James William Stidham v. Harold R. Swenson, Warden , 443 F.2d 1327 ( 1971 )

HEANEY, Circuit Judge.

On September 22, 1954, an inmate of the Missouri State Penitentiary was beaten and stabbed to death by fellow inmates during a riot in that institution. An investigation was undertaken by the prison authorities immediately after the quelling of the riot. Written confessions were eventually obtained from several inmates, including James William Stidham. Stidham’s confession was used against him in his 1955 trial in state court in which he was convicted of first degree murder.

Stidham made a number of attempts to obtain relief in Missouri courts on the ground that the trial judge did not find his confession to be voluntary, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964),¹ before submitting it to the jury. State v. Stidham, 305 S.W.2d 7 (Mo.1957); State v. Stidham, 415 S.W.2d 297 (Mo.1967); State v. Stidman, 449 S.W.2d 634 (Mo.1970). He was unsuccessful in each attempt.

On November 9, 1970, a habeas corpus petition brought by Stidham was denied by the United States District Court for the Western District of Missouri. The District Court found (1) that the trial court which initially tried Stidman had complied with Jackson, and (2) that on the basis of the undisputed facts adduced at the state trial and the subsequent state evidentiary hearing, the confession was voluntary. Stidham appeals from the denial.²

COMPLIANCE WITH JACKSON

At the initial trial, the state court heard evidence outside the presence of the jury on the voluntariness of the confession. At the conclusion of the hearing, the trial court stated:

“* * * [I]t is the Court’s opinion that the matters concerning the statement should be offered in the presence of the Jury, subject of course to any attacks as to its credibility by the Defendant. The Defendant has of course the right to proceed to challenge the voluntariness of the statement and confession, even before the Jury, but it is the Court’s opinion that upon the evidence that has been offered before the Court and outside of the hearing of the Jury, that the statement is and should be admissible in evidence, subject to further examinations of the witnesses which might be conducted * * *.

“MR. HENNELLY [Defendant’s counsel]: In other words, the Court is overruling my Motion, and request of the Court to hold as a matter of law, that those statements were involuntary, is that right?

“THE COURT: That is right.

#- * *»

The United States District Court found that this ruling comported with the requirements of Jackson v. Denno, supra, stating:

“It would be highly technical, in this day and age, to hold that the word ‘voluntary’ was a word of art and, in its absence, a conviction by a jury, after a long trial, should be set aside because the judge ruled the statement not involuntary instead of ruling that the statement was voluntary. It is the opinion of this Court that the statements and action of the judge does clearly indicate a finding of voluntariness, and is sufficient under the teachings of Jackson v. Denno, supra, and Sims v. Georgia, [385 U.S. 538, 87 S. Ct. 639,17 L.Ed.2d 593 (1967)].”

We believe that the District Court’s analysis is incorrect. It assumes that Missouri law, at the time of Stidham's trial, required the trial court to find that a confession was voluntary before permitting it to be considered by a jury. Our examination of the Missouri case law convinces us that a trial court had and frequently used the right to submit the question of voluntariness to the jury without a prior determination that the confession was voluntary.

The following statements of the preJackson-Denno Missouri procedure support this view:

“ * * * [W]hen there is substantial conflicting evidence and the question is close it is better to refer the underlying issue of voluntariness to the jury than to exclude the confession, since there is less chance of a miscarriage of justice by leaving the question open to a second determination, before the jury on a rehearing of the evidence under proper instructions, than by foreclosing the inquiry. The court then can still exclude the confession if it finds from all the evidence, including that introduced at the preliminary hearing, that the same was involuntary. * * * ”

State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88, 94 (1938).

“It is my view that we should adhere to the standard of admissibility of confessions of whether or not the particular confession is voluntary in fact. That has always been the rule of this Court. * * * [T]his is a jury question unless its involuntary character so conclusively appears that it must be held to be involuntary as a matter of law. * * * If the confession is voluntary in fact, and is true, the defendant’s rights are not violated by putting it in evidence. Some one must determine these fact issues, and our system is to leave them to the jury, when they must be decided on conflicting evidence.” (Citations omitted.)

State v. Sanford, 354 Mo. 998, 193 S.W.2d 37, 38 (1946) (concurring opinion).

“ * * * Under our system of jurisprudence it is generally left to the jury to determine whether a confession was voluntary, unless the contrary appears so conclusively that the confession must be held involuntary as a matter of law. * * *” (Citations omitted.)

State v. Laster, 293 S.W.2d 300, 304 (Mo.1956).³

Our analysis of the record of Stidham’s trial leads us to conclude that the trial judge in this ease submitted the voluntariness issue to the jury without making a prior factual determination that the confession was voluntary. His finding, that the confession was not “involuntary as a matter of law,” was not, under the then existing Missouri law, the same as finding that it was voluntary. If the trial judge does not make a factual determination that a confession is voluntary before submitting it to the jury, Jackson standards are violated. Parker v. Sigler, 413 F.2d 459 (8 Cir. 1969), rev’d on other grounds, 396 U.S. 482, 90 S.Ct. 667, 24 L.Ed.2d 672 (1970).

