Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S86-00570 - Allen Sharp, Chief Judge.
Cudahy, Easterbrook, Kanne, Circuit Judges.
Raul Rudy Sotelo was convicted by a state court jury in Indiana of the first degree murder of a young girl, and was sentenced to life imprisonment. He appeals the district court's denial of his writ of habeas corpus, contending that his confession was involuntary and that he was denied effective assistance of counsel during the state court trial. We affirm the district court on the issue of the voluntariness of Sotelo's confession. We do not have jurisdiction over his appeal regarding the effective assistance of counsel issue. The conduct which now forms the basis of Sotelo's claim of ineffective assistance of counsel was not presented for review by the Indiana state court.
On September 27, 1973, a twelve-year old girl was found murdered in an isolated part of a cemetery in Lake County, Indiana. The body of the girl was unclad and her head had been crushed. On the day she was murdered, she had been seen in the company of Raul Rudy Sotelo, an eighteen-year old steel worker.
Two days later, in the afternoon of September 29, 1973, investigating officers of the Lake County, Indiana Sheriff's Department interviewed Sotelo at his home concerning the murder. Sotelo denied any knowledge of the matter. The officers left after about ten minutes but indicated that they would be back to obtain a written statement. Later that evening the officers returned to Sotelo's home. Sotelo agreed to accompany the officers to the Lake County Sheriff's Department.
After arriving at the Sheriff's Department, Sotelo sat in a locked hallway/waiting room for two hours while another suspect was questioned. Then Sotelo, accompanied by his mother, went with the officers to the detective bureau. There he was given the Miranda warnings and signed a written waiver of rights. With his mother present, Sotelo was then questioned intermittently. A typed statement was prepared at one point and Sotelo signed the statement in which he denied having anything to do with the death of the girl. Thereafter, Sotelo was again verbally advised of his rights and the questioning continued -- with the officers now disputing Sotelo's story. Sotelo continued to deny any involvement in the death of the girl. The officers told Sotelo that they did not believe him because of contradictory statements from other witnesses. One of the officers suggested that a lie detector test could be taken and Sotelo requested that one be given to him. The questioning then ended approximately two hours after it began and Sotelo was placed in custody pending a probable cause hearing.
Late the next morning, September 30, 1973, arrangements were made for Sotelo to take a polygraph examination in the office of a private polygraph examiner. The officers transported Sotelo to the polygraph examiner's office and again gave him the Miranda warnings. Sotelo was also advised that he did not have to submit to a polygraph examination. Sotelo nevertheless agreed to go forward with the test. The polygraph examination was administered to Sotelo while the officers watched in another room on closed circuit television.
When the initial testing had been completed by another operator, the reviewing polygraph examiner was of the opinion that Sotelo was not being truthful. Sotelo was then questioned by the examiner. It was at this point that Sotelo first confessed to the murder. One of the detectives was then called into the examination room. Sotelo declined to have the Miranda warnings read again, and he repeated his confession to the officer. Sotelo was returned to the detective bureau where he again signed a waiver of his rights as well as a written confession indicating that he had repeatedly run over the young girl with his automobile after she refused to have sex with him. The police interrogation was tape recorded and the polygraph examination and questioning were video recorded.
Sotelo's written confession was introduced at trial. He was convicted and sentenced to life imprisonment. His direct appeal to the Indiana Supreme Court was unsuccessful*fn1 as was his appeal from denial of post-conviction relief.*fn2 Thirteen years later, Sotelo raised two claims in federal district court in his petition for a writ of habeas corpus under 28 U.S.C. § 2254. First, Sotelo argued that his confession was not voluntary*fn3 and, second, that he was denied effective assistance of counsel because his attorney declined to delete references in his written confession to the lie detector test. Both claims were rejected by the district court. We now address each claim in turn.
In his § 2254 petition, Sotelo alleged that he was improperly coerced into giving a confession by the use of a polygraph examination. When presenting his case in district court, Sotelo focused his claim of an involuntary confession on the conduct of the polygraph examiner. Notwithstanding that focus in district court, however, Sotelo now claims on appeal that another factor also rendered his confession involuntary -- specifically, he claims certain statements made by the police officers during his interrogation were false and thus coercive.
