Turner v. Housewright

• Decision Date: 20 December 1984
• Docket Number: No. CV-R-82-271-ECR.,CV-R-82-271-ECR.
• Citation: 599 F. Supp. 1358
• Parties: Roosevelt TURNER, Petitioner, v. Vernon HOUSEWRIGHT, Respondent.
• Court: U.S. District Court — District of Nevada

599 F. Supp. 1358

Roosevelt TURNER, Petitioner, v. Vernon HOUSEWRIGHT, Respondent.

No. CV-R-82-271-ECR.

United States District Court, D. Nevada.

December 20, 1984.

COPYRIGHT MATERIAL OMITTED

N. Patrick Flanagan, III, Asst. Federal Public Defender, Reno, Nev., for petitioner.

Richard Bryan, Atty. Gen., State of Nevada, Carson City, Nev., for respondent.

ORDER

EDWARD C. REED, Jr., District Judge.

Roosevelt Turner petitions this Court under 28 U.S.C. § 2254 for a writ of habeas corpus. Presently incarcerated at the Nevada State Prison, Turner was convicted of two counts of kidnapping, two counts of robbery, and one count of burglary. This Court, by order dated June 16, 1983, appointed counsel to represent Turner on his petition.

In support of his petition Turner argues: (1) that at an alleged interrogation by a police officer he did not receive his Miranda rights; (2) that he was denied counsel at a critical stage of the proceedings; (3) that the testimony of an unrelated crime was not only erroneously admitted into trial, but that the trial court failed to give a limiting instruction regarding the testimony to the jury; (4) that a police detective continued to interrogate him following his invocation of his Miranda rights; (5) that he was denied effective counsel at his trial; (6) that there was insufficient evidence to support the jury's verdicts; (7) that the charges of kidnapping and use of a deadly weapon were merely incidental to the charge of robbery and, therefore, merged into the charge of robbery; (8) that the trial court failed to instruct the jury on the essential elements of robbery; (9) that the state unconstitutionally withheld evidence from Turner of an alleged statement made by him; and (10) that the absence of a material witness denied him a fair trial.

These issues were properly raised before the Nevada Supreme Court. Thus, Turner has exhausted his state remedies. See Hall v. Sumner, 682 F.2d 786, 788 (9th Cir.1982).

Although Turner did not request an evidentiary hearing, this Court considered those factors which would require one to be held. See Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963). The record before this Court adequately provides the necessary information and thus no evidentiary hearing is required.

Facts

Following a jury trial, Turner was convicted of two counts of robbery, two counts of kidnapping, and one count of battery with the intent to commit robbery, each with the use of a deadly weapon.

One night, at approximately 11:30 p.m., the two victims were forced, at gunpoint, to admit Turner and his cohort into their house in Las Vegas. Turner and his companion were later joined by a third intruder. During the lengthy ordeal which followed, the victims were tied, threatened with death, moved to various rooms throughout the residence, and physically harmed. Under coercion, the victims revealed the location of their money and jewelry. Turner and his companions left the victims' house only after coercing a promise from one of the victims to obtain more money.

Analysis

Turner first contends that at an interview at the police station, the police detective failed to advise him of his rights. Following consultation with his attorney, Turner went to the police station to recover his personal effects. When Turner arrived, he was asked to wait for a Detective Jordan. Detective Jordan took Turner to an interview room.¹ To determine the admissibility of the contents of this conversation, the trial judge held a hearing outside the presence of the jury. At that hearing, there was conflicting testimony between Detective Jordan and Turner. Detective Jordan testified that he gave Turner his Miranda rights. Record, Vol. 3, at 423. Turner, on the other hand, testified that he was not given any of his Miranda rights by Jordan. Record, Vol. 3, at 435. The trial court found as a matter of fact, that Turner had been given his Miranda rights.

Turner asks this Court to reject the factual finding by the state court that Detective Jordan gave Turner his Miranda rights. But 28 U.S.C. § 2254 requires that this Court accord factual determinations a "presumption of correctness," unless one of a number of special conditions is met.² Sumner v. Mata, 449 U.S. 539, 549-550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981).

