Edward Fields v. Donald Wyrick

682 F.2d 154

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 28, 1982
• Docket: 81-1245
• Status: Published

Opinions

HEANEY, Circuit Judge.

Edward Fields appeals from the district court’s denial of his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. We reverse the lower court on the ground that Fields’ state court conviction was obtained as a result of his involuntary confession. Federal habeas corpus relief, therefore, should have been granted.

Fields, a soldier then stationed at Fort Leonard Wood, was charged with raping a Waynesville, Missouri, woman on September 21, 1974. He was convicted by a jury on March 13, 1975, and wasN sentenced to twenty-five years imprisonment. His conviction was affirmed on appeal. State v. Fields, 538 S.W.2d 348 (Mo.Ct.App.1976).

Fields subsequently filed three successive motions to set aside his conviction under Rule 27.26 of the Missouri Rules of Criminal Procedure. These motions were denied. Fields v. State of Missouri, 596 S.W.2d 776 (Mo.Ct.App.1980); Fields v. State of Missouri, 572 S.W.2d 477 (Mo.1978). Fields then sought a writ of habeas corpus, citing various grounds allegedly justifying relief. Only one of these asserted errors concerns us on appeal, i.e., Fields’ contention that the trial court erroneously admitted testimony regarding his “involuntary confession.”¹

Our recitation of the circumstances leading up to Fields’ confession relies primarily on facts either stipulated to by the parties at the suppression hearing or as set out in the court’s opinion affirming Fields’ conviction on direct appeal. Fields was arrested on September 25, 1974, and charged with rape. He was released on his own recognizance and retained private defense counsel. After discussing the matter with his counsel and a military attorney, Fields consented to the administration of a polygraph examination in connection with the rape charge. The examination was conducted on December 4, 1974, by Jesse Merl Bourne, Jr., an agent with the United States Army Criminal Investigation Division (CID) at Fort Leonard Wood. Although an attorney is allowed to be present during a CID polygraph examination, Fields’ counsel was not invited to be present, nor was he informed that the test would be given that day. Before the polygraph examination was given, Fields was advised that he had the right to remain silent and to have an attorney present, and he signed a written form consenting to the examination.

After the examination was completed, Bourne told Fields that there “had been some deceit” and asked him if he had some explanation as to why his answers were bothering him. Fields thereupon stated that he had had intercourse with the victim on September 21, 1974, but that she had instigated and consented to the contact. Bourne then asked Fields if he wished to discuss the matter further with another CID agent, Charles Fann, and the Waynes-ville Chief of Police, James Cole. Fields agreed to do so. Police Chief Cole gave Fields the Miranda warnings before questioning him. Fields repeated to Cole and Agent Fann his account of what happened on September 21, i.e., that the victim had voluntarily engaged in sexual relations with him at her residence.

Fields sought to suppress the testimony of Police Chief Cole and Agents Bourne and Fann regarding his “confession” to voluntary intercourse. On the day of Fields’ trial, a hearing was held on Fields’ motion, at the conclusion of which the trial court stated the following:

Well, I’m going to overrule the Motion to Suppress for the reason that this defendant on several occasions was advised what his rights were.

It’s true that he was represented by counsel and he talked to counsel about it. And while I’m inclined to believe that we ought to make every effort to protect the rights of individuals, grant them their constitutional rights, still, after the defendant is advised not on one occasion, but on several occasions, what his rights are, then he voluntarily requests and puts himself in position for making statements which — with the understanding that they might be used against him, I think that in this case that he waived those rights and I would have to overrule the Motion to Suppress.

The trial court did not enter written findings of fact or conclusions of law on the motion to suppress.

The propriety of this ruling was the sole issue raised in Fields’ direct appeal of his conviction. The Missouri Court of Appeals stated that Fields’ pleadings or briefs did not preserve anything for appellate review, but went on to “briefly” consider Fields’ constitutional claim under a “plain error” standard. State v. Fields, supra, 538 S.W.2d at 349-350. The court concluded that the motion to suppress was properly denied because “defendant had been repeatedly and amply advised of his rights [and] voluntarily, knowingly and intelligently waived his rights.” Id. at 350.

