Appendix — Wyrick v. Fields

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

EDWARD FIELDS, Appeal from the

Appellant, United States Dis-

trict Court for the

Eastern District of

DONALD WYRICK, Missouri.

Appellee. |

V.

Submitted: September 17, 1981

Filed: April 23, 1982

Before LAY, Chief Judge, and HEANEY and ROSS, Cir-

cuit Judges.

HEANRY, Circuit Judge.

Edward Fields appeals from the district court’s denial

of his petition for habeas corpus relief filed pursuant to

28 U.S.C. § 2254. We reverse the lower court on the ground

that Fields’ state court conviction was obtained as a result

of his involuntary confession. Federal habeas corpus relief,

therefore, should have been granted.

Fields, a soldier then stationed at Fort Leonard Wood,

was charged with raping a Waynesville, Missouri woman

on September 21, 1974. He was convicted by a jury on

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March 13, 1975, and was sentenced to twenty-five years

imprisonment. His conviction was affirmed on appeal. State

v. Fields, 538 S.W.2d 348 (Mo. Ct. App. 1976).

Fields subsequently filed three successive motions to

set aside his conviction under Rule 27.26 of the Missouri

Rules of Criminal Procedure. These motions were denied.

Fields v. State of Missouri, 596 S.W.2d 776 (Mo. Ct. App.

1980); Fields v. State of Missouri, 572 S.W.2d 477 (Mo.

1978). Fields then sought a writ of habeas corpus, citing

various grounds allegedly justifying relief. Only one of

these asserted errors concerns us on appeal, i.e., Fields’

contention that the trial court erroneously admitted testi-

mony regarding his ‘‘involuntary confession.’”

Our recitation of the cireumstances leading up to

Fields’ confession relies primarily on facts either stipu-

lated to by the parties at the suppression hearing or as

set out in the court’s opinon affirming Fields’ conviction

on direct appeal. Fields was arrested on September 25,

1974, and charged with rape. He was released on his own

recognizance and retained private defense counsel. After

diseussing the matter with his counsel and a military at-

torney, Fields consented to the administration of a poly-

graph examination in connection with the rape charge.

The examination was conducted on December 4, 1974, by

Jesse Merl Bourne, Jr., an agent with the United States

Army Criminal Investigation Division (CiD) at Fort

Leonard Wood. Although an attorney is allowed to be

present during a CID polygraph examination, Fields’ coun-

1Fields also claims that he was denied effective assistance of counsel

at his trial, on direct appeal, and in perfecting his 27.26 motions; that

the warrant causing his arrest lacked probable cause; and that the jury

which convicted him was selected in a manner which systematically ex-

cluded women and blacks. Because we agree that Fields’ confession was

involuntary, we need not reach the other issues raised in his habeas pe-

tition.

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sel was not invited to be present, nor was he informed

that the test would be given that day. Before the poly-

graph examination was given, Fields was advised that

he had the right to remain silent and to have an attorney

present, and he signed a written form consenting to the

examination.

After the examination was completed, Bourne told

Fields that there had been some deceit’’ and asked him

if he had some explanation as to why his answers were

bothering him. Fields threupon stated that he had had in-

tercourse with the victim on September 21, 1974, but that

she had instigated and consented to the contact. Bourne

then asked Fields if he wished to discuss the matter fur-

ther with another CID agent, Charles Fann, and the

Waynesville Chief of Police, James Cole. Fields agreed

to do so. Police Chief Cole gave Fields the Miranda warn-

ings before questioning him. Fields repeated to Cole and

Agent Fann his account of what happened on September 21,

i.e., that the victim had voluntarily engaged in sexual rela-

tions with him at her residence.

Fields sought to suppress the testimony of Police Chief

Cole and Agents Bourne and Fann regarding his ‘‘con-

fession’’ to voluntary intercourse. On the dav of Fields’

trial, a hearing was held on Fields’ motion, at the conclu-

sion of which the trial court stated the following:

Well, I’m going to overrule the Motion to Suppress

for the reason that this defendant on several ocen-

sions was advised what his rights were.

It's true that he was represented by counsel and

he talked to counsel about it. And while I’m inclined

to believe that we ought to make every effort to pro-

tect the rights of individuals, grant them their con-

stitutional rights, still, after the defendant is advised

not on one occasion, but on several occasions, what

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his rights are, then he voluntarily requests and puts

himself in position for making statements which—with

the understanding that they might be used against

him, I think that in this case that he waived those

rights and I would have to overrule the Motion to

Suppress.

The trial court did not enter written findings of fact or

conclusions of law on the motion to suppress. *

The propriety of this ruling was the sole issue raised

in Fields’ direct appeal of his conviction. The Missouri

Court of Appeals stated that Fields’ pleadings or briefs

did not preserve anything for appellate review, but went

on to ‘‘briefly’’ consider Fields’ constitutional claim under

a plain error“ standard. State v. Fields, supra, 538

S.W.2d at 349-350. The court concluded that the motion to

suppress was properly denied because ‘‘defendant had been

repeatedly and amply advised of his rights [and] volun-

tarily, knowingly and intelligently waived his rights.“ JJ.

at 350.

We are mindful of the Supreme Court’s recent ad-

monition that in federal habeas corpus proceedings the

court must apply a ‘‘ presumption of correctness’’ to factual!

determinations made by the state courts. See Summer „.

