Tyler v. Swenson

Decision Date12 June 1970
Docket NumberNo. 20090.,20090.
Citation427 F.2d 412
PartiesBilly Joe TYLER, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Billy Joe Tyler, pro se.

John C. Danforth, Atty. Gen., Jefferson City, Mo., and Dale L. Rollings, Asst. Atty. Gen., on brief for appellee.

Before MATTHES, LAY and HEANEY, Circuit Judges.

LAY, Circuit Judge.

Appeal is made from the denial of a petition for a writ of habeas corpus under 28 U.S.C.A. § 2254 by the district court. The narrow issue upon appeal is whether the federal district court committed error in accepting the determination and findings of the state court and in otherwise refusing an evidentiary hearing to petitioner.

The facts may be briefly set out. On March 15, 1965, petitioner, contrary to advice of his counsel, pleaded guilty in state court to four separate charges — two of assault with intent to kill, and one each of first degree robbery and carrying a concealed weapon. He was sentenced to 20 years in the Missouri penitentiary. Thereafter, pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R., petitioner filed an application for post-conviction relief alleging that his guilty plea was involuntarily made. As authorized by Rule 27.26, an evidentiary hearing was held before the trial judge who had accepted petitioner's guilty plea.

At the evidentiary hearing petitioner testified that prior to his guilty plea the trial judge, in chambers, discussed with petitioner the alternatives of going to trial and pleading guilty. According to petitioner, the judge made a threat that petitioner would receive a 50-year sentence if found guilty by a jury as compared with a 20-year sentence if he would enter a guilty plea. Petitioner's mother and his attorney, who had represented him when he pled guilty, both testified at the evidentiary hearing and corroborated petitioner's testimony regarding the threat made by the trial judge. The prosecuting attorney, as a witness for the state, verified that the conference between petitioner and the trial judge had occurred and that the judge had told petitioner of the 20-year sentence in the event he would plead guilty. However, he could not remember whether or not the judge had said anything about a 50-year sentence.1

Throughout the hearing the trial judge, by his questioning of the witnesses and by his statements from the bench, interjected his own recollection of the events surrounding petitioner's guilty plea. At one point in the hearing the judge and petitioner's trial counsel, Clement Kieffer, became engaged in a dispute as to whether petitioner had employed another attorney, one who had failed to appear, to defend him on three of the charges. So heated was the controversy as to their respective recollections of the facts, that Kieffer was ultimately held in contempt of court. At another point in the hearing, after testimony by petitioner's mother, as to what occurred in her presence in the judge's chambers, the trial judge made a statement that petitioner's mother in fact had never even been in the court's chambers. In his findings, the trial judge found that the events had not taken place as petitioner and the other witnesses had testified.

After denial in state court of his post-conviction application to withdraw his plea, petitioner appealed to the Supreme Court of Missouri. The Supreme Court of Missouri affirmed the judgment below, holding, in essence: (1) that the finding that the petitioner's plea was not involuntarily made, was not clearly erroneous, (2) that although a judge should not ordinarily participate in plea discussion,2 to do so did not result in abuse here, and (3) that it was not error for the trial judge to hear the post-conviction motion, since (a) there was no motion filed by the defendant to disqualify the trial judge, and (b) the judge himself did not actually take the stand and testify as a witness. State v. Tyler, 440 S.W.2d 470 (Mo.1969). The Missouri Supreme Court observed that "the evidence was sufficient to support the finding of the judge that the statement attributed to him was not made. Obviously that was his recollection." 440 S.W.2d at 475. (Emphasis ours.)

The federal district court, relying upon the state trial judge's findings and determination, and the affirmance of those findings by the Missouri Supreme Court, as well as upon its own determination from the evidence, denied the petition without further hearing.

Under 28 U.S.C.A. § 2254(d) as amended (Supp. 1959-1967), the findings of the state court "shall be presumed to be correct" unless there exists some deficiency in the state court hearing. Once a fair hearing has taken place, the burden is placed upon the defendant to show that the findings are not supported by the record. This court has placed great emphasis upon the independent findings of the state trial judge as to factual disputes in post-conviction matters. See Parker v. Erickson, 423 F.2d 1021 (March 1970, 8 Cir.).3 The peculiar competence of the trial judge to resolve matters of credibility is of great weight to a reviewing court. Therefore, factual determinations as deduced from the record itself do not serve as a substitute for the findings of a trial judge who conducts the timely examinations and observes the overall manner and demeanor of the witnesses.

