State of Minnesota v. Tahash

• Decision Date: 19 August 1966
• Docket Number: No. 18207.,18207.
• Citation: 364 F.2d 922
• Parties: STATE OF MINNESOTA ex rel. Glen R. HOLSCHER, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

364 F.2d 922 (1966)

STATE OF MINNESOTA ex rel. Glen R. HOLSCHER, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Penitentiary, Appellee.

No. 18207.

United States Court of Appeals Eighth Circuit.

August 19, 1966.

David M. Beadie, of Doherty, Rumble & Butler, St. Paul, Minn., for appellant.

Gerard W. Snell, Sol. Gen. for State of Minn., St. Paul, Minn., for appellee. Robert W. Mattson, Atty. Gen. for State of Minnesota, St. Paul, Minn., was with him on the brief.

Before JOHNSEN and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

BLACKMUN, Circuit Judge.

This habeas corpus case in forma pauperis has been here before. State of Minnesota ex rel. Holscher v. Tahash, 346 F.2d 556 (8 Cir. 1965).

Glen Ray Holscher, now 32 years of age, in January 1959 was indicted by a Hennepin County, Minnesota, grand jury for the crime of murder in the first degree, as defined in Minn.Stat. § 619.07 (1957)¹ (perpetration with a premeditated design to effect death). A female child, 11 years of age, was the murder victim; three other children were also assaulted. After a plea of not guilty a jury convicted Holscher in February 1959 of murder in the third degree, as defined in Minn.Stat. § 619.10 (1957)² (perpetration without premeditated design to effect death, but by an act "eminently dangerous to others, and evincing a depraved mind, regardless of human life, * * * by a person engaged in the commission of * * * any felony, except * * *"). Holscher received an indeterminate sentence of from 14 to 60 years in the state penitentiary.³ A writ of error was pursued but the conviction was affirmed. State v. Holscher, 261 Minn. 478, 113 N.W.2d 94 (1962). Certiorari was denied, 370 U.S. 955, 82 S.Ct. 1607, 8 L.Ed.2d 821.

Holscher thereafter filed various petitions in the state courts attacking his conviction and sentence.⁴ In 1963 he filed his habeas corpus petition in federal court. A hearing was held. Petitioner was there represented by experienced court-appointed counsel. The district court denied the application for the writ. We granted a certificate of probable cause, under 28 U.S.C. § 2253, and appointed new counsel for the appeal. That review, as does this one, centered upon the application of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L. Ed.2d 908 (1964), to Holscher's facts. We there concluded that, on the record then before us, we were unable to determine whether there was any factual basis for the application of Escobedo or Jackson. We carefully disavowed any implication as to our attitude on retrospectivity of those decisions. We reversed and remanded the case with directions that the district court make findings and conclusions and, if deemed necessary, receive additional evidence. Pp. 557-558 of 346 F.2d.

The district court did in fact hold a further hearing in June 1965. Both court-appointed counsel for Holscher were present. Among the witnesses were Holscher himself and Lewis E. Lohmann who, as public defender, had represented Holscher in the state trial.

There is no dispute as to most of the facts: Holscher was arrested at his home about two a. m. on January 10, 1959. He was taken to the Minneapolis police station and questioned. He conceded nothing initially. That morning he was twice taken to the hospital where he was identified as the assailant by two of the children. He was returned to the station, booked, and lodged in jail. He orally confessed. He informed the police where a gun in his automobile was located. It was found there. The tip of its trigger had been broken off. The missing piece was later found at the scene of the crime. In the early afternoon he signed his first written statement. Two other written statements were taken from him two and four days later, respectively.

Holscher was arraigned on January 19. Counsel was appointed and a plea of not guilty was entered for him at that time but he had not seen or consulted with counsel when his statements were taken.

At the trial the first two written statements and a portion of the third were read to the jury. The state trial court instructed the jury that it was not bound to accept any confession, that before it could consider a confession it must "find whether or not it was voluntarily given" and that, if it found it was not voluntarily made, it was its duty to disregard it entirely.