Mata, 66 L.Ed.2d 722, 731 (1981). The applicable statute

provides that this ‘‘presumption of correctness’’ applies

to a state court's determination after a hearing on the

merits of a factual issue * * * evidenced by a written find-

ing, written opinion, or other reliable and adequate writ-

ten indicia.’’ 28 U.S.C. 5 2254(d). The presumption does

not, of course, attach to a state court’s resolution of a

question of federal law or to ‘‘a mixed determination of

law and fact that requires the application of legal prin-

ciples to the historical facts of [a] case. Cuyler v. Sulli-

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van, 446 U.S. 335, 342 (1980). As the Supreme Court has

noted, the question of whether or not a defendant has

effectively waived his constitutional rights is not one of

fact but of federal law. See Brewer v. Williams, 430 U.S.

387, 397 n.4 (1977). Accordingly, we have accepted those

‘*hasic, primary or historical facts“ determined by the

state courts,‘ while independently reviewing the legal con-

clusion drawn therefrom.

After a careful review of the record and the state

court’s findings, we conclude that Fields did not knowingly

and intelligently waive his right to have counsel present

at the interrogation described above. Fields’ incriminat-

“The dissent in Sumner t. M

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themselves.” Sumner b. Mata, supra, 66 L.Ed.2d at 737. We are not in-

clined to read more into the majority opinion than is clear from its hold-

ing—i.ec., that a federal court considering a habeas petition can overturn

the factual findings of a state trial or appellate court only if, in the

opinion granting the writ, the court clearly states why it considers any of

the eight “exceptions” to the § 2254(d) “presumption of correctness” to

be applicable. Id. at 734. The majority explicitly reasserted that “even a

single federal judge may overturn the judgment of the highest court of

a state insofar as it deals with the application of the United States Con-

stitution or laws to the facts in question.” Id. at 729.

*Cuyler v. Sullivan, 446 U.S. 335, 342 (1980).

*As we have noted. the trial court did not enter evidentiary findings

brief, “plain error” review of Fields’ claim. Cf. Sumner b. Mata,

at 730 ( 2254/d) applies to state appellate court

plenary consideration of petitioners’ claim. including

review of state court record).

the isme of whether section 2254(d)’s strictures apply to that

, 66

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ing statements were, therefore, not voluntarily made and

should have been suppressed.“

It has been clear since Miranda v. Arizona, 384 U.S.

436 (1966), that ‘‘the right to have counsel present at [an]

interrogation is indispensable to the protection of the Fifth

Amendment privilege’ against self-incrimination. JA. at

469. This aspect of the Miranda ruling reflects the Court’s

concern that ‘‘the circumstances surrounding in-custody

interrogation can operate very quickly to overbear the will

of one merely made aware of his privilege by his inter-

rogators.’’ Id.

The importance of the right to have counsel present

during a custodial interrogation has recently received

renewed emphasis. In Edwards v. Arizona, 68 L. Ed. 20

378 (1981), the Supreme Court held that once a suspect

invokes his right to counsel, he is not subject to further

interrogation until counsel is provided to him, unless the

suspect himself initiates dialogue with the authorities.

In so ruling, the Court apparently sought to buttress the

right to counsel by creating a per se rule restricting the

circumstances under which a court can find that the right

has been waived. See Note, Edwards v. Arizona: The Burg-

er Court Breathes New Life Into Miranda, 69 Cal. L. Rev.

1734, 1746-1747 (1981). Objective criteria controls the waiv-

er determination when a suspect has invoked the right

to counsel: either counsel must be present at subsequent

custodial interrogations or else the dialogue at issue must

have been initiated by the accused.

There is no question that Fields’ “confession” was material to his

conviction because, if believed, it definitively established that Fields had

intercourse with the victim on the day of the rape. The rape victim never

saw her assailant, except for his hand, because her face was covered by

a pillowcase throughout the assault. When asked at trial if the defendant's

hand was the one she saw that day, the victim replied “no.”

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The per se rule enunciated in Edwards does not re-

solve the issue present here. Fields and his counsel mu-

tually agreed that Fields should take the polygraph ex-

amination, Fields appeared at the examination without

his counsel and stated that he did not want counsel present

during the examination. Fields thereby ‘‘initiated’’ fur-

ther dialogue with the authorities after his right to counsel

had been invoked. Accordingly, the question of whether

Fields waived his right to have his counsel present at the

subsequent interrogation becomes more complex. The EA.

wards Court stated that

if * * * in the course of a meeting initiated by the

accused, the conversation it not wholly one-sided [and]

the officers * * * say or do something that clearly

would be ‘‘interrogation’’ * * * the question would be

whether * * * the purported waiver was knowing and

intelligent and found to be so under the totality of

the circurastances, including the necessary fact that

the accused, not the police, reopened the dialogue with

the authorities.

Edwards v. Arizona, supra, 68 L. Ed.2d at 387 n.9.“ The

burden of proving that a defendant has knowingly and

voluntarily waived his right to have counsel present at

an interrogation rests with the government, and the Su-

preme Court has characterized that burden as a heavy“

one. See Miranda v. Arizona, supra, 384 U.S. at 475.

