The opinion of the court was delivered by: Will, District Judge.
Petitioner is presently incarcerated in the Illinois State
Penitentiary, Joliet, Illinois, serving a term of 75 to 100 years
for the offense of murder. He and his co-defendant, Ronald Doss,
were tried and convicted by a jury in the Circuit Court of the
Seventeenth Judicial Circuit, County of Winnebago, on July 17-20,
1967. The Illinois Supreme Court, although vacating the death
sentence originally imposed by the jury, affirmed the convictions
over the constitutional objections raised by petitioner and his
co-defendant concerning an alleged denial to them of their Fourth
and Fifth Amendment rights. Ill.Sup.Ct., No. 41165, May, 1969.
Petitioner is presently seeking habeas corpus relief pursuant to
28 U.S.C. § 2254 claiming that 1) he had no counsel during
interrogation immediately after arrest nor was he warned of his
rights to have such assistance, in violation of the requirements
of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966); 2) the police violated his and Doss' Fifth Amendment
rights by arranging a confrontation between the two, wherein
petitioner told Doss to show the police where the gun allegedly
used in the crime was hidden, which gun was subsequently admitted
into evidence at their trial; and 3) petitioner and Doss were
unconstitutionally arrested and searched without a warrant either
for the arrest or the search and evidence obtained from this
search was used at trial.
With respect to petitioner's allegation that he was not
properly advised of his rights as required by Miranda, the State
contends that he was in fact given such warnings but that, even
if they had not been given, the conviction would not be vitiated
because neither his confession nor evidence derived therefrom was
introduced by the prosecution at the trial. Included as part of
the voluminous record is a waiver form signed by the petitioner
(R. 85-A) stating that he had been advised that he need not say
anything to any law enforcement officers, that he was aware that
any answers given could be used in evidence against him, that he
understood that he had a right to have a lawyer present before
and during any questioning by law enforcement officers, that he
knew that, if he could not afford a lawyer, one would be
appointed for him, and that he understood these rights and
nevertheless wished to make a statement to the law enforcement
officers. This form was witnessed by two Deputy Sheriffs of
Winnebago County and dated April 4, 1967, 8:30 A.M.
Section 2254(d) of Title 28 of the United States Code requires
a federal court in a habeas corpus proceeding by a person in
state custody to presume as true any finding of fact made on the
merits by a state court in any proceedings between the petitioner
and the state unless the federal court concludes on a
consideration of the record of the state court proceedings that
such factual determination is not fairly supported by the record.
Subsection (d) of 28 U.S.C. § 2254, which was added to that
section by Congress in 1966, is a codification of the rule
announced by the United States Supreme Court in Townsend v. Sain,
372 U.S. 293, 318, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963), that
where the state court has made a full and fair evidentiary
hearing with express findings of fact, the district court may
"and ordinarily should, accept the facts as found in the
hearing." The conflicts and inconsistencies in testimony with
respect to the details of what occurred between various persons
presents issues of credibility and determination of the weight of
the evidence for the trial judge who saw and heard those
witnesses to resolve. United States ex rel. Robinson v. Pate,
312 F.2d 161 (7 Cir. 1963).
On the basis of this evidence, the trial court concluded (R.
119-122) that petitioner in fact was advised of his rights at the
8:30 A.M. meeting and that he understandingly, knowingly, and
intelligently waived his rights and decided to volunteer
statements concerning the alleged crime to the police officers.
Although Miranda places a heavy burden on the State to prove that
a waiver of the privilege of self-incrimination was knowingly and
intelligently made when an interrogation continues without the
presence of an attorney, this Court concludes that the record of
the Circuit Court hearing adequately satisfies the strong burden
placed on the State and supports the trial court's resolution of
the factual dispute concerning whether petitioner was given the
Miranda warnings and whether he knowingly and intelligently
waived them. Therefore, this Court must accept that resolution
and deny petitioner's request for relief on this claim.
Petitioner next contends that certain evidence, the gun used in
the murder, was acquired through a violation of Doss' Fifth
Amendment rights and that it consequently should not have been
admitted into evidence at trial. The facts relevant to this
claimed deprivation of constitutional rights, viewed most
favorably to petitioner, are as follows. After arriving at the
police station on the morning of April 4, 1967, Doss, separated
from petitioner, was advised of his Miranda rights and he
thereupon refused to make any statement to police; the police,
nevertheless, persisted in attempting to garner information from
Doss and arranged a confrontation between him and the petitioner.
