Petition — Fields v. Wyrick

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SUPREME COURT OF THE UNITEL

’

Seteober Term, 1983

EDWARD FIELDS,

Plaintiff-Petiti

wer,

NA . wYPRicr

Warder Missour tate Fenitenttar

ele ant-Rerponc ont

MOT \ , EAVE 7 PROCEED IN FORMA PAUPERIS

anc

PETITION FOR A WRIT OF CERTIORARI

FROM FINAL JUDGMENT ENTERED BY THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

JEFFREY E. HARTNETT

BARTLEY. GOFFSTEIN, BOLLATO & LANGE

13 South Bemiston Avenue

Suite 604

‘

St. Louis, Missouri 63105

314/727-0922

Attorneys for Plaintif{-Petitioner

' In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

EDWARD FIELDS.

Plaintif{-Petitioner.

vs.

DONALD W. WYRICK,

Warden, Missouri State Penitentiary.

Defendant-Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Pursuant to Rule 4S of the Rules of this Court, Petitioner

Edward Fields moves the Court for leave to proceed in forma pauperis

and to file the attached Petition for Writ of Certiorart without payment

of fees and costs, and in support thereof states as follows:

1. On May 23, 1983, the United States Court of Appeals for

the Eighth Circuit affirmed « denial of Petitioner's Petition for Habeas

Corpus Relief.

2. The said judgment is in error and in violation of the

Constitution of the United States, ail as more particularly appears from

the Petition for Writ of Certiorari filed herewith.

3. Petitioner is unable to pay the costs and fees of this

proceeding or to give s<curity therefor.

4. Petitioner is represented by counsel appointed pursuant to

the Criminal Justice Act of 1964, and thus no affidavit of poverty is

required te be filed herewith under 18 U.S.C. Section 3006A(d)(6) and

Rule 66.) of the Rules of this Court.

eee ee Eek ae

" > _ =.

; 5S. Leave to proceed in forma pauperis was sought wy

| Petitioner and granted at the District Court level, and on appeal to the

. United States Court of Appeals for the Eighth Circuit. At that time, the

3 Court of Appeals appointed counsel. Leave to proceed in forma pauperis

was not thereafter sought in any court prior to the present motion.

’ WHEREFORE, Petitioner prays that he be allowed to proceed

in forma pauperis and to file the attached Petition for Writ of Certiorari

to the United States Court of Appeals for the Eighth Circuit without

prepayment of costs, and for such other relief as to the Court shall

seem just.

Dated July Li » 1983.

Respectfully submitted,

BARTLEY, GOFFSTEIN, BOLLATO & LANGE

Clayton, Missouri

314/727-0922

Attorneys for Petitioner

QUESTION PRESENTED

On September 25, 1974, Edward Fields was arrested, given

his Miranda rights, and charged with rape. Fields was subsequently

released on his own recognizance and retained counsel. More than two

months later, Fields submitted to «4 polygraph examination at which his

attorney was not present. Immediately prior to the polygraph, Fields

was advised of his rights, and was told he could stop answering

questions at any time of speak to his lawyer. He agreed to submit to

the polygraph without presence of counsel. During the polygraph examine-

tion. one or more of Fields’ answers indicated deceit. Following the

examination, when the polygraph equipment hac been detached, Fields

was asked to explain the evidence of deceit. No Miranda warning was

given at this time, anc Fields proceeded to make a statement to the

examiner which wes later used against him at tria:, leading to his

conviction. The question presented in this Petition ts whether Fields’

right to counse, under the Sixth Amendment was violated when the

government agents continued to interrogate him without counsel, beyond

the polygraph examination to which he head agreed.

Motion For Leave to Proceed In Forma Pauperis i

Questions Presented I

Table of Authorities itl

Cases 1tl

Constitutional Provisions itt

Statutes Il

Opinions Below j

jurisdictional Statement 2

Constitutional Provision 3

Statement of the Case 3

Reasons For Granting the Writ é

Appendices

A. Opinion entered May 23, 1963, United States

Court of Appeals for the Eighth Circuit A-}

B. Opinion entered November 29, ‘%e,

Supreme Court of the United States A-7

C. Opinion entered April 23, 1982.

United States Court of Appea

for the Eighth Circuit A-2\

D. Order issued on February 13. 191,

United States District Court,

Eastern District of Missouri.

Eastern Division A-é2

E. Report and Recommendation of the

United States Magistrate issued

December 16, 1960, United States

District Court, Eastern District

of Missouri, Eastern Division A-é3

F. Order entered May 28, 1982,

United States Court of Appeals,

for the Eighth Circuit A-49

itl

TABLE OF AUTHORITIES

CASES

Brewer v. Williems, 430 U.S. 3867, 97 $.Ct. 1232.