»The fact that Fields “initiated” the meeting with the authorities

does not render the resulting interrogation “noncustodial,” as the state

seems to suggest; it merely changes the standard by which the existence

vel non of a waiver is determined. Nor was the interrogation “noncus-

todial” simply because Fields was not in jail at the time the

was run. Fields had been arrested on the rape charge, and was release:

on his own recognizance only under the condition that his company com-

mander know where he was at all times.

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Regardless of whether the Edwards per se rule is

strictly applicable, the clear import of the Edwards de-

cision is to affirm that a defendant’s right to have counsel

present at custodial interrogations must be zealously

guarded, particularly when the defendant has retained

counsel and thereby has expressed a desire to deal with

the authorities through counsel. We cannot find that the

government proved a knowing and intelligent waiver in

this case without significantly undermining that principle.

In our view, the right to have counsel present is espe-

cially erueial where, as here, the authorities utilize the

results'“ of a polygraph examination to elicit inerimi-

nating statements from the accused. It has been suggested

that the primarv utility of polygraphs administered in

the course of a criminal investigation is to induce confes-

sions from the aceused. See Lykken, A Tremor in the

Blood: Uses and Abuses of the Lie Detector, 214-215

(1981), This Cireuit has refused to admit the results of

unstipulated polygraph examinations into evidence hecause

„the polygraph does not command scientific acceptability

and * is not generally believed to he sufficiently reli-

able in ascertaining truth and deception to justify its

utilization in the trial process.’’ United States v. Alexander,

526 F.2d 161, 164 (Sth Cir. 1975). Accord, United States v.

Masri, 547 F.2d 932, 926 (5th Cir.), cert. denied, 434 U.S.

907 (1977); United States v. Skeens, 494 F.2d 1050, 1053

(D.C. Cir. 1974). See DeMartino ». Weidenburner, 616

F.2d 708, 713 (3rd Cir. 1980); United States u. Russo, £27

F.2d 1051, 1058-1059 (10th Cir.), cert. denied, 426 U.S.

906 (1976). The Missouri state covrts refuse to allow any

Professor Lykken cites, for example, the experience of the Los

Angeles Police Department polygraph laboratory. Their examiners esti-

mate that they obtain confessions from twenty-five percent of the suspects

subjected to polygraph tests. Lykken, A Tremor in the Blood: Uses and

Abuses of the Lie Detector, 208 (1981).

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polygraph examination results into evidence at trial, even

if the parties have stipulated to the use of such evidence.

See State v. Biddle, 599 S.W.2d 182, 191 (Mo. 1980)

(en banc); State v. Weindorf, 361 S.W.2d 806, 811

(Mo. 1962). The Missouri Supreme Court recently stated

that

[gliven the large margin of error stated by some ex-

perts and the disagreements among the experts as to

the polygraph’s reliability. a stipulation as to the ad-

missibility of its results is, in effect, an agreement

to rely upon chance rather than upon competent evi-

dence, as well as an agreement regarding scientific

opinion beyond the competence of either party to un-

derstand or evaluate.

State v. Biddle, supra, 599 S.W.2d at 190 n.10.

The questionable reliability of so-called ‘‘lie-detec-

tors’ does not, however, diminish the significant psycho-

logical impact the device can have or the examinee. See

Lykken, supra, at 211-212. It may seem futile to maintain

silence in the face of the examiner’s statement that the

machine, cloaked with the mystique of scientific infalli-

bility, has shown the accused to be lying. Furthermore,

the examiner is not likely to be challenged by the accused

when he indicates that the machine has shown ‘‘some de-

ceit ;’’ the accused, and frequently the court reviewing the

As this Court noted in United States v. Alexander, 526 F.2d 161,

165 (8th Cir. 1975),

[t}here is no “lie detector.” The polygraph machine is not a lie de-

tector,” nor does the operator who interprets the graph detect “lies.”

The machine records physical responses which may or may not be

connected with an emotional reaction and that reaction may or may

not be related to guilt or innocence.

quoting, H.R. Rep. No. 198, 89th Cong., Ist Sess. 13 (1965). See Lvk-

ken, supra, at 55-62.

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circumstances of a polygraph-induced confession, has no

way of knowing what, in fact, the test results revealed.“

We do not, of course, imply that the use of a poly-

graph and its ‘‘results’’ is the kind of ‘‘trickery’’ that

necessarily renders post-test confessions involuntary. We

merely hold that because of the significant potential for

abuse inherent in a post-polygraph interrogation, the courts

must be particularly cautious about finding that a suspect

has ‘‘waived”’ his right to have counsel present at such

an interrogation.

There is no question that Fields waived his right to

have counsel present while the examination itself was

being conducted. Fields was advised that he did not have

to answer any of the examiner’s questions and that he

could have an attorney present at the examination. Prior

to the beginning of the polygraph examination, Fields

stated that he did not want a lawyer present and signed

a written consent to the examination. This fact is not suf-

ficient to meet the government’s burden to prove that

Fields knowingly and intelligently waived his right to have

counsel present at the post-test interrogation.

The line we draw is not an artificial one. In Henry

v. Dees, 658 F.2d 406 (5th Cir. 1981), the Fifth Cireuit held

that the defendant’s waiver of his constitutional right to

remain silent and have counsel present during a polygraph

examination did not extend to questions propounded by

the examiner after the defendant was ‘‘off’’ the polygraph

machine. The defendant, Gilbert Henry, with his counsel!

present, had signed written consent forms waiving his

constitutional safeguards for the duration of the polygraph

examination and stipulating to the admissibility of any

statements of guilt procured by the examiner during the

That was the case here: the results of Fields’ polygraph examination

were not part of the record before the district court or on appeal.

