State ex rel. Schuler v. Tahash, 40545

• Decision Date: 10 November 1967
• Docket Number: No. 40545,40545
• Citation: 278 Minn. 302,154 N.W.2d 200
• Parties: STATE of Minnesota ex rel. Melvin SCHULER, Appellant, v. Ralph H. TAHASH, Warden Minnesota State Prison, Respondent.
• Court: Minnesota Supreme Court

Page 200

154 N.W.2d 200

278 Minn. 302

STATE of Minnesota ex rel. Melvin SCHULER, Appellant, v. Ralph H. TAHASH, Warden Minnesota State Prison, Respondent.

No. 40545.

Supreme Court of Minnesota.

Nov. 10, 1967.

Syllabus by the Court

1. An inculpatory oral statement by relator was properly found to be not involuntary where relator's only claim, itself having doubtful evidentiary support, was that he was denied access to counsel during a pre-Escobedo police interrogation.

2. Relator's plea of guilty was properly found to be not improvidently induced by advice of counsel or in genuine misapprehension of his constitutional rights 3. A presentence statement of relator's counsel, in the nature of additional allocution, was properly found to be not inconsistent with relator's plea of guilty.

where relator failed to produce in corroboration the available testimony of his former counsel upon whose voluntarily-disclosed confidential consultation he purported to rely.

C. Paul Jones, Public Defender, Ronald L. Haskvitz, Asst. Public Defender, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., Gerard W. Snell, Acting Sol. Gen., David C. Weinberg, Asst. Atty. Gen., St. Paul, for respondent.

OPINION

PETERSON, Justice.

Relator, Melvin Schuler, shot and killed his father on March 11, 1940. He was indicted for murder in the first degree by the grand jury of Wright County on May 6, 1940. He pleaded not guilty to the indictment for murder in the first degree, but pleaded guilty to murder in the second degree. He was thereupon sentenced to life imprisonment in the State Penitentiary, where he is still confined. ¹

Relator petitioned for a writ of habeas corpus on May 5, 1966,--26 years after his conviction--on the ground that his plea of guilty was improvidently made and accepted. His plea of guilty, relator argues first, was induced--upon advice of counsel--by the existence of a constitutionally inadmissible confession, which his counsel in effect erroneously advised him would be admissible against him in a trial. The court, he argues second, improperly accepted his plea of guilty when his counsel, in the presentence proceedings immediately following acceptance of his plea, made statements inconsistent with his plea of guilty. After an evidentiary hearing on July 28, 1966, ² the habeas court discharged the writ and denied relator's petition for discharge.

The basic issue, on relator's appeal from the order of the habeas court, is whether the court's findings of fact are supported by the evidence. The court found as matters of fact, first, that relator's confession was neither involuntary nor the actual inducement for his plea of guilty; and, second, that his plea was made upon advice of competent counsel and that his counsel's presentence comments were not inconsistent with the plea.

The homicide was the result of a violent quarrel over the decedent's use of relator's shotgun. Relator and the decedent were both persons of bad temper and had quarreled violently on repeated occasions. In the course of a struggle for possession of relator's shotgun, decedent was felled by two shotgun blasts. Relator does not deny that his second shot was intentional. He claims only that his first shot was accidental and that the wound thereby inflicted was mortal. He argues, from this latter assumption of fact, that the element of intentional causing of death, essential to a conviction for murder in the second degree, was absent.

Relator was arrested at about 10 p.m. on the night of the shooting and was visited in jail by the county sheriff at about 7:30 a.m. the next day. What accused stated at that time is disclosed in the testimony of the sheriff at the preliminary hearing:

'Q. (By County Attorney Walter S. Johnson) What did you say when you went in to see him?

'A. He said hello, Paul and I said Hello, Melvin.

'Q. Then what was said?

'A. We took hold of hands and I asked him what was the trouble. * * * Melvin was crying a little bit.

'Q. What did you say to him?

'A. I asked him what was the trouble down there, and he started to cry again. I told him that if he wanted to tell me about it, it was all right, but that anything he said could be used against him in a trial if there was a trial. I told him that the best way was the easiest way. He cried some more. I asked him what was the trouble down there. He said he shot his father. I asked him how it happened and he said that he left the house about 11:30 or 12 o'clock to call his dad for dinner. His father had the shot gun. The hammer was open. He said to his dad, that gun is open, you better close it. His dad said a harsh word and he didn't know what it was.