. . . ‘ivi?

Fields v. State of Missouri, 572 $.W.2d 477 (Mo.App. $.D. 198

Fields v. State of Missouri, 596 $.W.2d 776 (Mo.App., 5.D. 1960

Fields v. Wyrick, 682 F.2d i54 (8th Cir. 1982

Fields v. Wyrick, No. 81-1245 (8th Cir... May 23, 1983

Henry v. Dees, 658 F.2d 406 (Sth Cir. 198)

Kirb . lllinmois. KAR U.S. 682, ws 3S. t. 1877.

”

—

’

Massiah v. United States.

4% L.EC. OBZ (195

Miranda v. Arizona, 38< §&. 636, 8 §.Ct. 1602,

ee © ~

United States v. Bayer. 33) U.S. S32. 07 S.Ct. LIM,

Ji L.Bd. i656 (1947)

United States v. Henry. 447 U.S. 204, 100 $.Ct. 2)

O05 L.ed. 115 (Se

Wyrick v. Fields, U.S.

ek, Sct. SZ, \*- 214 1982

load

’

CONSTITUTIONAL PROVISION

United States Constitution, Sixth Amendment

STATUTES

28 U.S.C. Section 125411

28 U.S.C. Section 210lic

LAW REVIEW ARTICLE

Note. Proposed Pequirements for Waiver of the Sixth

Amendment Fight to Counsel, Be Colum. L. Mev. so (1982)

in The

SUPREME COURT OF THE UNITED ‘STATES

Setober Term, 1983

EDWARD FIELDS.

Plaintif{-Petitioner.

Vs.

DONALD W. WYRICK,

Warden. Missouri State Penitentiary.

Defendant-Respondent.

PETITION FOR A WRIT OF CERTIOBRAR!

FROM FINAL JUDGMENT ENTERED BY THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRiT OF “ERTIORAR!

Petitioner, Edward Fields, respectfully requests that a Writ

of Certiorari issue to review the fina: order of the Eighth Circuit Court

of Appeals in this case.

OPINIONS BELOW

This Petition arises, as the culmination of a series of

opinions which began when Fields sought # Writ of Habeas Corpus in

Federal istrict Court. On#¥ebrus.y 13, 1981, Fields’ Petition for Writ of

Habeas Corpus was denied by United States District Court ludge Edward

L. Filippine, United States District Court, Eastern District, Eastern

Division of Missouri (Appendix D), for the reasons stated in the Report

of United States Magistrate, William Sahn, which was issued December

16, 1980 (Appendix £). The District Court's denial was appealed to the

Eighth Circuit Court of Appeals and reversed. Fields v. Wyrick, 682

F.2d 154 (Sth Cir. 1982) (Appendix C). Following the denial of a petition

for rehearing en banc (Appendix F), @ Petition for Writ of Certiorari

was granted. The Supreme Court of the United States reversed the Eighth

Circuit Opinion based on the Fifth Amendment issue, and remanded the

case to the Eighth Circuit for consideration of the Sixth Amendment

issue. Wyrick v. Fields. 103 $.Ct. 394 (1982) (Appendix B). On remand

to the Eighth Circuit, the trial Court's denial of Fields’ Petition for

Habeas Corpus was upheld in the case styled: Fields v. Wyrick, No.

81-1245 (8th Cir. 1983! (Appendix A). This Petition for Writ of Certiorart

results from that Opinion.

JURISDICTIONAL STATEMENT

28 U.S.C. Section 1254(1) states that cases in the Courts of

Appeals may be reviewed by this Court:

By writ of certiorari granted upon the

petition of any perty to any civi, of

criminal case, before or after rendition of

judgment or decree.

Title 28 ©.S.C. Section 210lic) states that:

Any other appeal or any writ of certiorari:

intended to bring any judgment or decree in

a civil action, suit or proceeding before the

Supreme Court for review shall be taken or

applied for within ninety days after the

entry of such judgment or decree . :

The Eighth Circuit's Order upholding the denial of Edward

Fields’ Petition for Writ of Habeas Corpus was issed on May 23, 1983.

The Committee Comment to Rule 15 of the Eighth Circuit Rules of

Appellate Procedure provides that:

[a] petition for rehearing is not 4 pre-

requisite to the filing of a petition for writ

of certiorari in the Supreme Court.

Therefore, the final judgment of the Eighth Circuit is properly sought to

be reviewed by a request for writ of certiorari made within ninety days

from May 23. 1983.

