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November 13, 1970


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).

In the instant case, the factual issues of whether the Miranda warnings were properly given to petitioner and whether the waiver signed by petitioner was a voluntary and knowing waiver of his right to counsel and his right to remain silent were resolved by the Circuit Court in a pretrial hearing on July 6, 1967 (R. 78-122). The record of that hearing indicates that the only witness proffered by either the State or the defendants was one of the two police officers who spoke with petitioner subsequent to his arrival at the police station. This officer testified that he read the full "Miranda warning" to petitioner as embodied in a special card provided to policemen in Winnebago County for that purpose, which card was introduced into evidence. He further stated that petitioner was asked to sign the waiver form after the warnings were given, that petitioner in fact appeared to read the waiver form, that petitioner stated that he was capable of reading and writing and that he understood the form, and that petitioner then signed the form in the presence of the officer; the time of these occurrences was estimated to be at 8:30 A.M. on the 4th of April, 1967. Cross-examination of this witness brought forth the implication that perhaps the petitioner might not fully have understood that he was waiving these rights because he never specifically stated that he did not desire a lawyer to be present or that he needed a lawyer appointed; rather, petitioner merely stated that he was then willing to talk.

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.

Petitioner does contend that Doss' Fifth Amendment rights were prejudiced by this confrontation and that evidence resulting from this constitutional deprivation was used in the trial against both Doss and petitioner, thus violating Miranda. The State contends that the forced confrontation between the co-defendants was not violative of Miranda, and that, even if it were, petitioner has no standing to raise this claim. We will assume, for purposes of this decision only, that the confrontation did in fact deprive Doss of his right under Miranda to be free from further interrogation after stating his desire to remain silent.

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 (1968).

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 ...

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