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examination. The examiner, administering the examination

without defendant’s counsel that he had ‘‘failed’’ and asked

did he ‘‘want to tell me about the thing?’’ The court con-

cluded that the inculpatory statements made by the de-

fendant in response to that inquiry were „, under the

totality of the circumstances, freely and voluntarily made

and, therefore, should have been suppressed. Id. at 408-409.

In refusing to extend Henry’s examination consent

to the post-test questioning, the Fifth Cirenit noted that

‘**{njeither Henry nor his counsel contemplated that the

instruments they signed exposed Henry to questioning

which was not an integral part of a polygraph examina-

tion.“ Id. at 410. There is similarly no evidence that Fields

or his lawyer anticipated that the CID officer would at-

tempt te elicit incriminating statements from Fields after

the examination was run. Fields’ lawyer stated at the sup-

pression hearing that he and the defendant only wanted

a polygraph to be run and that we be given results.“

It was his understanding that ‘‘the running of the poly-

graph would have merely shown deceit or non-deceit and

would have been used for the purposes of a possible pre-

trial negotiation.’ Agent Bourne, the polygraph exami-

ner, did not attempt to dispel this mistaken impression

before the examination began. Bourne testified that he

did not inform Fields that if the machine indicated that

his responses were deceitful that Bourne would continue

the questioning ‘‘to find the truth.“ Nonetheless, Fields

was subjected to interrogation of aſn] [investigative |

officer, out of the presence of his counsel, and without

the benefit of meaningfully timed Miranda warnings."’

Fields consented to the polygraph examination because it was his

and his commanding officers’ hope that a “successful” polygraph exami-

nation of Fields would encourage the authorities to drop the charces

against Fields so that he could graduate and transfer out with the rest

of his basic training class.

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Id. (emphasis added). The [officer] moved from adminis-

tration of a polygraph examination to police interrogation

without pausing to remind [the defendant) of his privilege

against self-incrimination and his right to have counsel

present during questioning.’’ Id. at 409. As a result, the

officer obtained highly incriminating admissible testimony

from the defendant, instead of merely determining the

results of the polygraph examination—results which could

not have been introduced at Fields’ trial. See State v.

Biddle, supra, 599 S. W. 2d at 191; State v. Weindor}, supra,

361 S. W. 2d at 811.

Because we hold that Fields’ consent to the polygraph

did not constitute a waiver of his right to have counsel

present at the post-test interrogation, we then must in-

In response to questioning by the states attorney, Bourne testified:

Q. After the polygraph examination was done, did you have

any further conversations with this man?

A. Yes sir.

Q. Did you indicate to him that ne did not have to make any

further statements other than what he had already done on the

polygraph examination?

A. No sire, we continued to discuss it.

The Missouri Court of Appeals, in its opinion affirming Fields’

conviction, erroneously considered Fields consent to the polygraph to be

sufficient evidence of knowing and intelligent consent to the post-test

interrogation. The court bolstered its consent finding by stating that Fields

testiiied that |.efore the test began he was read his rights and “I under-

stood it to be that I didn’t have to make any statements, do anything

without my counsel being present.” The transcript reveals, however, that

Fields in fact stated that at the time of his arrest, he understood that he

did not have to make any statements before he retained counsel and had

him or her present. As the Supreme Court has noted, “waiver requires

not merely comprehension but reliquishment.” Brewer v. Williams, 430

U.S. 387, 404 (1977). Miranda warnings successfully imparted to Fields

at the time of his arrest no more constitute conclusive evidence of a post-

polygraph waiver than does the fact that Fields waived his right to pro-

tection of counsel during the examination.

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quire whether he subsequently waived this right.!“ The

government has simply introduced no evidence from which

we can conclude that when Fields was confronted with the

accusatory statement that the ‘‘lie-detector’’ showed he

was lying, he waived his right to the protection of counsel

in this coercive situation.

After Fields ‘‘confessed’’ to Agent Bourne, he wis

requestioned by Police Chief Cole and CID Officer Fann.

This questioning was preceded by Miranda warnings. These

warnings, however, could hardly be considered **meaning-

fully timed.“ Fields had already told Bourne his version

of the events of September 21, 1974, a story that was

merely repeated to the other officers. Cole’s and Fann’s

testimony at trial regarding the substance of Fields“ “con-

fession’’ was cumulative. Therefore, even if we were to

ln our view, neither the Henry v. Devs decision, nor ours in the

instant case, is inconsistent with our Court's opinion in United States v.

Little Bear, 583 F.2d 411 (8th Cir. 1978). Little Bear, under investiga-

tion for the manslaughter of her husband, agreed to take a polygraph

examination. Before the examination began, she signed a written consent

form. She therein stated that she was consenting to an interview with

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a previously asserted right to deal with the author-

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„Little Bear expressly consented to an interview that

confined to questions propounded as part of the polygraph exami.

was no question then of whether the examiner had im-

exceeded the scope of what Little Bear had consented to. Final-

rela Little Bear’s “confession” was prompted by the exami-

only question propounded while she was on the machine.

not subjected to “post-test” interrogation prompted by alleged

responses.