—

“i

» je

United States Constitution, Sixth Amendment, reads as follows:

In all criminal prosecutions, the accused

shall enjoy the right to «a speedy and

: public trial, by an impartial jury of the

State and district where the crime shall

have been committed, which district shall

have been previously ascertained by law,

and to be informed of the nature and cause

of the accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and tc have the Assistance of Counsel for

his defence.

STATEMENT OF CASE

Appellant Edward Fields, formerly a soldier stationed at Fort

Leonard Wood, Missouri, was arrested and arraigned on September 21,

1974. for the alleged rape of a Waynesville, Missouri woman, and was

released on his own recognizance. After his arrest, Fields retained

private counsel. While om his own recognizance, he agreed to submit to

& polygraph examination without presence of counsel. His counsel under-

stood that the results of the polygraph were to be used merely to show

deceit or non-deceit, for purposes of pre-trial negotiations.

Prior to the polygraph exam on December <4, 1974, Fields was

given his Miranda rights. He signed a written consent form, and agreed

to submit to the examination without presence of counsel. When the

examination was completed, the examining government agent advised him

that there was some deceit indicated by the polygraph. and asked him

for an explanation. Fields then admitted to having consentual inter-

course with the victim. The agent then asked Fields whether he wished

to discuss the matter further with another agent and with the

Waynesville Chief of Police. Fields agreed to do so, and after another

Miranda warning. he repeated his statements.

On March 10, 1975, Fields was charged by information with

rape. He filed a pre-trial motion to supress the testimony of the

examining agent. the other government agent who hearc his statement,

and the Waynesville Chief of Police. That motion was de ited.

On the basis of the statements made afer the polygraph

examination, Fields was convicted of rape by 4 jury. The conviction was

affirmed on appeal. State v. Fields. S38 5S.W.2d 348 (Mo.App. 1970).

Motions for post-conviction relief were all denied. See Fields v. State of

Missouri, 5% S.W.2d 776 (Mo.App. 1980); Fields v. State of Missouri, 572

S.W.2d £77 (Mo. 1978). Federal jurisdiction was invoked when Fields

sought a writ of habeas corpus in Federal District Court.

REASONS FOR GRANTING THE WRIT

The Sixth Amendment right to counsel attaches at or after the

initiation of adverse judicial proceedings, consisting of either a forma)

charge. preliminary hearing. indictment, information, or arraignment.

Kirby v. Iliinots. 406 U.S. 682 (1972). When crimina: proceedings are

initiated, the Defendant is most in need of the government's committment

to assist him in the intricacies of criminal law.

Having been arraigned and released on his own recognizance

at the time of the polygraph examination, Fields was within the scope of

adversary judicial proceedings and was thereby entitied to the pro-

tection of the Sixth Amendment right to counsel. He exercised this right

by obtaining private counsel. When his attorney advised him to take the

polygraph examination to test for deceit or non-deceit, Fields agreed to

do so. The attorney's advice was limited to testing for deceit or

non-deceit; the attorney did not advise Fields to continue answering

questions once the examination was completed. Thus, when Fields

responded to the examiner's questions regarding the results of the

polygraph test, he did so without advice of counsel.

The Fifth Amendment issue -- whether Fields had waived his

right to remain silent -- was resolved against Fields by the Supreme

Court in Wyrick v. Fields, 103 S.Ct. 394 (1982). However, the Sixth

Amendment issue -- whether Fields also waived his Sixth Amendment

right to counsel -- remained open for decision. Id. at 397.

The Fifth Amendment right may be waived without con-

stituting a waiver of the Sixth Amendment right to counsel. Rhode Island

vy. Innis. 646 U.S. 291. MO ne. & 1980). Determination of the Sixth

Amendment issue has a different focus than that of the Fifth. Where the

Fifth Amendment is concerned, the ultimate question is whether the

suspect made his statements voluntariiy., thereby waiving his right to

remain silent. Because f the inherent compulsion of a custodial inter-

rogetion, the Supreme urt has given the suspect the right to have

counsel present to protect this Pifth Amendment rignt to remain silent.

Miranda v. Arizona, Bs S&S. 6%. 6S 1966). It was this Fifth

Amendment right that was heid ¢ have been vecluntarily waived in the

prior Supreme ourt pinion in this case.

However. whether there has been a waiver of the Sixth Amend-

ment right to counse is determined differentiy. Te carry its heavy

burden of proof, the State must show more than mere voluntariness of

the Defendant's statements. he State must prove that the Defendant

intelligently. Knowingiy. and intentionaiiy relinquished his right to

7, 404 (1977).

have counsel present. Brewer v. Williams, 430 U.S. 3B

Where adverse judicial proceedings have been initiated, as here, the

Sixth Amendment forbids ll efforts by the State to deliberately elicit

information without presence of counsel. United States v. Henry, 447 U.S.