Turner has not claimed that any of the special conditions is present in this case. Nor does evidence of the presence of any of the conditions appear in the record. This Court can reject the factual finding only if Turner provides "convincing evidence" that the finding was erroneous. See Id; 28 U.S.C. § 2254(d). He has not met that burden. The only evidence he seems to rely on is his testimony at the hearing that he was not given the Miranda rights. However, the trial court heard the witnesses, Jordan and Turner, and found that Jordan had in fact given Turner his Miranda rights. Therefore, we reject Turner's claim. See also Wicker v. State, 95 Nev. 804, 805, 603 P.2d 265, 266 (1979) (where there is conflicting testimony, the factfinder's determination will not be disturbed where there is substantial evidence to support it.)

Turner next argues that he was denied his constitutional right to counsel at a critical stage of the proceedings. Turner again bases this argument on the interview with Detective Jordan. As previously discussed, Turner was advised of his right to counsel. The record reveals that Turner did not request counsel. Turner voluntarily came to the police station and was allowed to leave unhindered after the interview.

There is not an issue here as to whether this was a "custodial interrogation" triggering Miranda. Turner received his rights. Rather the issue is whether Turner's statements were voluntary. See Taylor v. Cardwell, 579 F.2d 1380, 1382 (9th Cir.1978). The trial court found that Turner's statements were voluntary. This finding followed a full and fair hearing by the state court. Further, it has substantial support in the record. In applying the facts to the legal standard, this Court finds that Turner's spontaneous statement was voluntary. Thus, this claim does not justify habeas relief.

Turner contends that the trial court erroneously admitted testimony of an unrelated crime and failed to give a limiting instruction as to that testimony. Turner complains of testimony of a sexual assault committed by one of his cohorts. The acts described took place during the four-hour ordeal. It would have been impossible to extract that testimony relating to the sexual assault from the victim's recount of what happened to her that night. Turner's own counsel stated, "... I suppose it would be almost an impossibility to extract out from those matters what she is about to get into that pertain to Mr. Golden (the man accused of the assault)..." Record, Vol. 3, at 190.

In addition, this Court reviewed the instructions as a whole. The failure to give a limiting instruction on this testimony did not deny Turner's due process rights. See Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The victim was explicit that the sexual assault was committed by Golden. Record, Vol. 3, at 291-294. Further, she testified that Turner was not in the same room. Id. Turner was not unconstitutionally prejudiced. Turner simply challenges the correctness of the state evidentiary rulings and the jury instructions. He has not alleged any deprivation of federal rights which would entitle him to habeas relief. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983). Thus, this argument does not support habeas relief.

Turner's next argument rests again on the interview that took place at the police station. Turner argues that while at the police station to retrieve his property, the police officer connected with the investigation of the crimes continued to press him after he had invoked his intent and desire not to talk about the case.

The Nevada Supreme Court found that the continued questioning of Turner did violate Turner's constitutional right to remain silent. Turner v. State, 98 Nev. 243, 246, 645 P.2d 971, 972 (1982). However, under the law announced by the U.S. Supreme Court in Solem v. Stumes, ___ U.S. ___, 104 S.Ct. 1338, 99 L.Ed.2d 579 (1984), this Court finds that it was not constitutional error.

The Supreme Court held in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1982) that once a suspect has invoked the right to counsel any subsequent conversation must be initiated by him. Applying Edwards to this case, it is clear that Turner's rights were violated. However, Edwards is not to be applied retroactively. Solem, 104 S.Ct. at 1345. In Solem, the Court found that the effect of further interrogation by the police after a request for counsel was not such as to taint the truth worthiness of the subsequent inculpatory statement and, therefore, Edwards was not to be retroactively applied in collateral review of final conviction. Id. The trial in this case took place in August, 1979, well before Edwards. Therefore, under the prior cases of the Supreme Court, Turner's constitutional rights were not violated. Id. This Court must, however, determine whether the Ninth Circuit standard was met. Id. 104 S.Ct. at 1346. Prior to Edwards, the Ninth Circuit did allow statements by a defendant after there has been a request for counsel. See United States v. Rodriguez-Gastelum, 569 F.2d 482, 486 (9th Cir.1978) cert. denied 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978). In addition, a lesser standard is applied where, as here, the suspect only indicates an intention to invoke this fifth amendment right to remain silent and does not clearly invoke his right to counsel. Michigan v. Mosley, 423 U.S. 96, 104 n. 10, 96 S.Ct. 321, 326 n. 10, 46 L.Ed.2d 313 (1975); in accord Christopher v. State of Fla., 582 F.Supp. 633, 644 (1982). The conduct by Detective Jordan was acceptable under prior cases in the Ninth...