The federal district court in due course made findings of fact and conclusions of law based upon the evidence taken at both the 1963 and 1965 hearings. It found, specifically, that Holscher was confined in the Minnesota state penitentiary; that the statements taken from him and read at his trial were received in evidence without objection; that he made these statements voluntarily; that, although Holscher himself testified otherwise, he "made no request to call or see an attorney before or during the interrogation incident to the taking of the statements"; that he was not denied an opportunity to consult with counsel; and that the "police did not inform the petitioner of a right to counsel nor did they warn him of the right to remain silent". It concluded that the statements were properly received in evidence; that they were not taken in violation of Holscher's Sixth Amendment right to assistance of counsel; that his rights as expressed by Escobedo were not violated; that he was not deprived of due process under Jackson v. Denno; that "This Court, after two hearings and an examination of the record in this case, has made an independent determination on the issue of the voluntariness of the statements made by petitioner and admitted into evidence against him, and has found that the statements were made voluntarily"; that his "right under Jackson v. Denno to a fair hearing and to a reliable determination on the issue of voluntariness has been satisfied"; that Holscher waived his right to object to the admission of the statements; that Escobedo and Jackson are not retroactive or applicable to Holscher "since his conviction became final before the decisions in those cases"; and that all Holscher's constitutional rights "have been adhered to, lived up to, and respected by the Minnesota courts and the police". The petition for writ of habeas corpus, accordingly, was denied.

Holscher's application for a certificate of probable cause was also denied by the district court. We, however, again granted the certificate.

We have carefully read the transcripts of the district court hearings. Although Holscher's testimony and that of all other witnesses, including his trial counsel are somewhat at variance, as is not unusual in cases of this kind, the record clearly affords substantial and most adequate support for the findings of fact which the district court has now made. The significant ones, of course, are those relative to the voluntary character of the statements, their receipt at the trial without objection, the absence of any request by Holscher to see an attorney, the absence of any denial of opportunity to consult with counsel, and, certainly favorable to him, the absence of advice to him of his rights to a lawyer and to remain silent.

With the knowledge of counsel we have withheld decision in Holscher's present appeal for a short time pending the promulgation of opinions by the Supreme Court on its review of State v. Miranda, 98 Ariz. 18, 401 P.2d 721 (1965), and of other cases having to do with police interrogation, confessions, and the retrospective application of recent decisions. These cases have now come down. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). They afford us guidance here for our own decision as to the claimed violations of Holscher's constitutional rights.

The Escobedo or self-incrimination issue. Although Escobedo's facts were stronger than Holscher's (the existence of counsel, the making of requests to see counsel, and the refusal of counsel's access to his client), we would have no difficulty in concluding that at the time Holscher's statements were made the interrogation process had progressed beyond the investigation phase and had, indeed, focused on him. Moreover, certain of the Fifth Amendment procedural safeguards now imposed and made mandatory by Miranda were clearly not fulfilled at the time Holscher was subjected to custodial interrogation by the Minneapolis police: he was not warned that he had a right to remain silent; he was not warned that any statement he made could be used as evidence against him; and he was not warned that he had a right to the presence of an attorney, either retained or appointed. It is obvious, therefore, that, had Holscher's trial taken place after the dates of the Supreme Court's Escobedo and Miranda decisions, his statements would not be admissible in evidence unless he effectively waived his privilege against self-incrimination.

Although the state would possess "a heavy burden" on the waiver issue, see Miranda v. State of Arizona, supra, p. 475 of 384 U.S., 86 S.Ct. 1602, we need not resolve the waiver question here. This is because the Supreme Court, in Johnson v. State of New Jersey, supra (where the petitioner had unsuccessfully asked for a lawyer during his interrogation), held that Escobedo, decided June 22, 1964, and Miranda, decided June 13, 1966, are not to be applied retroactively but apply only to persons whose trials began after those decisions were respectively announced. Inasmuch as Holscher's state trial took place in 1959, this holding eliminates the new guidelines of Escobedo and Miranda from the present appeal. The self-incrimination point thus lacks effective substance here.

The Jackson or procedural due process issue. Jackson v. Denno presents a different problem. The decision in Jackson, by which the New York procedure of leaving to the trial jury the determination...