2%L at 273 mn. 11 (1980): Massiah v. United States, 381 U.S. 356 (1965).

“Deliberate elicitation” need net be in the form of coercion: actual

intent to felinquish the right after a meaningfully timed Miranda

warn:ng must be established. Henry v. Dees, 658 F.2¢ 406 (5th Cir.

198}).

Defendant, under advice of his attorney. submitted to the

polygraph examination and waived his Sixth Amendment right to counsel

during the exam. However, he did not waive that right during the post

exam interrogation.

Fields’ counsel) was of the understanding that the polygraph

would only be used to show deceit or non-deceit, strictly for purposes of

pre-trial negotiation. Yet, once deceit appeared on the polygraph and

the examination was over, the examining officer initiated a conversation

during which Fields admitted consensual sexual intercourse. No Sixth

Amendment rights had been waivea concerning this conversation.

Even had he been given his Miranda rights again, the

answers he gave were stil) “deliberately elicited” by the State in

vico.atior his rights as set out in Massiah v. United States, supra,

and nited States v. Henry, supra. The Supreme Court, by consistentiy

exciuding statements deliberately eiicited in abdsence ~ counsel, has

demonstrated a higher standard of protection for the accused than that

accorded by the Fifth Amendment. Thus. the ourt has recognized the

significan’ roie munse| plays after charges have been filed. See Note,

Proposed Requirements for ®aiver of the Sixth Amendment Right to

ounse 82 slumbia Law Review 962

As a result of the examiner's deliberate elicitation cf infor-

mation after the conclusion of the polygraph examination, Fields’ Sixth

Amendment right to counsel was violated. This same information, later

repeated to the police after Miranda warnings were given, is also

inadmissible under the “cat-out-of-the-bag” doctrine. United States v.

Bayer. Sil U.S. S32 (1947

In summary. the statements made by Fields after the poly-

graph examination concluded should not have been admitted into evidence

because the post-examination interrogation violated his Sixth Amendment

right to counsel. Since Fields’ conviction was based on these statements,

certiorari should be granted in order to better delineate the standard

for waiver

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United States Court of Appeals

Pere Theh be eet

No. 81-124

Edward Fields, .

Appellant, .

v. . Appeal from the United States

° District Court for the

Donald Wyrick, ° Eastern District of Missouri!

Appellee.

Submitted: January 3, 1987

Filed; May 23, 198%

_— ee oe ee

Before LAY, Chief Judge, MEANEY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This case is once again before the court for consideration

of the issue of the sdmiasihbility of an inculpatory statement

made by petitioner during post-polyaraph test interrogation

conducted in the absence of petitioner's counsel. For oresent

Purposes only a brief outline of the relevant factual and

procecural history is necessary,

ee ee ee ee eee —o—-— «

lPor @ more thorcouan discussion of the facts and history of

this case, see Pacis ¥; meee. 682 F.24 154 (Bth Cir.), rev'd

per curiam, 103 &.Ct, { 2).

Petitioner Edward Pields, then a soldier in the United

States Army, was arrested on Septeaber 25, 1974, and charged with

the rape of an eighty-one year old woman. At the time of his

arrest he was advised of his rights under Miranda v. Acizona, 384

U.S. 436 (1966), including the right to have counsel present

Guring any interrogation. Upon the advice of counsel, Pields

requested a polygraph examination which was conducted on

December 24, 1974. Fields’ counsel was not present during the

@xamination. Prior to administerina the polygraph, a government

agent gave Fields a written consent document, which Pields

signed, informing him of his Miranda rights, and of his rights

under the Uniform Code of Military Justice and the eighth

amendment. In addition, the agent read to Fields a detailed

statement of his rights, specifically advising him that he had

the right to have an attorney present during the questioning and

that: “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 @ lawyer before answering further, even if you sign a waiver

Certificate.* State v. Pields, $38 S.W.24 348, 350 n.l (Mo. Ct.

App. 1976). When asked if he wanted a lawyer at that time,

Pields responde!t, *No.* 14.

After the Polygraph examination was complete, the government

agent advised Pields that the test indicated some deceit and

asked him if he could explain why some of his anawers were

bothering him. Fields then admitted having consensual sexual

intercourse with the woman on the day of the alleged rape. After

being again advised of his Miranda cights, Fields repeated this

confession to police officers.

