Robert Anthony WILLIAMS, a/k/a Anthony Erthel Williams, Appellee, v. Lou V. BREWER, Warden, Appellant, 509 F.2d 227

VOGEL, Circuit Judge. Appellee, Robert Anthony Williams, was found guilty by jury verdict of murder and sentenced to life imprisonment in the Iowa State Penitentiary. In a five to four decision, the Supreme Court of Iowa affirmed the conviction and denied rehearing. See State v. Williams, 182 N.W.2d 396 (1971).

After exhaustion of his state remedies, appellee filed a petition for a writ of habeas corpus in the United States District Court on the ground that certain statements made by appellee, and other evidence and testimony obtained as the result of those statements, were improperly admitted into evidence in contravention of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. In a carefully detailed and well supported opinion published as Williams v. Brewer, 375 F.Supp. 170 (1974), the District Court sustained the petition for a writ of habeas corpus.

Timely appeal was made to this court. We affirm. Evidentiary Facts. The attorneys for the parties agreed to submit the case to the District Court on the record of facts and proceedings in the state trial court. The District Court, in an exercise of its discretion, agreed to review appellee’s petition based upon the state court records. Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973), cert. denied, 411 U.S. 968, 93 S.Ct. 2158, 36 L.Ed.2d 690 (1973). The District Court accordingly made its findings of fact, upon which it based its order, without conducting further evidentiary hearings.

The following facts are unchallenged by either party: On December 24, 1968, the Powers family attended a wrestling tournament in the YMCA building in Des Moines, Iowa. When Pamela Powers, aged 10, failed to return from a trip to the restroom, a search was started. The police were called after she could not be located in the building. Appellee Williams, who had a room on the seventh floor of the YMCA building, was seen in the lobby coming from the elevator carrying some clothing and a large bundle wrapped in a blanket. He spoke to several persons on the way out, explaining to one that he was carrying a mannequin.

He requested the aid of a 14-year-old boy to open first the street door and then the door of his Buick automobile parked at the curb. This boy testified that when the appellee placed the bundle in the passenger’s seat he “saw two legs in it and they were skinny and white.” Efforts by YMCA personnel to view the object were thwarted by the appellee as he closed and locked the car doors and drove away. On the following day appellee’s car was found by police in Davenport, Iowa, approximately 160 miles east of Des Moines. At that time a warrant on a charge of child stealing was issued for appellee’s arrest.

Sometime in the morning of December 26, 1968, appellee called from Rock Island, Illinois, to Attorney Henry T. McKnight of Des Moines, Iowa. Mr. McKnight advised the appellee to surrender himself to the Davenport, Iowa, police. Appellee did so. After the first long distance telephone call from appellee, Mr. McKnight proceeded to the Des Moines police station where he received another long distance telephone call from the appellee, this time from Davenport where he was in police custody. Mr. McKnight, in the presence and hearing of Chief of Police Wendell Nichols and Detective Cleatus M.

Learning, told the appellee that he would be transported from Davenport to Des Moines by Des Moines policemen, that he would not be mistreated or grilled, that they would talk the matter over in Des Moines, and that appellee should make no statement until he reached Des Moines. Thereafter, it was agreed that Detective Learning and Detective Nelson would go to Davenport to pick up the appellee without Mr. McKnight accompanying them, and that the appellee would be brought directly back to Des Moines. Mr.

McKnight and the police also agreed that appellee would not be questioned until after he had been returned to Des Moines and consulted with Mr. McKnight. While the appellee was in Davenport in police custody, and at his request, he consulted with a local attorney, Mr. Thomas Kelly, who thereafter acted in his behalf while the appellee was in Davenport. Mr. Kelly advised the appellee to remain silent until he had arrived in Des Moines and consulted with Mr. McKnight. After arriving in Davenport and before departing for Des Moines, Detective Learning advised the appellee of his Miranda rights.

These rights were not repeated during the trip to Des Moines. On the trip from Davenport to Des Moines, Detective Learning and the appellee sat in the rear seat of the car with Detective Nelson driving. Learning and the appellee engaged in conversation. They discussed religion, appellee’s reputation, appellee’s friends, police procedures, aspects of the police investigation into this matter, and various other topics. At this time Detective Learning knew that the appellee had been a patient in the state mental hospital at Fulton, Missouri, for a period of about three years and that he was an escapee therefrom.

On several occasions during the return trip to Des Moines appellee told Detective Learning that he would tell him the whole story after he returned to Des Moines and consulted with his attorney, Mr. McKnight. According to Detective Learning’s own testimony, the specific purpose of his conversation with appellee was to obtain statements and information from appellee concerning the missing girl before the appellee could consult with Mr. McKnight.

The following testimony by Detective Learning during the hearing on the motion to suppress describes a portion of his conversation with the appellee: Eventually, as we were traveling along there, I said to Mr. Williams that, “I want to give you something to think about while we’re traveling down the road.” I said, “Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor, it’s going to be dark early this evening.

They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way to Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas Eve and murdered.

