Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 75-C-34 - Alfred Y. Kirkland, Judge.
Before FAIRCHILD, Chief Judge, and PELL and TONE, Circuit Judges.
FAIRCHILD, Chief Judge. Three issues are raised in this habeas corpus petition: (1) whether the petitioner's confession was obtained in violation of the standards set forth in Escobedo v. Illinois, 378 U.S. 478 (1964) and therefore should have been suppressed; (2) whether the confession should have been suppressed because it was involuntary; and (3) whether the trial judge's failure to instruct the jury as to the elements of murder was a denial of due process of law. Because the factual findings of the state court are not clear, and because certain material facts were not developed at the state court hearing, we reverse and remand for a new evidentiary hearing on the first two issues. We affirm denial of the petition with respect to the third issue.
On the night of May 26-27, 1965, two women were murdered on a rural road near Belvidere, Illinois. Their bodies were burned beyond recognition. At about 9:00 the next morning the state police officers who were in charge of the investigation sent word to the Rockford city police to "pick up" David Lane, the petitioner, who was the estranged husband of one of the women. Lane was arrested soon thereafter at his home. He was told he disputed facts will be discussed in more detail later) but it appears that Lane was questioned on three distinct occasions: first, on his way to or immediately after his arrival at the Rockford police department; second, later that morning when most of the state investigating officers were present; and third, after he had agreed to make a statement. After the second interrogation, at which he had consistently denied any knowledge of the events leading up to his wife's death, he was arrested for the murder and taken to a car for transportation back to Belvidere. Two state police officers told Lane that on the way back to Belvidere they would have to stop by the hospital where the bodies were so that Lane could identify his wife's body.Lane resisted this suggestion and agreed to make a statement. He was taken back into the police station where he was fully advised of his rights. He then made a statement in which he confessed to the murders.
At a suppression hearing held on September 29, 1965, the Winnebago County trial judge denied the defendant's motion to suppress the confession without making any specific findings of fact. After a jury trial in March, 1966, during which the defendant relied on a defense of temporary insanity, he was convicted of the murder of his wife, Karen Lane, and sentenced to a term of 60 to 75 years in the state penitentiary. The defense did not seek an instruction on the elements of murder and none was given. The Illinois Appellate Court sustained the conviction in People v. Lane, 23 Ill. App. 3d 287 (1974). The Illinois Supreme Court denied leave to appeal on March 21, 1975. The issues raised in the petition were all raised in the state appellate proceedings and are properly before us.
The present petition was filed in the district court on June 25, 1975. On November 18, 1977, the respondent's motion for summary judgment was granted. The district court held that at the time of Lane's alleged request for counsel he was in custody under a court order relating to his pending divorce and not as a murder suspect, and that after the investigation focussed on the petitioner he was advised of his rights but waived them. The district court also found that there had been a full and fair hearing in the state court on the voluntariness of the confession and that the state fact finding was not contary to the manifest weight of the evidence. Finally, the court held that the state trial court did not deny the petitioner due process of law or the right to trial by jury by failing, sua sponte, to instruct the jury on the elements of murder. This appeal followed.
There is all but overwhelming evidence in the record that when Lane was brought back into the Rockford police department after he had agreed to make a statement he was informed of, understood, and waived his right to counsel and his right to remain silent. Officers Prentice, Wise, and Bales all so testified, each one indicating that Lane responded by saying that a lawyer wouldn't do him any good (Tr. 12, 26, 51, 52, 64). The third interrogation of the petitioner followed these events. But the record is far less clear about the interrogation that occurred prior to the defendant's trip to the officer's car and his subsequent agreement to make a statement.
In Escobedo the Supreme Court held
"[Where], as here, the investigation is no longer a general inquiry with an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution... and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." 378 U.S. 478, 490
The defendant testified that he asked Officers Prentice and Carr, and possibly Wise and Bales, to speak to his attorney "several different times" (Tr. 86, 88), but was told that he could not do so until after he made a statement. The defendant was never asked whether he was advised of his right to remain silent. Only Officer Carr was asked if he had informed the defendant of that right. His answer was an ambiguous "not at that time" (Tr. 43). Officer Bales testified that he told Lane of his rights when he first introduced himself (Tr. 71) but Bales also testified that the (second) interrogation was already underway when he entered (Tr. 63). The only officer to refute Lane's claim that he had repeatedly asked to talk to his attorney was Officer Wise who said that the defendant did not ask to talk to an attorney when they first met (Tr. 58).
