Thundershield v. Solem, 77-1430

• Decision Date: 13 December 1977
• Docket Number: No. 77-1430,77-1430
• Citation: 565 F.2d 1018
• Parties: Bedie THUNDERSHIELD, a/k/a Bede Thundershield, Petitioner, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, and the State of South Dakota and its officers and agents, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1018

565 F.2d 1018

Bedie THUNDERSHIELD, a/k/a Bede Thundershield, Petitioner, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, and the State of South Dakota and its officers and agents, Respondents.

No. 77-1430.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1977.

Decided Nov. 14, 1977.

Rehearing Denied Dec. 13, 1977.

William P. Fuller (made rebuttal), Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., argued and filed brief and reply brief for petitioner.

William J. Janklow, Atty. Gen., and Brent A. Wilbur, Asst. Atty. Gen. (argued), Pierre, S. D., on brief, for respondents.

Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and STEPHENSON, Circuit Judge.

STEPHENSON, Circuit Judge.

Petitioner Bedie Thundershield appeals from the dismissal of his application for a writ of habeas corpus by the district court. ¹ In support of his claim that his plea of guilty to a state charge of second degree manslaughter was not entered knowingly, intelligently, and voluntarily, petitioner raises three separate yet overlapping issues for our consideration on appeal. We have examined each claim individually and collectively as part of the totality of the circumstances. We affirm the decision of the district court.

On July 4, 1971, the body of Paul Raymond Gilchrist was found floating in a rural South Dakota lake. After receiving a statement from petitioner's wife, two Bureau of Indian Affairs (BIA) policemen questioned petitioner concerning the death of Mr. Gilchrist at Fort Yates, North Dakota, on July 19. Under questioning at Fort Yates, where petitioner was imprisoned for violation of a tribal ordinance, petitioner stated that he and his wife had been drinking at the lake with Mr. Gilchrist, after which he passed out only to be awakened by his wife's screams. Petitioner stated that Gilchrist had ripped off his wife's panties and was in the process of having sexual intercourse with her when he awoke. Petitioner stated that he then struck and kicked Mr. Gilchrist in the face, and that he had been pretty drunk and didn't know but he may have hit Gilchrist with a tire iron or other weapon. In addition, petitioner admitted that he might have thrown the body of Gilchrist into the lake.

After his conversation with the two officers, petitioner was returned to South Dakota. Petitioner was originally charged with the offense of murder. However, following a preliminary hearing on July 31, 1970, a plea bargain was arranged. It was agreed that Thundershield would be allowed to enter a plea of guilty to the crime of second degree manslaughter, which carried a maximum sentence of ten years, rather than face trial for murder, which carried a possible sentence of death. In accordance with the plea bargain, the murder charge was ultimately dismissed after petitioner entered a plea of guilty to manslaughter in the second degree on September 15, 1971.

Subsequently, petitioner corresponded with the judge who had received the plea and advised him that he had not committed the crime charged. Court was reconvened on November 2, 1971, at which time the court acknowledged receipt of the letters and informed the petitioner that he could withdraw his plea. Petitioner declined and upon reaffirmance of his desire to plead guilty to second degree manslaughter the court sentenced him to a term of nine years and nine months in the South Dakota penitentiary.

In August of 1972 petitioner applied for state post-conviction relief on the basis that his plea of guilty was not voluntarily, knowingly, and understandably made. After a hearing, which was held on July 10, 1973, the application was denied. The South Dakota Supreme Court affirmed the decision of the state trial court in State v. Thundershield, 242 N.W.2d 159 (S.D.1976).

On July 14, 1976, the petitioner filed his application for a writ of habeas corpus in federal district court. Petitioner's original appointed counsel had moved to California and was beyond the subpoena power of the district court. Therefore evidence was received through affidavits, written interrogatories, and petitioner's deposition taken in advance of the state post-conviction hearing. Petitioner was present but indicated he was content to rest his case-in-chief on his deposition. He testified very briefly in rebuttal. The denial of the application by the district court led to the filing of this appeal.

