Stidham v. Swenson

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: COLLINSON
• Citation: Stidham v. Swenson, 328 F.Supp. 1291 (W.D. Mo. 1970)
• Decision Date: 15 May 1970
• Docket Number: Civ. A. No. 18121-2.
• Parties: James William STIDHAM, Petitioner, v. Harold R. SWENSON, Respondent.

328 F. Supp. 1291

James William STIDHAM, Petitioner, v. Harold R. SWENSON, Respondent.

Civ. A. No. 18121-2.

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

May 15, 1970.

Petitioner appeared pro se.

John Danforth, Atty. Gen., and Kenneth M. Romines, Asst. Atty. Gen., for respondent.

MEMORANDUM AND ORDER DENYING PETITION FOR HABEAS CORPUS

COLLINSON, District Judge.

Petitioner is an inmate of the Missouri State Penitentiary serving a sentence of life imprisonment upon conviction of a first-degree murder. Petitioner filed a petition for habeas corpus asserting that his conviction is void because it was rendered without due process of law and in violation of the Fifth, Sixth, and Fourteenth Amendments.

In May, 1952 petitioner was sentenced to a 25-year term in the Penitentiary for robbery. While serving his term, he was accused and convicted in 1955 of killing another inmate, for which he was sentenced to a life term. Petitioner appealed his conviction which was affirmed by the Supreme Court of Missouri in 1957. See 305 S.W.2d 7. In 1964 he filed a 27.26, V.A.M.R. motion to vacate his sentence which was denied, without an evidentiary hearing. On appeal, the Missouri Supreme Court affirmed. See 403 S.W.2d 616. Thereafter, petitioner filed a second 27.26 motion alleging new grounds, which was also denied without an evidentiary hearing by the trial court. The Supreme Court of Missouri reversed and remanded on appeal (415 S.W.2d 297) and on December 5, 1968, an evidentiary hearing was held in the St. Louis City Circuit Court. This hearing resulted in a denial of relief under the 27.26 motion, which judgment was appealed to the Supreme Court and consolidated with another appeal for hearing by the court en banc. The Supreme Court on February 9, 1970 affirmed the decisions of the lower courts. 449 S.W.2d 634.

Petitioner then filed a petition for habeas corpus in this Court, and on March 2, 1970, a show cause order was issued, since it appeared that petitioner had exhausted his available state remedies and might have stated a violation of one or more of his federally protected rights. The respondent filed with this Court, in response to the show cause order, the transcripts of the records on appeals (Missouri Case Nos. 45537 and 54674), briefs and arguments of the parties, and the opinions of the Supreme Court of Missouri. It appears to the Court that this record is complete and that it fully demonstrates that the petitioner has exhausted his available state remedies.

The petitioner alleges seven grounds for relief: (1) that he was tried and convicted upon a charge of conspiracy which was not included in the indictment; (2) that he was deprived of assistance of counsel at two critical stages of his trial; (3) that he did not knowingly or competently waive the assistance of counsel at any stage of the proceedings against him; (4) that certain members of the Missouri State Highway Patrol and personnel of Missouri State Penitentiary exerted physical and mental punishment upon him to secure a confession from him; (5) that the trial judge admitted the confession into evidence without first making a clear and specific finding that the said confession was voluntary; (6) that Instruction No. 6 given at the trial did not fully set out the constitutional standards for the jury's guidance to determine the voluntariness of the said confession; and (7) that the State of Missouri knowingly used perjured testimony of two convicts to obtain the conviction of petitioner.

The facts are fairly well set out in State v. Stidham, Mo., 305 S.W.2d 7. Very briefly, in 1952 petitioner was sentenced to 25 years' imprisonment for his part in the armed robbery of Grapette Bottling Company in Joplin, Missouri. (See State v. Stidham, Mo., 258 S.W.2d 620.) On October 3, 1955, after a jury verdict of guilty, petitioner was sentenced to life imprisonment for his participation in the murder of a fellow inmate, Walter Donnell, on September 22, 1954, during the riot of 800 prisoners in the Missouri State Penitentiary.