At about 9:30 A.M., Doss was brought to a room in which
petitioner and numerous police officers were present. Petitioner
told Doss that he desired to clear up the whole affair and
requested Doss to show the police officers where he had buried
the gun. Doss thereupon led the officers to the hidden gun, which
was used in evidence at the trial of both co-defendants. It is
this forced confrontation between Doss and petitioner which led
to the discovery of the murder weapon that petitioner claims was
violative of the Fifth Amendment and Miranda.
Petitioner apparently does not claim that his request to Doss
to locate the murder weapon was violative of Miranda. If he does,
that issue has been resolved against him above. Petitioner was
given the Miranda warnings at approximately 8:30 A.M. and his
request to Doss was made less than an hour later. While a valid
waiver of the rights of an accused under Miranda obviously will
not last forever, statements within an hour after a valid waiver
has been given, barring exceptional circumstances, must be
presumed to have been given voluntarily and knowingly.
The United States Court of Appeals for the Eighth Circuit has
recently considered the exact question of whether evidence
tainted by a violation of the Fifth Amendment rights of a
participant in a crime could be objected to by a co-defendant. In
United States v. Bruton, 416 F.2d 310 (8 Cir. 1969), cert.
denied, 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428 (1970), the
court concluded that the defendant therein did not have standing
to challenge a constitutional deprivation to his co-participant,
notwithstanding that such evidence implicated the defendant. The
court there analogized from the Supreme Court's holding in
Alderman v. United States, 394 U.S. 165, 171, 89 S.Ct. 961, 965,
22 L.Ed.2d 176 (1969), where the Court reaffirmed the principle
that suppression of the product of a Fourth Amendment violation
can be successfully urged only by those whose rights were
violated by the search itself, not by those who are aggrieved
solely by the introduction of damaging evidence. The Bruton court
noted that the aspect of Alderman dealing with standing was at
least in part an outgrowth of the personal nature of certain
constitutional rights, there the Fourth Amendment's guarantee
against unreasonable searches and seizures. As the Fifth
Amendment right to be free from self-incrimination is likewise a
personal right, Rogers v. United States, 340 U.S. 367, 71 S.Ct.
438, 95 L.Ed. 344 (1951); Hale v. Henkel, 201 U.S. 43, 26 S.Ct.
370, 50 L.Ed. 652 (1906), the Bruton court decided that the
defendant had no standing to attack the evidence poisoned by the
constitutional deprivation of another, irrespective of the fact
that such evidence seriously implicated the defendant.
We agree with the rationale of the Bruton court. The personal
nature of the Fifth Amendment guarantee manifestly precludes
petitioner from claiming any error because of Doss' alleged
deprivation. The only potential prejudice arising from the
introduction into evidence of the murder weapon, the fruit of the
confrontation, would have accrued solely to Doss. Fifth Amendment
rights of co-conspirators are strictly personal to them and one
has a vested interest only in his own Fifth Amendment rights.
Poole v. United States, 329 F.2d 720 (9 Cir. 1964). Accord,
Bowman v. United States, 350 F.2d 913 (9 Cir. 1965), cert.
denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1965); Long
v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829 (1966);
People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772
(1967), cert. denied, 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86
Petitioner's heavy reliance on Wong Sun v. United States,
371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is misplaced. He
contends that the Supreme Court in that case excluded certain
narcotics from evidence which was discovered as a result of
unconstitutional acts by the police. This assertion is correct
insofar as the Court did hold narcotics discovered as a result of
an unconstitutional arrest of one Toy to be inadmissible as to
Toy. That case, however, specifically held the identical evidence
to be admissible as to Toy's co-defendant, because the seizure of
the heroin, unconstitutionally seized as to Toy, "invaded no
right of privacy of person or premises which would entitle Wong
Sun to object to its use at his trial." 371 U.S. at 492, 83 S.Ct.
at 419. Wong Sun, thus, is factually similar to the present ...