We are mindful of the Supreme Court’s recent admonition that in federal habeas corpus proceedings the court must apply a “presumption of correctness” to factual determinations made by the state courts. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722, 731 (1981). The applicable statute provides that this “presumption of correctness” applies to a state court’s “determination after a hearing on the merits of a factual issue * * * evidenced by a written finding, written opinion, or other reliable and adequate written indicia.” 28 U.S.C. § 2254(d). The presumption does not, of course, attach to a state court’s resolution of a question of federal law or to “a mixed determination of law and fact that requires the application of legal principles to the historical facts of [a] case.” Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980)² As the Supreme Court has noted, the question of whether or not a defendant has effectively waived his constitutional rights is not one of fact but of federal law. See Brewer v. Williams, 430 U.S. 387, 397 n.4, 97 S.Ct. 1232, 1238 n.4, 51 L.Ed.2d 424 (1977). Accordingly, we have accepted those “basic, primary or historical facts”³ determinated by the state courts,⁴ while independently reviewing the legal conclusion drawn therefrom.

After a careful review of the record and the state court’s findings, we conclude that Fields did not knowingly and intelligently waive his right to have counsel present at the interrogation described above. Fields’ incriminating statements were, therefore, not voluntarily made and should have been suppressed.⁵

It has been clear since Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that “the right to have counsel present at [an] interrogation is indispensable to the protection of the Fifth Amendment privilege” against self-incrimination. Id. at 469, 86 S.Ct. at 1625. This aspect of the Miranda ruling reflects the Court’s concern that “the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators.” Id.

M The importance of the right to have counsel present during a custodial interrogation has recently received renewed emphasis. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that once a suspect invokes his right to counsel, he is not subject to further interrogation until counsel is provided to him, unless the suspect himself initiates dialogue with the authorities. In so ruling, the Court apparently sought to buttress the right to counsel by creating a per se rule restricting the circumstances under which a court can find that the right has been waived. See Note, Edwards v. Arizona: The Burger Court Breathes New Life Into Miranda, 69 Cal.L.Rev. 1734, 1746-1747 (1981). Objective criteria controls the waiver determination when a suspect has invoked the right to counsel: either counsel must be present at subsequent custodial interrogations or else the dialogue at issue must have been initiated by the accused.

The per se rule enunciated in Edwards does not resolve the issue present here. Fields and his counsel mutually agreed that Fields should take the polygraph examination, Fields appeared at the examination without his counsel and stated that he did not want counsel present during the examination. Fields thereby “initiated” further dialogue with the authorities after his right to counsel had been invoked. Accordingly, the question of whether Fields waived his right to have his counsel present at the subsequent interrogation becomes more complex. The Edwards Court stated that

if * * * in the course of a meeting initiated by the accused, the conversation it not wholly one-sided [and] the officers * * * say or do something that clearly would be “interrogation” * * * the question would be whether * * * the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.

Edwards v. Arizona, supra, at 486 n.9, 101 S.Ct. at 1885 n.9, 68 L.Ed.2d at 387 n.9.⁶ The burden of proving that a defendant has knowingly and voluntarily waived his right to have counsel present at an interrogation rests with the government, and the Supreme Court has characterized that burden as a “heavy” one. See Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. at 1628.

Regardless of whether the Edwards per se rule is strictly applicable, the clear import of the Edwards decision is to affirm that a defendant’s right to have counsel present at custodial interrogations must be zealously guarded, particularly when the defendant has retained counsel and thereby has expressed a desire to deal with the authorities through counsel. We cannot find that the government proved a knowing and intelligent waiver in this case without significantly undermining that principle.

In our view, the right to have counsel present is especially crucial where, as here, the authorities utilize the “results” of a polygraph examination to elicit incriminating statements from the accused. It has been suggested that the primary utility of polygraphs administered in the course of a criminal investigation is to induce confessions from the accused. See Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector, 214-215 (1981).⁷ This Circuit has refused to admit the results of unstipulated polygraph examinations into evidence because “the polygraph does not command scientific acceptability and * * * is not generally believed to be sufficiently reliable in ascertaining truth and deception to justify its utilization in the trial process.” United States v. Alexander, 526 F.2d 161, 164 (8th Cir. 1975). Accord, United States v. Masri, 547 F.2d 932, 936 (5th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); United States v. Skeens, 494 F.2d 1050, 1053 (D.C.Cir.1974). See DeMartino v. Weidenburner, 616 F.2d 708, 713 (3rd Cir. 1980); United States v. Russo, 527 F.2d 1051, 1058-1059 (10th Cir.), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 831 (1976). The Missouri state courts refuse to allow any polygraph examination results into evidence at trial, even if the parties have stipulated to the use of such evidence. See State v. Biddle, 599 S.W.2d 182, 191 (Mo.1980) (en banc); State v. Weindorf, 361 S.W.2d 806, 811 (Mo.1962).