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consider the belated warnings to be sufficient evidence that

Field voluntarily, knowingly and intelligently waived his

right to have counsel present, the warnings—and the al-

leged waiver—simply came too late.

We note that the troublesome circumstances of this

case could have been easily avoided. If the polygraph did,

in fact, detect physiological responses by Fields that the

examiner associated with deceitful testimony, it would have

been a simple matter for him to contact Fields’ counsel

before proceeding to interrogate the defendant. This ne-

tion, of course, was not constitutionally commanded. But

it would have prevented the situation we are presented with

here—a defendant, in the absence of his retained counsel,

giving key inculpatory testimony to an investigative offi-

cer, without any indication in the record that he knowingly

and intelligently waived his right to have his counsel pres-

ent.

For the reasons set forth above, we remand to the

district court with directions to it to order the state to

either release the appellant or afford him a new trial. The

district court shall fix a reasonable time period within

which the state must provide this relief.

ROSS, Cireuit Judge, Dissenting.

I am compelled to dissent from the majority’s con-

clusion that the appellant’s confession during the post-

polygraph test interview was involuntarily given because

Fields did not knowingly and intelligently waive his right

to have counsel present’’ at that interrogation. It is well

established ‘‘that waivers of counsel must not only be

voluntary, but constitute a knowing and intelligent relin-

quishment or abandonment of a known right or privilege,

a matter which depends in each case ‘upon the particular

facts and circumstances and conduct of the accused.’ ’’ EA.

wards M. Arizona, 101 S.Ct. 1880, 1883-84 (1981), quoting

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Johnson v. Zerbst, 304 U.S. 458, 464 (1938). However,

accepting the basic fr ‘ts presented in the majority opinion,

it seems clear that Fields must be viewed as having waived

his rights to have counsel present at the interrogation in

accordance with this standard.

On September 25, 1974, when Fields was arrested and

charged with the rape he was given his Miranda warnings.

He admitted in his suppression hearing that he understood

the meaning of these rights when he stated that ‘‘I under-

stand it to be that I didn’t have to make any statements,

do anything without my counsel present.“ Fields there-

upon consulted with both privately retained and military

counsel, and consented to a polygraph examination. Prior

to undergoing the polygraph on December 4, 1974, Fields

was again fully advised of his rights. He was given and

signed a written consent document which informed him

of his rights under the Uniform Code of Military Justice

and the Eighth Amendment. In addition, the agent read

the defendant the following detailed statement of his

rights“:

Before I ask you any questions, you must understand

your rights. You do not have to answer my questions

or say anything. Anything you say or do can be used as

evidence against you in a criminal trial. You have a

right to talk to a lawyer before questioning or have a

lawyer present with you during the questioning. This

lawyer can be a civilian lawyer of your own choice, or

a military lawyer, detailed for you at no expense to

you. Also, you may ask a military lawyer of your

choice by name and he will be detailed for you if super-

iors determine he’s reasonably available. If you are

now going to discuss the offense under investigation,

which is rape, with or without a lawyer present, you

have a right to stop answering questions at any time

or speak to a lawyer before answering further, even

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if you sign a waiver certificate. Do you want a lawyer

at this time? Defendant answered. No.“

State v. Fields, 538 S. W. 2d 348, 350 n.1 (Mo. Ct. App. 1976)

(emphasis added). It is important to note that Fields was

clearly advised that he could stop answering questions at

any time or speak to a lawyer even if he signed the waiver

certificate. After Fields had made his confession to con-

sensual sexual intercourse with the victim to Agent Bourne,

he was again given his Miranda warnings before he re-

peated his confession to the police.

Thus, it is clear that Fields was given full warnings

concerning his rights at least twice before he made his con-

fession to Agent Bourne. Furthermore, there is absolutely

no indication that Fields did not fully comprehend those

rights and the consequences of any statement that he made.

To the contrary, Fields’ admission that he understood what

his Miranda rights meant, even if made in reference to post-

arrest warnings, strongly supports the conclusion that

Fields still understood what those rights meant when he

was advised of them again prior to the polygraph, especial-

ly in light of the fact that Fields had been advised by coun-

sel prior to taking the polygraph. There is simply nothing

in the stated facts which would cast doubt as to Fields’

continuing comprehension of his rights at the time he took

the examination. Moreover, althongh the majority opinion

notes that Fields’ waiver of Miranda rights immediately

after his confession to Agent Bourne but prior to his re-

peated confession to the police are not timely as to that first

confession, Fields’ continuing waiver of those rights is at

least indicative of his continued comprehension and desire

to waive those rights.

If continued waiver of counsel after numerous clear

warnings is not sufficient to show voluntary, knowing and

intelligent waiver, I am somewhat perplexed as to what

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would be sufficient in the circumstances of this case. As I

read the majority’s opinion, only two things would have

made the confession voluntary: (1) the presence of Fields’

counsel at the polygraph, or (2) giving Fields another set

of Miranda warnings after the polygraph had been turned

off but before any further questioning. As the court notes

in its opinion, contacting Fields’ counsel, in the absence of

a request by Fields to do so, is not constitutionally require.

Furthermore, it is difficult to understand, in the cireum-

stances of this case, how one more recitation of Miranda

warnings would prove knowing and intelligent waiver if

waiver of two prior sets of warnings, one of which was given

minutes before, does not.

