputed facts concerning petitioner's conduct on the night of the assault reveals he did not voluntarily terminate his advances; rather, he fled from his victim when she began resisting his advances. The attempt statute in effect in 1977 required a voluntary and complete renunciation of criminal purpose before a valid abandonment defense could be asserted. R.C.M.1947, § 94-4-103(4). Therefore, Sober's conduct was clearly not the product of a voluntary withdrawal and we find no merit in petitioner's abandonment contentions.
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