As to our standard of review, we have stated that the ultimate issue of the voluntariness of a confession is a legal question requiring de novo review. United States v. Hawkins, 823 F.2d 1020, 1022 (7th Cir. 1987).*fn4 It is the responsibility of an appellate court on review to "independently evaluate the admissibility of the confession" with regard to whether it was voluntarily given. Miller v. Fenton, 474 U.S. 104, , 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985).*fn5 The Court mandated that the voluntariness of a confession is no longer an issue of fact presumed to be correct under 28 U.S.C. § 2254(d). Id.*fn6 See also, Miller v. Fenton, 796 F.2d 598, 601 (3rd Cir. 1986) (on remand: an independent appellate examination is required to determine whether a challenged confession is voluntary). Because we must conduct a plenary review of the record, our examination of the voluntariness of Sotelo's confession must include, not only the claim of coercive conduct by the polygraph examiner argued in the district court, but also Sotelo's belated claim submitted to us, that the police interrogation was improper.
In our review of the state court record, as in the review of the record by the district court, when the issue of the voluntariness of a confession comes into play under § 2254, we follow the rule that "the federal courts are to presume state court factual findings are correct, if these findings are made after a hearing on the merits, and are fairly supported by the record." Perri v. Director, Dept. of Corrections, 817 F.2d 448, 450 (7th Cir. 1987), Estock v. Lane, 842 F.2d 184, 186 (7th Cir. 1988). See generally Wainwright v. Witt, 469 U.S. 412, 426-430, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). However, "[t]he 'voluntariness' of a confession depends on the application of legal principles to facts, and the state court's decision that a confession is voluntary is not entitled to a presumption of correctness under 28 U.S.C. § 2254(d), although any subsidiary findings of historical fact are covered by the statute." Barrera v. Young, 794 F.2d 1264, 1270 (7th Cir. 1986), citing Miller v. Fenton, 106 S. Ct. at 451-54. In this case, the historical facts and circumstances surrounding Sotelo's confession are essentially undisputed.
We have before us extensive material concerning all aspects of Sotelo's confession, including a transcript of the audio recordings of the police interrogation and a transcript of the audio-video recordings of the questioning by the polygraph examiner. Transcripts of testimony of the police officers, polygraph examiners, and Sotelo's mother at the state court suppression hearing also form part of the record. It is on the record of the suppression hearing, as well as the trial, that we make our independent review to determine whether Sotelo's confession passes constitutional muster.
The first issue to be examined regarding the confession is the one specifically raised by Sotelo in the district court. Claiming that the polygraph test was "a blatant attempt to secure [his] conviction through inquisitional methods," Sotelo maintains that his confession was involuntary because the polygraph examiner lied about the results of his examination in order to scare or encourage him into confessing to the crime.
During Sotelo's initial interrogation by the police on September 29, an officer indicated that a lie detector test was available to corroborate his denial of involvement in the murder. Sotelo immediately requested that the test be administered. On September 30, after confirming that Sotelo still wished to take the polygraph examination, arrangements were made for such a test. Two officers took Sotelo from the jail to the polygraph examiner's office. Prior to taking the polygraph examination, Sotelo again was given his Miranda rights by one of the officers. He was also told that the test was a tool used by the police to aid in investigations and advised that he did not have to submit to the examination. Sotelo continued to indicate his desire to take the test. One licensed polygraph examiner administered the test, and another licensed examiner reviewed the test results.
Based on his review of the polygraph record, the second examiner, Mr. Magiera, determined that Sotelo was not being truthful. In accordance with accepted practice in the field, the polygraph examiner then confronted Sotelo, stating: "I looked over your [polygraph examination] records and they show that you are not being truthful on this test." Thereafter, the polygraph examiner assumed an empathic approach in his initial line of questioning. The following is an example:
Examination of Mr. Sotelo by Mr. Magiera [the polygraph examiner]:
Q ... We're talking about a girl that was physically ill, that could force a man to do things and I know from experience all the time that sometimes these girls actually lead a man on to where he is almost out of his mind, do you see what I mean, you know. I have had this happen to me, maybe this happened here. I don't understand it but they lead a man on to a bitter passion that there is no returning. They play with it, they play with your emotions and they get you so that you have no alternative, do you follow me?
Q Now there is a lot of difference between that and between somebody who is stopping and thinking, you know what I mean, you can do this and do you see what I mean?
Q If this was done accidentally you didn't mean to do it, you should tell me that you really didn't mean to do this, it was done just accidentally, do you see what I mean, Raul?
Q This is what is important, if she lead you on, if she lead you to the height of passion, you know, that you couldn't control yourself. If she tested you to such a degree that you couldn't really help it and this thing is accidental, do you see what I mean and you lose control of yourself and you lost your good sense, do you know what I mean?
Q She knew that she was teasing you, didn't she?
Q And she knew that she was leading you up to a point of no return almost, didn't she?
Q You couldn't help yourself, could you, you couldn't help yourself, you didn't really ...