And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.” In response to an inquiry by appellee, Learning told the appellee that he knew the body was somewhere in the area of Mitchellville, a town 15 miles from Des Moines and along the freeway between Davenport and Des Moines. Learning later testified that he did not, in fact, know that the body was near Mitchell-ville.

Shortly before reaching the Mitchell-ville turnoff, the appellee told Learning that he would show him where the body was located. Accompanied by other police officers who were following them, they drove to a location designated by the appellee; the body of Pamela Powers was found in a ditch alongside the highway. Appellee’s statements and other evidence obtained pursuant to such statements were admitted into evidence at trial, all over the objections of appellee’s attorney. Challenged Evidentiary Facts.

As noted heretofore, this case was submitted to the United States District Court on the record of the facts and proceedings in,the state court. Under such circumstances, a federal court in reviewing an application for writ of habeas corpus is to presume as correct the facts as determined by the state court (subject to various exceptions). 28 U.S.C. § 2254(d). The appellant contends here that the United States District Court made certain findings of fact contrary to the findings in the state court and therefore violated the provisions of 28 U.S.C. § 2254(d). The District Court specifically found that Mr.

Kelly, appellee’s Davenport attorney, had advised Detective Learning prior to his departure from Davenport with the appellee that the appellee was not to be questioned until he got to Des Moines and that Mr. Kelly had asked Learning that he be permitted to accompany the appellee to Des Moines and that Learning denied the request. The District Court also found that Learning knew that the appellee was a deeply religious person and that he used that knowledge to elicit incriminating statements from the appellee.

The District Court also found that the misstatement by Learning that he knew the whereabouts of the body of Pamela Powers had a compelling influence on the appellee to make incriminating statements. A review by this court of the record of the state proceedings reveals certain discrepancies between the testimony of Mr. Kelly and Detective Learning and certain ambiguities in some of the testimony upon which the District Court relied in making its findings.

The record also indicates with regard to the facts challenged here that the state court did not resolve “the merits of the factual disputes.” Accordingly, where neither party has requested an evidentiary hearing, the federal court is not constrained in its fact findings by the presumption of correctness to be given findings of the state court. 28 U.S.C. § 2254(d)(1). This court therefore finds that the District Court correctly applied 28 U.S.C. § 2254 in its resolution of the disputed evidentiary facts, and that the facts as found by the District Court had substantial basis in the record.

Waiver of Constitutional Rights. Contrary to the findings of the state courts, the United States District Court found that waiver is a question of law. Appellant suggests that the District Court has mischaracterized the issue of waiver as one of law rather than fact and, in so doing, has erroneously avoided the presumption of correctness to be given to the state courts’ factual resolutions. In this case, the issue of whether appellee waived his right to counsel can best be characterized as an “ultimate fact” or as a “conclusion of fact.” The appellation of “fact” or “law” is nevertheless not determinative here.

The significant element in deciding the scope of the federal review is that waiver involves the question of whether appellee has exercised or relinquished a constitutional right. As such, waiver becomes a federal question about which the federal courts are obligated to make their own independent determination. As said by Mr. Justice Black in Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314, 317 (1966): The question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law.

There is a presumption against the waiver of constitutional rights, see, e. g., Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 464-165, 86 L.Ed. 680, and for a waiver to be effective it must be clearly established that there was “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. See also Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970); Doerflein v. Bennett, 405 F.2d 171 (8th Cir. 1969); Fugate v.

Gaffney, 313 F.Supp. 128, 132 (D.Neb.1970), aff’d, 453 F.2d 362 (8th Cir. 1971), cert. denied, 409 U.S. 888, 93 S.Ct. 142, 34 L.Ed.2d 145 (1972). 28 U.S.C. § 2254(

d) was not intended to replace this constitutional obligation of the federal court. In In re Parker, 423 F.2d 1021, 1024 (8th Cir. 1970), cert. denied, Parker v. South Dakota, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551, Judge Lay stated it this way: To avoid misunderstanding, the statute does not replace the federal court’s constitutional obligation to make its own independent determination on federal questions. The Supreme Court has made clear that a federal court’s consideration of the constitutional question shall be plenary. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As Mr.

Justice Frankfurter said in Brown v. Allen, 344 U.S. 443, 506, 508, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1952): “On the other hand, State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide.” * ¡fc * * * ^ “Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues, no binding weight is to be attached to the State determination. The congressional requirement is greater.

The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.” The federal court is obligated to make a full and complete review of the records of the state courts in order to comprehend the totality of the circumstances upon which the ultimate question of waiver must be determined. In Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the United States Supreme Court stated: It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights and that we “do not presume acquiescence in the loss of fundamental rights.” A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each ease, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. (Emphasis supplied.) See also Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Stidham v. Swenson, 15 Crim.Law Rep. 2072 (8th Cir., March 28, 1974).