Petitioner's first contention is that the state was allowed to prove and the jury instructed upon the charge of conspiracy to murder which was not included in the indictment. The indictment did not charge conspiracy; but it did charge seven persons with the murder of Donnell. Even though petitioner and the other named defendants were granted severances, the indictments in each trial named all seven of them. Further, the evidence showed that the defendants had acted in concert. An objection was leveled against Instruction No. 4 because it hypothesized that each had entered into a conspiracy and had acted in concert and "aided, abetted, assisted or encouraged" in the slaying. Under Missouri law all persons who are guilty of acting in concert in the commission of a felony are considered principals and are charged, tried, convicted and punished in the same manner. (See V.A.M.S., § 556.170.) There is no merit to the claim that murder and conspiracy to commit murder (which was in fact accomplished) are such different charges that petitioner could not have been prepared to defend himself. Furthermore, there is direct authority for instructing and proving a conspiracy to commit murder under an indictment charging first-degree murder. State v. Holloway, 355 Mo. 217, 195 S.W.2d 662 (cited by the Missouri Supreme Court) states:

(P)roof that appellant and others conspired together to commit an unlawful act and that the killing occurred in furtherance of the conspiracy may be shown under an indictment or information charging first degree murder only.

Petitioner next contends that he was deprived of effective assistance of counsel at two critical stages of his trial and that he did not knowingly or competently waive such assistance at any time. These times were while he was being interrogated by the police and at his first arraignment.

Factually, there were two arraignments. The first was instituted by the prosecuting attorney on an information in the magistrate court. There petitioner demanded counsel, and shouted out in the courtroom for counsel, but his request was denied. A plea of not guilty was entered for petitioner. Preliminary hearings were held as required by V.A. M.S., § 544.250. Petitioner was later rearraigned on an indictment returned by the grand jury of Cole County, and at that time counsel was appointed for him. Petitioner contends that this late appointment of counsel resulted in the denial of effective assistance of counsel under the standard of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

The failure to appoint counsel at interrogation has been established as a denial of due process by Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. However, these cases are not retroactive (Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882) and do not control here.

The more serious question concerns the failure to appoint counsel at the time of the first arraignment, which petitioner claims resulted in denial of due process. Petitioner cites Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed. 2d 114; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; and Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5, as authority. The Missouri Supreme Court in their opinion 449 S.W.2d 634 distinguished the latter two cases by stating that "(t)here is no factual similarity in this and any of the cited cases * * * (citing White v. Maryland, supra, and Arsenault v. Massachusetts, supra) in which there were pleas of guilty at the preliminary or `at a probable cause hearing' and the pleas were introduced in evidence upon jury trials." However, in Hamilton v. Alabama, from which the holdings in White and Arsenault were drawn, the petitioner, at arraignment without counsel being appointed, pled not guilty. The Supreme Court held that the arraignment is a critical stage in a criminal proceeding, and the failure to appoint counsel to represent the defendant at that time is a denial of due process. The court stated 368 U.S. at page 55, 82 S.Ct. at page 159:

When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted. (Citing cases.) In this case * * * the degree of prejudice can never be known. Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.

The respondent and the Missouri Supreme Court opinion state that no infringement of rights occurred for two reasons. The first is that "There is neither claim nor proof that anything done or said at any preliminary hearing or in any medical or mental examination was employed against Stidham or that the state even secured any relevant information." (449 S.W.2d at 639.) More decisive, according to the court, is the fact that Stidham was not prosecuted by information (under which the preliminary hearings had been held) but rather by an indictment returned on November 23, 1954. "Thus there was no occasion or place for a preliminary hearing." Petitioner, along with his six co-defendants, were arraigned under the information on September 29, 1954; the information was dismissed and the indictment was returned on November 23, 1954. On this date counsel was appointed, and petitioner was rearraigned with the presence of counsel on December 6, 1954.

The important question is whether the arraignment and preliminary hearing are critical stages in the proceedings in Missouri. Under Missouri law, a defendant is not required to assert any right, plea or defense at the arraignment in order to preserve any statutory or constitutional rights. (V.A.M.S., § 546.020) Moreover, all rights, pleas or defenses are preserved inviolate. In State v. Benison (Mo.Sup.) 415 S.W.2d 773, it was held that the absence of counsel during arraignment is not, per...