Before this court, petitioner is asserting that his plea was not entered knowingly, intelligently and voluntarily. A plea of guilty, which waives the constitutional rights of trial by jury, confrontation of one's accusers, and the privilege against compulsory self-incrimination, is constitutionally valid only if it represents a voluntary and intelligent choice among the alternate courses of action open to the defendant. ² North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 162 (1971); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Petitioner's first argument is that the plea of guilty was defective in that he refused to admit commission of the crime.

At the proceedings on September 15, 1971, where the petitioner's plea of guilty was first received, petitioner stated that he was satisfied that Gilchrist was dead. However, he did not specifically admit that he had killed Gilchrist, although he did indicate that "maybe" he had killed him. ³ During the interim between the acceptance of the plea and sentencing, the court received two letters from the petitioner which recounted his version of the incident and in effect denied commission of the crime. ⁴

When court was reconvened on November 2, 1971, the court informed petitioner that he could withdraw his plea at that time. The petitioner declined and the court was instead presented with an attorney-prepared statement signed by petitioner which was read into the record. ⁵ The statement among other things, related that petitioner did not wish to withdraw his plea of guilty; no promises or threats were made against him to plead to the charge; and that the petitioner was satisfied with his attorneys. Prior to its presentation in court, at the petitioner's request the following sentence was stricken and the change initialed: "I understand that by pleading guilty to the charge, I am admitting that I killed Paul Raymond Gilchrist." Despite the petitioner's refusal to admit committing the crime, the plea was accepted.

The district court found that this issue concerning whether petitioner's refusal to admit guilt rendered his guilty plea involuntary and invalid was controlled by the case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In Alford, the defendant was charged with murder and faced the prospect of the death penalty if that prosecution proved to be successful. Alford steadfastly insisted that he had not committed the crime, but nonetheless entered a plea of guilty to second degree murder in order to negate the threat of the death penalty. The Supreme Court in Alford held that when a person pleads guilty to a crime while protesting his innocence, the plea is not thereby rendered constitutionally invalid. The court stated:

Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

North Carolina v. Alford, supra, 400 U.S. at 37, 91 S.Ct. at 167.

Petitioner strongly urges that Alford is only applicable where evidence is presented which provides a strong factual basis for the plea. In support of this contention petitioner relies on a statement by Justice White for the majority in Alford that:

In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence, we hold that the trial judge did not commit constitutional error in accepting it.

North Carolina v. Alford, supra, 400 U.S. at 38, 91 S.Ct. at 168.

In response to this contention the district court held:

I am not willing to accept this limitation, as I believe the relevant inquiry dictated by Alford is not as to the relative strength of the state's case, but as to the motives the defendant has for entering the plea, and the nature of that plea as voluntarily and intelligently made. Here, the motive for the plea was clearly to avoid the possibility of a sentence of death or life imprisonment.

Thundershield v. Solem, supra, 429 F.Supp. at 953.

Assuming arguendo that petitioner has correctly interpreted the rationale of Alford, we nevertheless hold that it was not error for the trial court to accept petitioner's plea of guilty. It was proper for the state trial court to consider testimony concerning the petitioner's statement to the BIA officers contained in the transcript of the preliminary hearing on file with the court as part of the factual basis for the plea even though under current legal standards the statement might not be admissible at trial. Cf. Irizarry v. United States, 508 F.2d 960, 967 (2d Cir. 1974); United States v. Bethany, 489 F.2d 91 (5th Cir. 1974). At the time the plea was accepted petitioner had not moved to suppress the statement and thus it was not incumbent upon the prosecution to produce more evidence of guilt or show that the statement was properly procured. The plea of guilty operated to relieve the prosecution of its burden of proving each element of the charge beyond a reasonable doubt at trial. See Boykin v. Alabama, 395 U.S. 238, 242 n. 4, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When this statement is considered along with all the other evidence available in the case at the time the plea was...