The District Court found that the state court had applied the wrong constitutional standard in its determination of the issue of waiver by failing to place the burden on the prosecution to show that appellee had waived his constitutional rights. Appellant contests this finding of the District Court. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), places upon the prosecution the heavy burden of demonstrating that the accused knowingly and intentionally waived his privilege against self-incrimination and his right to have counsel present.

The District Court here found that the state trial court failed to place such burden upon the state prosecutor before it allowed into evidence incriminating statements made by appellee to Detective Learning and - that therefore the state court had applied the wrong constitutional standard. Appellant points out that the District Court may properly assume, in the absence of evidence to the contrary, that the state court applied correct standards of federal law to the facts when the state court does not articulate the constitutional standards applied. Townsend v.

Sain, 372 U.S. 293, 314-315, 83 S.Ct. 747, 9 L.Ed.2d 770 (1963). A review of the record here, however, discloses no facts to support the conclusion of the state court that appellee had waived his constitutional rights other than that appellee had made incriminating statements. Although oral or written expression of waiver is not required, waiver of one’s rights may not be presumed from a silent record. Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. 1602; Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70, 77 (1962).

The District Court here properly concluded that an incorrect constitutional standard had been applied by the state court in determining the issue of waiver. Further, the resolution of the waiver issue by the state court, although after fair consideration and following procedural due process, cannot be accepted as binding when it has misconceived a federal constitutional right. Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 437, 97 L.Ed. 469 (1953); Townsend v. Sain, supra, 372 U.S. at 318, 83 S.Ct. 747; Doerflein v. Bennett, supra.

Appellant points out that this court recently held that an accused can voluntarily, knowingly and intelligently waive his right to have counsel present at an interrogation after counsel has been appointed. See Moore v. Wolff, 495 F.2d 35 (8th Cir. 1973). The prosecution, however, has the weighty obligation to show that the waiver was knowingly and intelligently made. We quite agree with Judge Hanson that the state here failed to so show. In this case, appellee had obtained counsel in both Des Moines and Davenport and had been advised of his Miranda rights prior to departure from Davenport.

Once the Miranda warnings have been given, the subsequent procedure to be followed by the police is well set forth by the Supreme Court as follows: Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Miranda v.

Arizona, supra, 384 U.S. at 473, 474, 86 S.Ct. at 1627, 1628. (Emphasis supplied.) The facts in this case clearly indicate that the appellee told Detective Learning several times during the automobile trip to Des Moines that he would tell the whole story after consulting with Mr. McKnight.

Despite this indication by appellee that he wished to delay his statement until he had consulted with his attorney in Des Moines, Detective Learning persisted in his “conversation” with appellee with the admitted intent of obtaining information before their arrival in Des Moines and appellee’s consultation with his attorney there. By means of a subtle form of interrogation, Learning did obtain the incriminating statements from appellee.

It is pointed out by Judge Hanson, and also noted by the state courts, that there was an agreement between the Des Moines police and appellee’s Des Moines attorney that appellee was not to be questioned before he reached Des Moines. Although we deem it immaterial, there is substantial justification for the conclusion that Detective Learning was aware of such agreement.

In any event, Learning violated the terms of the agreement when he engaged in his subtle conversation with the appellee with the specific and admitted intent of soliciting incriminating statements before their arrival in Des Moines and appellee’s consultation with Attorney McKnight. The “particular facts and circumstances surrounding [this] case, including the background, experience, and conduct of the accused” referred to by the Supreme Court in Johnson v. Zerbst, supra, might be partially enumerated as follows:

(1) The appellee was an escapee from a mental institution wherein he had been confined for approximately three years; (2) appellee asked for and obtained an attorney to represent him at each end of the trip between Davenport and Des Moines;

(3) Mr.

Kelly, appellee’s Davenport attorney, had asked permission to accompany the appellee on the trip from Davenport to Des Moines, which permission was denied by the police; (4) both attorneys had advised appellee not to make any statements until after arriving in Des Moines and consulting with Attorney McKnight; (5) appellee gave several indications that he did not want to talk about the case until after he arrived in Des Moines; (6) appellee stated a number of times that he would talk about the case after he had seen Attorney McKnight in Des Moines; (7) by subtle interrogation Detective Learning got the appellee to make incriminating statements used to convict him; (8) the police violated an agreement they had with Attorney McKnight that the appellee was not to be questioned before consultation with Mr.

McKnight in Des Moines. Cf. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States ex rel. Magoon v. Reincke, 304 F.Supp. 1014, aff’d 416 F.2d 69 (2d Cir. 1969); Taylor v. Elliott, 458 F.2d 979 (5th Cir. 1972), cert. denied, 409 U.S. 885, 93 S.Ct. 117, 34 L.Ed.2d 142 (1972). Under all of these circumstances, we find that Judge Hanson was eminently correct in holding that the appellee’s constitutional rights had been violated in that he was denied the right to counsel and that he had not voluntarily, intelligently and effectively waived his rights.

The decision and order of the District Court are affirmed. . The Honorable William C. Hanson, Chief Judge, United States District Court for the Southern District of Iowa. .

Section 2254(

d) provides: (

d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.