'Q. Melvin didn't say what the harsh word was?

'A. No.

'Q. Then what did he say had happened?

'A. Melvin said he grabbed the gun from his father and he pulled the trigger and he shot his father in the face. While he was going down, he pumped it once more and he shot his father again.

'Q. Did he say his father was down when he shot him the second time?

'A. He said that he was down, just going down.

'Q. Then what happened?

'A. Then he called his mother and told her that dad had shot himself. They called Dr. Phillips and Dr. Roholt. I said, Melvin, that's fine. I can't promise you anything because anything you say can be used against you. I will get a stenographer and we'll take down what you have said and have you sign it and which happened.'

Relator's claim that his 'confession' was involuntary is based on the fact that his counsel was denied permission to see him during the morning the confession was taken. Relator's mother had by that time retained private counsel for her son. ³ It is uncertain, however, whether the request for counsel was made during the course of oral interrogation or in the interim between the conclusion of the interrogation and the transcription of the stenographer's notes. The testimony of the sheriff at the preliminary hearing seems to indicate that the denial of access more probably occurred after the interrogation:

'Q. (Cross-examination by Mr. Welch) He asked to see me around 8 o'clock?

'A. No he did not.

'Q. When he wanted to see me, what did you tell him?

'A. I said he could see you when we had taken his statement.

'Q. You told me that I couldn't see him until after the statement was written up?

'A. Yes.

'Q. As a matter of fact it was around 9 o'clock when he wanted to see me?

'A. Maybe it was.

'Q. You told me he wanted to see me and that I couldn't see him until you had taken the statement?

'A. Yes.

'Q. What time did you commence talking to him?

'A. About 7:30.

'Q. What time did you get through talking to him?

'A. It was a good half hour or more.' ⁴

Relator's claim that his plea of guilty was induced, on advice of counsel, upon genuine misapprehension that an inadmissible confession would otherwise be used against him at trial is based upon relator's sole testimony in the habeas court:

'Q. (By Ronald Haskvitz, assistant state public defender) * * * Did this confession play any part in your decision to plead guilty?

'A. No, it didn't. * * * I followed the advice of my attorney.

'Q. What was your attorney's advice?

'A. He felt that if I stood trial I would be convicted of first degree and I would never have an opportunity to ever be released.

'Q. Did he tell you why, did he tell you why you would be found guilty?

'A. Because he said he didn't think that he could stop the confession from being--my statement--the confession from being stricken from the record.

'Q. Did this have any bearing on your decision to plead guilty?

'A. (No response)

'Q. Well, his advice was to plead guilty?

'A. Yes.

'Q. Is this what you meant, your attorney advised you to plead guilty to second degree because of the confession?

'A. Yes, that was his excuse.'

Relator made no effort to call Welch as a witness to corroborate this testimony, although it is known that Welch is very much alive and would have been available to appear, either voluntarily or by subpoena.

1. We hold that the evidence is sufficient to support the habeas court's finding that relator's statement was not involuntary. The prophylactic exclusionary rules of Escobedo and Miranda ⁵ now applicable to confessions obtained in the absence of counsel are, of course, not retroactively applicable to that confession. ⁶ And, as we have observed, it is doubtful that relator's counsel was in fact excluded during the time relator made his Oral statement. The ultimate constitutional safeguard excluding confessions that are coerced in fact ⁷ is not applicable because of the supported finding that it was in fact not involuntary. No claim is made that relator's will was overborne by any act of his interrogator other than by exclusion of his counsel.

2. We hold that the evidence is sufficient to support the habeas court's further finding that relator's plea was made upon the advice of competent counsel and was not induced by a genuine misapprehension of his legal rights with respect to that inculpatory statement. Relator's own testimony is itself not at all clear, and the failure to produce his former counsel to corroborate his testimony militates against its credibility. ⁸

Under the circumstances of this case the testimony of relator's counsel was available to either relator or the state without inhibition of the attorney-client privilege. It is true, of course, that the common-law attorney-client privilege, embodied in Minn.St. 595.02(2), provides:

'An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given thereon in the course of professional duty; nor can any employee of such attorney be examined as to such communication or advice, without the client's consent.'

It is equally true, however, that the client can effectively waive the privilege by conduct or affirmative consent. State v. Madigan, 66 Minn. 10, 12, 68 N.W. 179, 180; 97 C.J.S. Witnesses, § 306, and § 310, pp. 857,...