The Missouri Supreme Court’s treatment of this issue on Stidham’s appeals buttresses our view that the requirements of Jackson were not met. In its first Stidham opinion, 305 S.W.2d 7 (1957), the court stated:

“There is no merit in defendant’s contention that his written confession was coerced and involuntary and was admitted in evidence before the State established that it had been voluntarily given. The court conducted a full preliminary hearing on the issue, found the issue was for the jury, and later, after hearing the evidence before the jury, submitted the issue to the jury for determination. * * * On the conflicting showing the issue of the voluntariness of the confession was for the jury. * * * ” (Emphasis added.)'

In its most recent Stidham opinion, 449 S.W.2d 634 (1970), the Missouri Supreme Court examined its procedure and determined that “ * * * Missouri employs the so-called Massachusetts procedure ‘impliedly approved in Jackson v. Denno’ * * * ”. In doing so, the court relied upon State v. Washington, 399 S.W.2d 109 (Mo.1966). We point out that State v. Washington was decided after Jackson became the law, and a comparison of its standard with those enunciated in the Missouri cases, above cited, reveals the difference between the 1955 and 1966 standards.

THE VOLUNTARINESS OF THE CONFESSION

The Supreme Court recently reemphasized that a defective procedure, standing alone, is not a sufficient basis for habeas corpus relief:

“[Our decisions]⁴ did not establish that an applicant for federal habeas corpus is entitled to a new hearing on the voluntariness issue, in either the federal or state courts, merely because he can point to shortcomings in the procedures used to decide the issue of voluntariness in the state courts. Our decisions make clear that he must also show that his version of events, if true, would require the conclusion that his confession was involuntary.”

Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.E.2d 524, 529 (1971).

Stidham alleges: that he was returned to his regular Death Row cell in the early evening of September 22; that between September 22 and September 27, he was questioned intermittently by police officers and state troopers who threatened him with physical harm if he did not tell everything he knew about the murder; that between September 22 and September 27, he was able only to catch short naps while sitting on the toilet because his straw tick, on the floor, was too water-logged to be slept on as a result of his cell being flooded when rioting inmates opened water pipes; that he was giving nothing to eat from September 22 until September 29; that he weighed 184 pounds before the riot but only 159 pounds on September 29; that he was never informed of his Miranda rights ;⁵ that' on September 27, he was taken to the prison’s athletic field house and questioned in the presence of six police officers armed with pistols, rifles and riot guns; that he was questioned for approximately twenty to thirty minutes, during which time he denied involvement in the murder; that, thereafter, a rope was placed through his handcuffs and he was hung up for approximately fifteen minutes with his hands behind him; that upon his continued refusal to implicate himself, he was again hung up and beaten with corkball or baseball bats until he lost consciousness; and that he then wrote out a confession which was dictated to him.

We believe that the above version of the facts, if true, requires the conclusion that the confession was an involuntary one. See, Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936).

We emphasize that we do not decide or intimate that the allegations are true. It is not the task of the federal court to do so in state habeas corpus matters:

“ * * [T]he appropriate remedy when a federal court finds a Jackson v. Denno error in a prior state proceeding is to allow the State a reasonable time to make an error-free determination on the voluntariness of the confession at issue. * * * ”

Sigler v. Parker, supra, 396 U.S. at 484, 90 S.Ct. at 669.

We only note, as did the United States District Court, that we have examined the transcripts and other relevant materials and have found that several of Stidham’s allegations have not been contradicted in the record.

The judgment of the District Court is reversed and the case is remanded to that court for further proceedings consistent with the remedy provided for in Sigler v. Parker, supra.

1 . Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), is retroactively applicable. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Parker v. Sigler, 413 F.2d 459 (8th Cir. 1969), rev’d on other grounds, 396 U.S. 482, 90 S.Ct. 667, 24 L.Ed.2d 672 (1970).

2 . Stidham also contends on appeal that he was denied assistance of counsel at two critical stages of his trial, that he was tried and convicted on a charge not included in his indictment and that the State of Missouri knowingly used the perjured testimony of two convicts in obtaining his conviction. We affirm the decision of the District Court on each of these issues for the reasons given in that court’s memorandum opinion. Stidham v. Swenson, Civ.No. 18121-2 (W.D.Mo. May 15, 1970).

3 . See also, State v. Bridges, 349 S.W.2d 214 (Mo.1961); State v. Barnett, 338 S.W.2d 853 (Mo.1960); State v. Falbo, 333 S.W.2d 279 (Mo.1960); State v. Statler, 331 S.W.2d 526 (Mo.1960); State v. Phillips, 324 S.W.2d 693 (Mo. 1959); State v. Bradford, 262 S.W.2d 584 (Mo.1953); State v. Cochran, 356 Mo. 778, 203 S.W.2d 707 (1947); State v. Ellis, 193 S.W.2d 37 (Mo.1946).

4 . The Court was specifically referring to Jackson v. Denno, supra, and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

5 . Since the Miranda decision is not retroactive, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), this allegation, even if true, is not dispositive of the case. However, failure to warn of constitutional rights is a factor properly considered in determining the voluntariness issue. Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).