Assuming the state proceeding was in full compliance with the requirements of 28 U.S.C.A. § 2254(d), then the federal district court's dismissal of the petitioner's claim without an evidentiary hearing was entirely proper. Our review, therefore, is simply one to appraise the fact finding procedure in the state court to determine whether there was a "full, fair and adequate hearing." See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Hawkins v. Bennett, 423 F.2d 948 (March 1970, 8 Cir.); Roach v. Bennett, 392 F.2d 743 (8 Cir. 1968).

Petitioner's claim is that the hearing in state court was not a "full" or "fair" proceeding. Petitioner alleges that the state trial judge who conducted the hearing weighed evidence involving his own recollection and observations without petitioner having a right to confront him as a witness on cross-examination. Petitioner further asserts that the trial judge in effect then passed upon his own credibility in making the factual determination. We feel the record supports petitioner's claim of procedural deficiency.

It is true that petitioner did not call the judge as a witness or file an affidavit of prejudice against him as provided for under state rules. However, neither of these factors justifies a denial of a fair hearing under 28 U.S.C.A. § 2254(d). State procedural rules are subservient to basic requirements of due process allowing a petitioner the right to be confronted with adverse evidence, and to cross-examine the witnesses presenting such evidence. In the instant case, petitioner had no opportunity to cross-examine the trial judge since the judge did not take the stand; furthermore, petitioner had no cause to attempt to disqualify the trial judge until it became apparent after the hearing was concluded that the trial judge was going to rely upon his own recollection as an evidentiary basis for denying petitioner's claim.

We think it runs against the grain of fairness to say that the same judge may consider his own crucial testimony and recollection rebutting petitioner's claim and simultaneously pass upon the credibility of all witnesses in weighing the evidence. A member of the judiciary has no peculiar competence in factual recollection of unrecorded events. In fact, the many cases a trial judge participates in may well cloud vivid recollection of detail in a specific case. A party should be permitted to test a judge's recollection, as a witness presenting factual material testimony, as he would any other witness upon cross-examination.

It has long been recognized under similar circumstances that a judge cannot serve as a material witness as well as the trier of fact. United States v. Halley, 240 F.2d 418 (2 Cir. 1957); Terrell v. United States, 6 F.2d 498 (4 Cir. 1925); Maitland v. Zanga, 14 Wash. 92, 44 P. 117 (1896); 28 Harv.L.Rev. 115 (1914). Cf. Hale v. Wyatt, 78 N.H. 214, 98 A. 379 (1916). As was stated in Lepper v. United States, 233 F. 227, 230 (4 Cir. 1916) (concurring opinion):

"Indeed, a judge presiding at a trial is not a competent witness, for the duties of a judge and a witness are incompatible. If he testifies he would have to pass upon the competency of his own testimony; and as a witness he might be regarded a partisan, and would be subject to embarrassing conflicts with counsel. The danger to the dignity of the bench, of subjecting its impartiality to doubt and of placing the defendant at an unfair disadvantage by admitting the presiding judge as a witness is very obvious."

In the instant case, it is urged that because the trial judge did not take the stand as a witness the above rules are not applicable. However, the unfairness of this is compounded when the judge, as was done here, weighs his own recollection of events in making his findings. The Supreme Court of Missouri noted there was "evidence" to refute the claim of petitioner's mother that she was in the court's chambers. This evidence came from the lips of the trial judge in questioning the mother and serves as testimony without the right of cross-examination by the petitioner. A judge should never testify in the form of questions. Terrell v....

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62 cases
  • Russell v. Wyrick, Civ. A. No. 73CV401-W-3-R.
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    • United States District Courts. 8th Circuit. Western District of Missouri
    • July 20, 1974
    ...competency are supported by the evidence and are not clearly erroneous. Taylor v. Swenson, 458 F.2d 593 (8th Cir. 1972); Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970); Brown v. Swenson, 487 F.2d 1236, 1241 (8th Cir. 1973). Petitioner's contentions in support of ground C are without In grou......
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    • September 30, 1974
    ...evidentiary hearing held by the undersigned Judge on November 9, 1973. Taylor v. Swenson, 458 F.2d 593 (8th Cir. 1972); Tyler v. Swenson, 427 F. 2d 412 (8th Cir. 1970); Brown v. Swenson, 487 F.2d 1236, 1241 (8th Cir. 1973); Johnson v. Wyrick, supra; Russell v. Wyrick, Petitioner's reliance ......
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    • November 20, 1981
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6 books & journal articles
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • July 31, 2016
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