The Missouri Supreme Court recently stated that

[gjiven the large margin of error stated by some experts and the disagreements among the experts as to the polygraph’s reliability, a stipulation as to the admissibility of its results is, in effect, an agreement to rely upon chance rather than upon competent evidence, as well as an agreement regarding scientific opinion beyond the competence of either party to understand or evaluate.

State v. Biddle, supra, 599 S.W.2d at 190 n.10.

The questionable reliability of so-called “lie-detectors”⁸ does not, however, diminish the significant psychological impact the device can have on the examinee. See Lykken, supra, at 211-212. It may seem futile to maintain silence in the face of the examiner’s statement that the machine, cloaked with the mystique of scientific infallibility, has shown the accused to be lying. Furthermore, the examiner is not likely to be challenged by the accused when he indicates that the machine has shown “some deceit;” the accused, and frequently the court reviewing the circumstances of a polygraph-induced confession, has no way of knowing what, in fact, the test results revealed.⁹

We do not, of course, imply that the use of a polygraph and its “results” is the kind of “trickery” that necessarily renders post-test confessions involuntary. We merely hold that because of the significant potential for abuse inherent in a post-polygraph interrogation, the courts must be particularly cautious about finding that a suspect has “waived” his right to have counsel present at such an interrogation.

There is no question that Fields waived his right to have counsel present while the examination itself was being conducted. Fields was advised that he did not have to answer any of the examiner’s questions and that he could have an attorney present at the examination. Prior to the beginning of the polygraph examination, Fields stated that he did not want a lawyer present and signed a written consent to the examination. This fact is not sufficient to meet the government’s burden to prove that Fields knowingly and intelligently waived his right to have counsel present at the post-test interrogation.

The line we draw is not an artificial one. In Henry v. Dees, 658 F.2d 406 (5th Cir. 1981), the Fifth Circuit held that the defendant’s waiver of his constitutional right to remain silent and have counsel present during a polygraph examination did not extend to questions propounded by the examiner after the defendant was “off” the polygraph machine. The defendant, Gilbert Henry, with his counsel present, had signed written consent forms waiving his constitutional safeguards for the duration of the polygraph examination and stipulating to the admissibility of any statements of guilt procured by the examiner during the examination. The examiner, administering the examination without defendant’s counsel present, interrupted his questioning, informed the defendant that he had “failed” and asked did he “want to tell me about the thing?” The court concluded that the incul-patory statements made by the defendant in response to that inquiry were not, under the totality of the circumstances, freely and voluntarily made and, therefore, should have been suppressed. Id. at 408-409.

In refusing to extend Henry’s examination consent to the post-test questioning, the Fifth Circuit noted that “[n]either Henry nor his counsel contemplated that the instruments they signed exposed Henry to questioning which was not an integral part of a polygraph examination.” Id. at 410. There is similarly no evidence that Fields or his lawyer anticipated that the CID officer would attempt to elicit incriminating statements from Fields after the examination was run. Fields’ lawyer stated at the suppression hearing that he and the defendant only wanted a “polygraph to be run and that we be given results.” It was his understanding that “the running of the polygraph would have merely shown deceit or non-deceit and would have been used for the purposes of a possible pretrial negotiation.” ¹⁰ Agent Bourne, the polygraph examiner, did not attempt to dispel this mistaken impression before the examination began. Bourne testified that he did not inform Fields that if the machine indicated that his responses were deceitful that Bourne would continue the questioning “to find the truth.” Nonetheless, Fields “was subjected to interrogation of a[n] [investigative] officer, out of the presence of his counsel, and without the benefit of meaningfully timed Miranda warnings.” Id. (emphasis added). “The [officer] moved from administration of a polygraph examination to police interrogation without pausing to remind [the defendant] of his privilege against self-incrimination and his right to have counsel present during questioning.” Id. at 409.¹¹ As a result, the officer obtained highly incriminating admissible testimony from the defendant, instead of merely determining the results of the polygraph examination—results which could not have been introduced at Fields’ trial. See State v. Biddle, supra, 599 S.W.2d at 191; State v. Weindorf, supra, 361 S.W.2d at 811.