The Illinois Appellate Court resolved this issue by holding that "the discrepancy between the testimony of the law enforcement officers and defendant presented a factual question which the trial court could, and did, resolve unfavorably to the defendant. People v. Lane, 23 Ill. App. 3d 287, 291. Since much of the defendant's testimony was unrefuted, however, we cannot concur in that analysis. It is possible, of course, that the trial judge simply found the defendant's testimony not credible. But in the absence of any factual findings we cannot assume that was the case. White v. Finkbeiner, 570 F.2d 194 (7th Cir. 1978).
The district court granted summary judgment for the respondent on this issue on the premise that Lane was not the "focus" of the investigation during the period prior to his arrest for his wife's murder. It is clear from the record, however, that Lane was certainly the focus of the investigation at the time of the second interrogation. Between the first and second interrogations there was an interval of at least an hour (Tr. 10). During that interval the investigating officers had been to Lane's employer to check out the story Lane had given them during the first interrogation and had talked to several people, including Lane's sister, Doris Wilson, to whom Lane had already admitted the murders (Tr. 56, 522). They had also found some of the defendant's bloodstained clothing (Tr. 441) and the defendant's car which "reeked heavily of gasoline" and had "a red substance all over the steering wheel" (Tr. 522). They then returned to the police station and the second interrogation began.
It is also probable, though not quite as certain, that the defendant was the focus of the investigation from the moment he was first picked up at his home by the Rockford city police. When the state investigating officers telephoned the Rockford police they had already talked to the parents of the murder victims and had learned that Lane had called his in-laws the night before and had asked where he could find his wife (Tr. 397). There is nothing in the record to suggest that the police ever seriously considered any other suspect in the murders. Although the officers told the defendant that he was wanted by Belvidere authorities for violation of a circuit court order (Tr. 6), there is no doubt that in fact he was picked up at the request of the state police who were investigating the murders (Tr. 398). If there was in fact a circuit court order involved it was never introduced into evidence or described in any way. Even if such an order existed, however, that would not negate the strong inference that the police purpose in taking the defendant into custody was related not to such an order but was instead related to his wife's death.
Furthermore, it seems clear that the Rockford police knew why they were taking the defendant into custody and questioned him accordingly. While Officer Prentice's testimony about what, if any, questioning took place when the defendant was first picked up is somewhat vague (Tr. 7, 9, 19, 22), the testimony of his partner, Officer Carr, indicates that Lane was questioned immediately and that those questions were related to the murder investigation (Tr. 32-34).
On the record before us, then, we must conclude that the petitioner was the focus of the murder investigation at the time of the second interrogation and probably at the time of the first as well. There is no evidence that he was advised of his right to remain silent until sometime in the middle of the second interrogation. He testified that he asked for and was denied the opportunity to consult with counsel, but the sketchiness of the testimony about the first and second interrogations leaves us unable to determine whether in fact, or when, this request was made.*fn1 We therefore direct the district court to hold a new evidentary hearing on this point. 28 U.S.C. 2254.
Throughout the second interrogation the defendant consistently denied that he had any information about his wife's death. State police officers Wise and Bales then advised him that he was under arrest for the murder, handcuffed him, and took him to Officer Wise's car for the trip back from Rockford to Boone County. On their way to the car the officers told Lane that on the way back it would be necessary to stop at St. Anthony's Hospital so that Lane could identify his wife's body (Tr. 64). Lane protested but was told it was necessary because he was the closest living relative (Tr. 64). Lane and Officer Wise then entered the back seat of the officer's car. Officer Bales remained outside (Tr. 64). Lane testified that Officer Wise told him that he wouldn't have to view the body if he made a statement (Tr. 89).Officer Wise denied that he offered Lane that option (Tr. 59) but acknowledged that he repeated his insistence on an identification of the body by Lane (Tr. 49). Lane "broke down," said he didn't want to see his wife, and agreed to make a statement (Tr. 49). Officer Wise then got out of the car, telling Officer Bales "David doesn't want to go to see his wife, he wants to tell us all about it." (Tr. 64). Lane was then taken back into the Rockford station where the written statement, subsequently introduced into evidence against him, was taken.
Aside from the question of whether or not Lane was explicitly told that he could avoid viewing the body if he would make a statement, the evidence is not in conflict. The question is whether that evidence leads to a conclusion that the defendant's "will was overborne" and that the subsequent statement was ...