Vidauri v. State

• Decision Date: 12 November 1974
• Docket Number: No. 57797,No. 1,57797,1
• Citation: 515 S.W.2d 562
• Parties: Joseph Manuel VIDAURI, Respondent, v. STATE of Missouri, Appellant
• Court: Missouri Supreme Court

Page 562

515 S.W.2d 562

Joseph Manuel VIDAURI, Respondent, v. STATE of Missouri, Appellant.

No. 57797.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1974.

Forriss D. Elliott By Richard A. Fredman, St. Louis, Gary R. Sarachan, Law Student (Eligible pursuant to Missouri Supreme Court Rule 13), for respondent.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for appellant.

SEILER, Judge.

Appeal by state from judgment granting relief to movant in proceeding under rule 27.26, V.A.M.R. We affirm.

Joseph Manuel Vidauri was charged by indictment in Cole County, Missouri, with murder of another inmate of the Missouri State Penitentiary, William Lee Donnell, in the riot at that institution on September 22, 1954. Six other prisoners were jointly indicted with defendant. On change of venue to St. Charles County after a severance, Vidauri was tried to a jury and found guilty and sentenced to life imprisonment. On appeal to this court, the conviction was affirmed. State v. Vidauri, 293 S.W.2d 955 (Mo.1956).

In 1968, Vidauri filed a motion under rule 27.26 in the St. Charles County Circuit court. One of the grounds was a denial of due process in using against him an alleged involuntary confession. It was on this ground that the trial court granted relief. ¹

As said, the death of Donnell occurred during a prison riot on September 22, 1954. There was a second and less violent riot one month later. Capt. (then Lt.) Barton of the highway patrol was in charge of one of the investigating teams and early in the investigation other inmates had implicated a prisoner known as 'Jap Joe' as one of those who forced their way into Donnell's cell and killed him. Barton testified at the original trial that he learned within the first five to ten days that Jap Joe was Vidauri, but at the 27.26 hearing he testified he did not obtain the information about the identity of Jap Joe until after October 22. Vidauri was not questioned until October 26, although the officers obtained signed confessions within the first two weeks from each of the other six inmates charged.

Bearing in mind that the court hearing the 27.26 motion is not confined to the earlier record, we endeavor to reduce the mass of testimony produced at the original trial, both out of and then in the presence of the jury (the entire transcript of the original trial was admitted in evidence at the 27.26 hearing), and the testimony produced at the 27.26 hearing, at follows:

Vidauri testified that he entered the penitentiary in February, 1952, age about 17, on a five year manslaughter sentence from Jackson County and at the time of the riot had, with good time credit, approximately six months yet to serve. He was of Mexican origin, with an eighth grade education. A large part of his growing up had been in various orphanages. At his trial and at the 27.26 hearing Vidauri maintained that he was coerced into signing a false confession, that he did not participate in any way in the Donnell slaying, and that he was elsewhere in the prison when it occurred.

On October 26, he was taken from his cell to the Classification room, in which there were ten to twelve troopers with rifles and shotguns. Barton was armed with a pistol. Nothing was said to Vidauri as to his right to remain silent or to have counsel, or that what he said would be used against him. Vidauri feigned inability to speak more than broken English, believing 'if I did speak English that they out . . . I didn't know anything. out . . . I didn't know anything. But it isn't a matter of whether you wanted to. It is a matter of what they demand you do.'

From the Classification room, Vidauri was taken downstairs to the Bertillon room, where there was a typewriter. (Barton testified that the confessions from the other defendants were in their own handwriting but Vidaui's was typed).

Vidauri testified that the interrogation lasted approximately six hours and that the confession was drawn up in the following manner:

'When he asked me a question which wasn't so, for example: 'You went down to B basement, didn't you' and I would tell him 'No'--I would tell him 'No, I didn't go down there'--he would say, 'What do you mean you don't know?' He would ask me, 'What do you mean 'No'.'

'I said, 'No, I didn't go down there.'

'. . .

'Well, when Lieutenant Barton asked me the question: 'You went down in B basement' and I told him 'No', he said, 'What do you mean 'No", and I turned around and saw the one with the mustache--he pointed a long gun at me and to keep the officer from getting mad I said, 'I don't know.'

'He said, 'What do you mean you don't know?' He said, 'You went down in B basement, didn't you?'