Because we hold that Fields’ consent to the polygraph did not constitute a waiver of his right to have counsel present at the post-test interrogation,¹² we then must inquire whether he subsequently waived this right.¹³ The government has simply introduced no evidence from which we can conclude that when Fields was confronted with the accusatory statement that the “lie-detector” showed he was lying, he waived his right to the protection of counsel in this coercive situation.

After Fields “confessed” to Agent Bourne, he was requestioned by Police Chief Cole and CID Officer Fann. This questioning was preceded by Miranda warnings. These warnings, however, could hardly be considered “meaningfully timed.” Fields had already told Bourne his version of the events of September 21, 1974, a story that was merely repeated to the other officers. Cole’s and Fann’s testimony at trial regarding the substance of Fields’ “confession” was cumulative. Therefore, even if we were to consider the belated warnings to be sufficient evidence that Field voluntarily, knowingly and intelligently waived his right to have counsel present, the warnings — and the alleged waiver — simply came too late.

We note that the troublesome circumstances of this case could have been easily avoided. If the polygraph did, in fact, detect physiological responses by Fields that the examiner associated with deceitful testimony, it would have been a simple matter for him to contact Fields’ counsel before proceeding to interrogate the defendant. This action, of course, was not constitutionally commanded. But it would have prevented the situation we are presented with here — a defendant, in the absence of his retained counsel, giving key inculpatory testimony to an investigative officer, without any indication in the record that he knowingly and intelligently waived his right to have his counsel present.

For the reasons set forth above, we remand to the district court with directions to it to order the state to either release the appellant or afford him a new trial. The district court shall fix a reasonable time period within which the state must provide this relief.

1 . Fields also claims that he was denied effective assistance of counsel at his trial, on direct appeal, and in perfecting his 27.26 motions; that the warrant causing his arrest lacked probable cause; and that the jury which convicted him was selected in a manner which systematically excluded women and blacks. Because we agree that Fields’ confession was involuntary, we need not reach the other issues raised in his habeas petition.

2 . The dissent in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), seems to suggest that the majority has eroded this principle by holding that the Sumner appeals court had not complied with § 2254(d) even though the ruling at issue was a disagreement with the state court “over the constitutional significance of the facts of the case, and not over the facts themselves.” Sumner v. Mata, supra, 449 U.S. at 557, 101 S.Ct. at 774, 66 L.Ed.2d at 737. We are not inclined to read more into the majority opinion than is clear from its holding — i.e., that a federal court considering a habeas petition can overturn the factual findings of a state trial or appellate court only if, in the opinion granting the writ, the court clearly states why it considers any of the eight “exceptions” to the § 2254(d) “presumption of correctness” to be applicable. Id at 552, 101 S.Ct. at 771, 66 L.Ed.2d at 734. The majority explicitly reasserted that “even a single federal judge may overturn the judgment of the highest court of a state insofar as it deals with the application of the United States Constitution or laws to the facts in question.” Id. at 544, 101 S.Ct. at 768, 66 L.Ed.2d at 729.

3 . Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980).

4 . As we have noted, the trial court did not enter evidentiary findings and the appellate court merely provided a brief explication of some of the circumstances leading up to Fields’ confession. Because we find that no part of the .appeals court’s version of the relevant events is inconsistent with our conclusion that the confession was involuntary, we need not reach the issue of whether section 2254(d)’s strictures apply to that court’s brief, “plain error” review of Fields’ claim. Cf. Sumner v. Mata, supra, 449 U.S. at 545, 101 S.Ct. at 768, 66 L.Ed.2d at 730 (§ 2254(d) applies to state appellate court findings made after plenary consideration of petitioners’ claim, including review of state court record).