Moreover, I cannot agree that the line drawn between

the interrogation undertaken during which the polygraph

was attached and the questioning following the polvgraph

is not an artificial and hypertechnical one. The substance

of the entire transaction was interrogation to which Fields

clearly consented as indicated by his waiver. Although the

results of the polygraph could not be used against Fields

under Missouri law, it is not clear that any admission made

by Fields during the course of that examination would also

be inadmissible. There is substantial support for the rule

that the mere fact that a confession was made in anticipa-

tion of, during, or following a polygraph examination does

not render the confession involuntary and inadmissible.

See 89 A.L.R.3d 230, 236 (1979), and cases cited therein.

I do not believe that Henry v. Dees, 658 F.2d 406 (5th

Cir. 1981) supports the requirement of additional Miranda

warnings after the polygraph examination but before

further interrogation. As noted by that court, the question

is whether a waiver can be viewed as voluntary, knowing,

and intelligent in the total cireumstances of a case. How-

ever, the factual circumstances in Dees are clearly distin-

quishable from those in the present case. It seems apparent

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upon reading the Dees opinion that the court’s conclusion

that the confession obtained was involuntary rested very

heavily on the fact that the defendant in the case was men-

tally retarded. Id. at 411. Moreover, unlike the waiver and

consent to a polygraph which was signed in the instant case

where Fields could at any time during the examination stop

the questioning and request counsel, the waiver in Dees

precluded the presence of the defendant’s counsel at the

polygraph. Id. at 408. This factor was also critical in the

court’s determination that the initial waiver was not valid

when the examiner shifted from the polygraph to a general

interrogation. See id. at 409-10. Finally, it must be noted

that the lie detector examination upon which the examiner

based his statement that the defendant had failed the exami-

nation was never completed. Id. at 410. The Fifth Cireuit

clearly noted the relevance of such a hint of deception by

the police in obtaining a confession. Id. In the instant case

there is no evidence of any mental subnormality on the part

of Fields; it is clear that Fields had a right to the presence

of counsel during all phases of the examination and knew

he did; and there is no evidence that the completed poly-

graph examination was used as a ruse to interrogate Fields

outside the presence of his counsel.

In addition to the fact that I believe that Henry v. Dees

does not support the majority’s conclusion, I cannot agree

that the majority’s opinion is not inconsistent with this

court’s decision in United States v. Little Bear, 583 F. 2d

411 (8th Cir. 1978) (Lay, Bright and Ross). In Little Bear

the defendant was questioned by BIA agents concerning

her husband's death the previous night. She was advised

of her rights and signed a waiver form. Two months later

she was again questioned, this time by an FBI agent who

decided to give Little Bear a polygraph examination. Prior

to taking the polygraph she was given a ‘‘Consent to be

A-19

Interviewed with Polygraph’’ form which she signed. She

was also advised by the agent of her constitutional rights

and she signed that form’s waiver provision. During the

polygraph examination Little Bear was asked if she stabbed

her husband. She responded in the affirmative and said she

wanted to talk about it. At this point she was not reminded

of her right to an attorney or to remain silent. Upon further

interrogation, Little Bear signed a written confession. On

appeal, Little Bear contended that the confession should

have been suppressed because it was not voluntarily given

under the cireumstances. This court held that Little Bear

had voluntarily confessed.

The factors upon which the majority distinguishes

Little Bear are not convincing. First, the fact that Little

Bear had not retained counsel seems to be of little relevance

to the instant case, since Fields, although retaining counsel,

had not asserted his right to deal with the authorities

through counsel. If anything, the absence of counsel in

Little Bear would seem to require a closer scrutiny of the

voluntariness of the confession. Secondly, there is nothing

to indicate that this court’s holding in Little Bear even

remotely turned on the fact that the polygraph form which

the defendant signed might be construed to consent to a

broader interview than just a polygraph. In fact, the court,

in arriving at the conclusion that Little Bear’s confession

was voluntary, knowing, and intelligent, relied explicitly

on the reasoning of the Ninth Cirenit in Keiper v. Cupp.

509 F.2d 238 (9th Cir. 1975), which is factually very similar

to the instant case. In rejecting Keiper’s habeas claim that

he should have been given an additional Miranda warning

after the polygraph, but before interrogation resulting in

a confession the Ninth Circuit stated Keiper ‘‘had been

advised many times of his rights prior to, an’ at the time

of the polygraph test, there is no reason to believe that he

A-20

was not fully aware of those rights during the crucial period

when his final story was taped.’’ 509 F. 2d at 238.

Similarly, in the dispositive passage of Little Bear

this court stated :

This case somewhat parallels Keiper in that Ms. Little

Bear also signed a waiver of rights form before a poly-

graph examination, indicated at some subsequent point

that she wanted to offer a statement, and later claimed

her statement was made involuntarily. Additionally,

in the instant case, as in Keiper, the district court

found Ms. Little Bear had voluntarily confessed and

knowingly and intelligently waived her rights even

though no second, post-polygraph Miranda warning

was given.

United States v. Little Bear, 583 F.2d at 414. The reasoning

expressed in Keiper and Little Bear appears to be general-

ly followed. See People v. Barreto, 256 Cal. App. 2d 392,

64 Cal. Rptr. 211 (1967) ; State v. Henry, 352 So.2d 643 (La.

1977); Turner v. State, 250 N.W.2d 706 (Wis. 1977).