'I knew if I said 'No' that I had no chance. They told me that all they wanted was the truth and nothing but the truth. I am supposed to say 'yes', which is music to their ears--nothing but that. If I say 'No', they say 'You are lying.'

'If I say, 'I don't know,' they say, 'You are trying to hide something.'

'He said, 'You went down in B and C basement?'

'The first time I said 'No'. The second time I said 'No', I shrugged my shoulders.

'He said, 'You did go, didn't you?' I said--I was really afraid to answer. All he wanted me to say was 'Yes, I did go.'

'So I said--he started to type that down. It was the same all the way down on the statement . . .'

Sgt. Nash was typing what Lt. Barton was suggesting to Vidauri and then they wanted him to sign it. Vidauri told them he could not read English, so Barton read it to him, but Vidauri denied it was what he had said and refused to sign it. Barton told him he 'had better wise up. You are nothing but a convict in the penitentiary . . . You are just a spick and if we shoot you, who is going to question us? We are troopers. All we have to say is that you partook in the riot and no questions will be asked . . . we have orders from the Governor to shoot to kill and therefore if we shoot you who is going to ask us any questions. You better . . . go ahead and sign this thing here and then you can live a little longer or else get shot now.' Vidauri still refused, whereupon Sgt. Nash told him to remember what Barton had said about orders to shoot to kill. Vidauri was aware that six convicts had been killed and over 30 wounded, and 'figured they were going to shoot me too, so the only way out, I figured, was, I thought to myself, I will sign this thing with my left hand now and I will have a chance later on to show . . . that this thing here, this lefthanded signature, is by force . . . so I went ahead and signed it with by left hand.' ²

Vidauri testified that during the questioning in the Classification room he was hit on the ear, and when in the Bertillon room he was struck a dozen times, in the kidneys, stomach, and shins and jerked out of his chair.

Lt. Barton's testimony was that the questioning took a couple of hours or so; that he did not advise Vidauri of his right to remain silent. For the first 20 or 30 minutes Vidauri denied involvement. Barton told him he was lying, that the others implicated him and then Vidauri admitted his part in the murder and was willing to make a statement. According to Barton, Vidauri dictated the statement and Sgt. Nash typed it out as he spoke. Although the confession used in the trial was typewritten and the purpose of going to the Bertillon room was because there was a typerwriter there, Barton testified that Vidauri also wrote one confession himself in longhand, but Barton did not know what had happened to it and did not say why he would want two confessions. Barton's testimony at the original trial was that he had no recollection which hand was used to sign the confession; at the 27.26 hearing, he testified it was the right hand.

Barton offered no explanation for the number of armed troopers present during the interrogation, but said it was not because they were afraid Vidauri might escape. Lt. Barton, Sgt. Nash, and the troopers who signed as witnesses to the confession all denied that any violence, threats or promises were used. Several thought Vidauri had signed with his right hand; others had no recollection. There was general agreement that the troopers were armed with rifles or shotguns and that orders had been issued to shoot to kill.

On this evidence, the trial court made these findings:

'The Court finds as a fact that this petitioner's confession was an involuntary confession under all the facts and circumstances described in the evidence. These include:

1. The number of armed officers present.

2. The awareness of the order to shoot to kill.

3. The age, background and current imprisonment of the petitioner.

4. The denial followed by the 'confession' after a period of interrogation.

5. The manner in which the 'confession' was signed. When taken as a whole the undisputed evidence convinces this Court that the alleged confession was involuntarily given.

'. . .

'. . . this case comes within the purview of . . . Rule 27.26(i) by virtue of a denial of constitutional rights of the petitioner such as to render the judgment subject to collateral attack . . .

'For the reason set forth in its Findings of Fact and Conclusions of Law filed herein, the verdict of the jury returned September 15, 1955, and the sentence of the Court imposed October 22, 1955, in State vs. Joseph M. Vidauri, cause No. 35 of this court, are ordered set aside and petitioner is granted a new trial in said cause . . .'

A reading of the complete record leaves certain indelible imprints. It is clear that there had been a good deal of violence in the penitentiary. There was one riot on September 22, 1954 and a second one on October 22, 1954. In the quelling thereof, the highway patrol officers and men were present in force. Six inmates were killed and more than thirty wounded. Without meaning by this statement of fact to cast any aspersions on the highway patrol, the occurrence of these deaths and woundings is certain to have been known to...