5 . There is no question that Fields’ “confession” was material to his conviction because, if believed, it definitively established that Fields had intercourse with the victim on the day of the rape. The rape victim never saw her assailant, except for his hand, because her face was covered by a pillowcase throughout the assault. When asked at trial if the defendant’s hand was the one she saw that day, the victim replied “no.”

6 . The fact that Fields “initiated” the meeting with the authorities does not render the resulting interrogation “noncustodial,” as the state seems to suggest; it merely changes the standard by which the existence vel non of a waiver is determined. Nor was the interrogation “noncustodial” simply because Fields was not in jail at the time the polygraph was run. Fields had been arrested on the rape charge, and was released on his own recognizance only under the condition that his company commander know where he was at all times.

7 . Professor Lykken cites, for example, the experience of the Los Angeles Police Department polygraph laboratory. Their examiners estimate that they obtain confessions from twenty-five percent of the suspects subjected to polygraph tests. Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector, 208 (1981).

8 . As this Court noted in United States v. Alexander, 526 F.2d 161, 165 (8th Cir. 1975),

[tjhere is no “lie detector.” The polygraph machine is not a “lie detector,” nor does the operator who interprets the graph detect “lies.” The machine records physical responses which may or may not be connected with an emotional reaction and that reaction may or may not be related to guilt or innocence.

quoting, H.R.Rep.No.198, 89th Cong., 1st Sess. 13 (1965). See Lykken, supra, at 55-62.

9 . That was the case here: the results of Fields’ polygraph examination were not part of the record before the district court or on appeal.

10 . Fields consented to the polygraph examination because it was his and his commanding officers’ hope that a “successful” polygraph examination of Fields would encourage the authorities to drop the charges against Fields so that he could graduate and transfer out with the rest of his basic training class.

11 . In response to questioning by the state’s attorney, Bourne testified:

Q. After the polygraph examination was done, did you have any further conversations with this man?

A. Yes sir.

Q. Did you indicate to him that he did not have to make any further statements other than what he had already done on the polygraph examination?

A. No sir, we continued to discuss it.

12 . The Missouri Court of Appeals, in its opinion affirming Fields’ conviction, erroneously considered Fields’ consent to the polygraph to be sufficient evidence of knowing and intelligent consent to the post-test interrogation. The court bolstered its consent finding by stating that Fields testified that before the test began he was read his rights and “I understood it to be that I didn’t have to make any statements, do anything without my counsel being present.” The transcript reveals, however, that Fields in fact stated that at the time of his arrest, he understood that he did not have to make any statements before he retained counsel and had him or her present. As the Supreme Court has noted, “waiver requires not merely comprehension but relinquishment.” Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). Miranda warnings successfully imparted to Fields at the time of his arrest no more constitute conclusive evidence of a post-polygraph waiver than does the fact that Fields waived his right to protection of counsel during the examination.

13 . In our view, neither the Henry v. Dees decision, nor ours in the instant case, is inconsistent with our Court’s opinion in United States v. Little Bear, 583 F.2d 411 (8th Cir. 1978). Little Bear, under investigation for the manslaughter of her husband, agreed to take a polygraph examination. Before the examination began, she signed a written consent form. She therein stated that she was consenting to an interview with the FBI, a part of which was to be the polygraph. The examiner attached the apparatus to Little Bear, and asked her if she had stabbed her husband. She responded in the affirmative and said she wanted to talk about it. The polygraph was removed and Little Bear confessed. The Court held that the confession was voluntarily made.

A number of factors distinguish Little Bear from the situation present here. Of primary importance is the fact that Little Bear had not retained counsel when she went to take the polygraph. Accordingly, the Court was not required to determine whether the agents’ procedure had deprived Little Bear of a previously asserted right to deal with the authorities through counsel.

Furthermore, Little Bear expressly consented to an interview that was not confined to questions propounded as part of the polygraph examination. There was no question then of whether the examiner had improperly exceeded the scope of what Little Bear had consented to. Finally, and relatedly, Little Bear’s “confession” was prompted by the examiner’s first and only question propounded while she was on the machine. She was not subjected to “post-test” interrogation prompted by alleged deceitful responses.