In summary, Little Bear and the apparent weight of

authority would seem to support a holding that under the

totality of the circumstances, Fields’ waiver and confession

was voluntary, knowing, and intelligent when he was clear-

ly advised of his rights on numerous occasions prior to his

confession. This seems especially true in light of the fact

that this court found a voluntary, knowing and intelligent

waiver and confession in Little Bear, a case involving an

unsophisticated, uncounseled, and emotionally distraught

Indian woman. Finally, I would note that I can find nothing

in Edwards v. Arizona, supra, a case clearly distinguishable

from the instant case on its facts and the legal principles

involved, which dictates the result reached in the majority's

opinion in this case.

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For the foregoing reasons, I would affirm the district

court’s denial of the appellant’s petition for habeas corpus

relief.

A trus copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-23

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

EDWARD FIELDS, N

Petitioner,

* N No. 80-1113

C (3)

DONALD WYRICK, Warden,

Respondent.

ORDER

This matter is before the Court on the petition of

Edward Fields for a writ of habeas corpus. After con-

sideration of the Review and Recommendation of the

United States Magistrate and petitioner’s exceptions

thereto,

IT IS HEREBY ORDERED that the Review and Ree-

ommendation of the United States Magistrate be and is

SUSTAINED and ADOPTED and that the petition of

Edward Fields for a writ of habeas corpus be and is DIS-

MISSED without further judicial proceeding.

Dated this 13th day of February, 1981.

Edward L. Filippine

UNITED STATES DISTRICT JUDGE

A-25

APPENDIX 0

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

EDWARD FIELDS,

Petitioner,

v. No. 80-11130 (3)

DONALD WYRICK, Warden,

Respondent.

MAGISTRATE’S REVIEW AND RECOMMENDATION

Edward Fields has filed a petition for federal habeas

corpus from the custody of Donald Wyrick, at the Mis-

souri State Penitentiary. Fields was convicted in Pulaski

County, Missouri on March 13, 1975, of rape and sentenced

to twenty-five years. His conviction was affirmed at State

v. Fields, 538 S. W. 2d 348 (Mo. Ct. App. Spr. Dist. 1976).

Fields has raised some six grounds charging constitu-

tional right denial, which he claims entitles him to federal

habeas :

(1) He received ineffective assistance of counsel in

perfecting his 27.26 motion.

(2) The warrant causing his arrest lacked probable

cause.

(3) His trial jury was selected by systematically ex-

cluding women and blacks.

(4) His counsel was ineffective in attacking his con-

fession.

A-26

(5) He was denied effective assistance of counsel on

appeal.

(6) Trial counsel was ineffective in failing to investi-

gate and interview one Don Butler, a co-defendant.

At the outset, considering petitioner’s Ground No. 1,

we do not feel that this presents a constitutional question.

Title 28 United States Code, §2254 gives the district court

authority to review a state court conviction, but not col-

lateral proceedings, which are civil in nature and beyond

the aura of the Fifth Amendment. United States ex. rel.

Curtis v. People of State of Illinois, 521 P.2d 717 (7th Cir.

1975), cert denied sub. nom., Curtis v. Winois, 423 US.

1023 (1976); Day v. United States, 428 F.2d 1193 (8th Cir.

1970) ; Baker v. United States, 334 F.2d 444 (8th Cir. 1964).

Concerning Field’s contention that the warrant for

his arrest lacked probable cause determination, respondent

urges that this claim not be considered because it has not

been previously presented to the state courts. By failing

to present this issue to the state court, Fields has failed to

exhaust his available state remedies, and the record so

indicates. Picard v. Connor, 404 U.S. 270 (1971). Further,

we might note that even if exhaustion was conceded, argu-

endo, illegal arrest does not void a subsequent conviction.

Gerstein v. Pugh, 420 U.S .103 (1975). Present detention or

arrest might be the proper subject for habeas corpus chal-

lenge, but a conviction will not be vacated on a defective

arrest ground. Id.

Concerning Fields’ allegation in this third claim, that

he was denied due process and equal protection of the law

in that his jury systematically excluded women and blacks,

respondent again contends that this claim has not been

exhausted in the state courts. A review of the record

verifies respondent’s contention. Further, we note that

A-27

challenges to the jury selection system must be made at

the first opportunity or when such facts are shown. Fran-

cis v. Henderson, 425 U.S. 536 (1976); Wainwright v.

Sykes, 433 U.S. 72 (1977); Picard v. Connor, supra.

Fields’ allegations four and five challenge the as-

sistance of his counsel. Specifically, Fields’ claims that

his trial counsel failed to challenge the ‘‘unconstitutional

obtaining of the confession’’ and that trial counsel did not

properly perfect his appeal. As to the confession, Fields’

sole point of appeal was that the trial court erred in over-

ruling his motion to suppress said confession. The con-

fession in question was taken by the Criminal Investigation

Division (CID) of the United States Army after defendant

had been appointed counsel, but without said counsel be-

ing present.

This Court has carefully considered the points raised

by petitioner in his quest for federal habeas and existing

ease law requires that same be denied. However, it is

somewhat disturbing to review the circumstances under

which Fields’ confession was obtained. He had been ap-

pointed counsel. Apparently, the CID and the defendant

agreed upon a polygraph. They solicited and obtained the

necessary waivers to comply with Miranda v. Arizona, 384

U.S. 436 (1966). When the polygraph showed some irregu-

larity, they called in the local law enforcement people, who

pursued the interrogation. Fields’ attorney was not in-

vited nor present for this continued interrogation. It seems

a somewhat empty gesture to appoint an attorney for an

accused with one hand, and then pursue interrogation of

the accused without his attorney under the guise of know-

ing waiver with the other.

Chief Justice Berger, when a circuit judge in Mathies

v. United States, 374 F.2d 312 (D.C. 1967), indicated that

his feeling was that Miranda v. Arizona, supra, would re-

A-28

quire the presence of counsel at all interviews once an

accused was represented. However, this view has not been

unanimously accepted.

We agree with some reservation that it is logical that

an interrogated defendant can waive presence of counsel

either before or after appointment, but after appointment

it would seem that the burden of the proof of said waiver

should be a heavy one. The awesome force and strength of

the CID of the Army, is common knowledge. A simple

soldier surrounded by this array of military officers, who

were subsequently joined by the state police in their inter-

rogation, is in a difficult position to knowingly and volun-

tarily waive his right to have counsel present.

This soldier was convicted of raping an eighty-one

year old woman, who could not identify him because a

pillow case had been placed over her head during the at-

tack. Also, she was unable to identify his hands which she

did see during the attack. His confession, which conceded

voluntary intercourse, was critical to his conviction. The

woman claimed te have been raped four times and one

other soldier, Don Butler, admitted participation in the

affair. The method used by the Army and the sheriff in

obtaining Fields’ confession are borderline. They do find

support in Moore and McConnell, supra. McConnell pre-

sented a confession obtained after a flunked polygraph

test, not unlike Fields. However, in McConnell, the ap-

pointed attorney, although not present at the confession,

had given his telephonic approval of the polygraph ex-

amination.

It is true that the court of appeals did make some

uncomplimentary observations concerning the appeal brief ;

they considered the point regardless, to ascertain if plain

error was committed. The Missouri Court of Appeals found

A-29

that the defendant had voluntarily, knowingly and in-

telligently waived his right to counsel prior to the taking

of the confession. State v. Fields, supra, at p. 350. The

court further found that the defendant had been repeatedly

and amply advised of his rights and that he voluntarily,

knowingly and intelligently waived these rights.

If an accused can voluntarily, knowingly and intel-

ligently waive his right to counsel before one has been

appointed (or employed), there seems no compelling

reason to hold that he may not voluntarily, knowingly

and intelligently waive his right to have counsel pres-

ent at an interrogation after counsel has been ap-

pointed (or employed).’’ Moere H. Wolff, 495 F.2d

35 (8th Cir. 1974); State „. McConnell, 529 S.W.2d

185 (Mo.App. 1975).

Fields’ sixth claim is another allegation concerning

ineffective assistance of counsel in failing to call one

Don Butler, who was a co-defendant, as a defense witness.

At his third 27.26" hearing, his trial attorney testified that

he was familiar with Fields’ co-defendant, Don Butler. He

further testified that Butler was represented by another

attorney, who would not allow him to testify in any stage

of the proceedings that Fields was involved in (Respond-

ent’s Exhibit G-P89). In view of his obvious effort to fol-

low the directions of Fields in using Butler as a defense

witness, his trial attorney could hardly be called ineffee-

tive.

In this circuit, the evaluation of a petition al-

leging ineffective assistance of counsel involves a

*Fields v. State, 572 S.W.2d 477 (S.C.Mo. 1978), is a landmark

case which decided that in all 27.26 motions, there shall be appointed

counsel. Fields had appealed his prior 27.26 motion ruling because of

his statement that he “didn’t know or understand what could be raised on

a 27.26 motion.”

A-30

two-step process. Rinehart v. Brewer, 561 F.2d 126

(8th Cir. 1977). The petitioner must first show that

his attorney failed to exercise the customary skills

and diligence that a reasonable competent attorney

would exercise under similar cireumstances. United

Stutes v. Easter, 539 F.2d 663, 666 (8th Cir. 1976),

cert. denied, 434 U.S. 844 (1977). Second, the petitioner

must demonstrate that he was materially prejudiced

in the defense of his case by the actions or inactions

of his counsel. Nevels v. Parratt, 596 F.2d 344 (Sth Cir.

1979) ; Morrow v. Parratt, 574 F.2d 411 (8th Cir. 1978);

Rinehart v. Brewer, supra.

Therefore, it is the conclusion and recommendation

of the reviewing Magistrate that Edward Fields’ applica-

tion for federal habeas corpus be denied without further

proceedings.

The parties are hereby advised that they have ten

days from the service of this recommendation within whieh

to file objections to same, pursuant to 28 U.S.C. §636(b).

William S. Dabe

UNITED STATES MAGISTRATE

Dated: December 16, 1980

A-31

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1981

No. 81-1245

EDWARD FIELDS, 8 ) Appeal from the

Yhetiant, United States Dis-

vs. . trict Court for the

DONALD WYRICK, Eastern District of

Missouri.

Appellee. |

The Court, having considered Appellee’s petition for

rehearing and suggestions for rehearing en bane and being

now fully advised in the premises, hereby orders the pe-

tition for rehearing and suggestions for rehearing en bane

denied. Judges Ross, Henley and John Gibson voted to

grant the petition for rehearing en banc.

May 28, 1982