On March 13, 1975, petitioner was convicted by a jury of

rape. Fields’ subsequent petition for a writ of habeas corpus

under 28 U.S.C. § 2254 (1976). alleging, inter alia, that his

conviction was based upon an involuntary confession, was denied

by the district court. The majority of a panel of this court

-2?-

reversed the district court on the grounds that evidence which

was used to convict Picelds was oocuined in violation of his right

under the fifth amendment to have counsel present at the

interrogation. Pields v. Wyrick, 682 F.24 154 (6th Circ. 1982).

Specifically, the majority concluded that the governaent had

failed to prove that Fields “knowingly and intelligently waived

his right to have counsel present st the post-test

interrogation.” Id. at 160. The Supreme Court granted

certiorari, reversed and remanded to this court. Wyrick v.

Fieids, 103 S.Ct. 394 (1982) (Per Curiam). On remand the Court

apparently left open the issue of whether the post-polygraph

interrogation violated petitioner's sixth amendment right to

counsel. See id. at 397; id. at 400 (Marshall, J., dissenting).

Having granted petitioner's request tc consider the sixth

amendment issue, and having thoroughly reviewed the parties’

briefs concerning this issue, we now hold that petitioner validly

waived his sixth emendment right ft have counsel present et the

post-examination interrogation. Consequently, we conclude that

Fields’ incriminating statesent was voluntary and was properly

admitted at his trial.

We recognize that the fifth and sixth amendment rights to

counsel may apply in different contexts and have different

purposes. See, ¢.g., Edwards v. Arizona, 451 U.S. 477, 4860 n.7

(1981); Rhode Island v. Innis, 446 U.S. 291, 300 n.4 (1980);

United States v. Surridge, 687 F.2d 2£0, 253 (8th Cir.), cert.

denied, 103 S.Ct. 465 (1982). We also acknowledge that in some

ciccumstances a waiver of fifth amendment rights may not

constitute a waiver of the sixth amendment right to counsel.

Wyrick v. Pields, supra, 103 S.Ct. 400 (Marshali, J.,

dissenting). See, e.g., United States v. Mohabir, 624 F.24 1140,

1147-48 (24 Cir. 1980). However, in the contex’ of the instant

case where the defendant had previously invoked his right to

counsel, it is relatively clear that the validity of any

subsequent waiver of either the fifth or sixth amendment right to

-~}-

counsel is judged by essentially the same standard. To prove a

w.ver the government must stow that uncer the particular facts

and circumstances of the case there was a voluntary, Knowing and

intelligent apandonment or relinquishment of a known cight or

privilege.? See, ¢.9., Edwards v. Arizona, supra, 451 U.S. at

482 (fifth amendment right to counsel); Brewer v. Williams, 430

U.S. 367, 402 (1977) (sixth amendment right to counsel).

Petitioner, relying heavily on Brewer v. Williams, Supra,

argues that his sixth amendment right to counsel was violated

when the interrogation at the polygraph examination went beyond

the scope of an “agreement® between appellant's counsel and law

enforcement officers to limit the examination to questions

Gesigned to revesl deceit. Petitioner maintains that any waiver

of his right to counsel made prior to the polygraph examination

must be viewed as limited to this portion of the examination, ani

that he did not waive his cight to have counsel present during

the post-test interrogation. 3 To substantiate his assertion

2we note that this is apparently the standard employed by

the Supreme Court in concluding that Pields had validly waived

his fifth amencwent cight to have counsel present st the post-

test interrogation. See Wyrick v. Fields, supra, 103 S.Ct. at

395-96.

7In Brewer v. Williams, 430 U.S. 387 (1977), the Court held

that the defendant, Williams, had not waived his sixth amendment

right to have counsel present during interrogation thet occurred

while the defendant was being transported by authorities. The

Court's conclusion that the ctate had failed to “prove ‘an

intentional relinquishment or abandoment of a known right or

privilege,'* substantially rested on the fact that an undisputed

egreement existed between Williams’ counsel and the authoricies

to the effect that no interrogation would take place during the

trip, and that despite this fact the authorities deliberately

elicited incriminating statements from Williams without advising

him that he had a right to have a lawyer present and without any

“effort at all to ascertain whether Williams wished to relinquish

that right.” Id. at 404-05. It is relevant to note that the

Court did state that it was not holding “that under the

circumstances of this case, Williams cout: without notice to

counsel, have waived his cights under t Sixth and Pourteenth

Amendments." I4. at 405-06 (footnote omitted).

-~4-

concerning an agreement petitioner relies on a statement made by

his counsel at the suppression hearing to the effect that it was

counsel's and Pields' understanding that the request was only for

@ polygraph to be run to show deceit or nondeceit for purposes of

pretrial negotiations. We cannot agree with petitioner that this

statement supports the existence of any “agreement* limiting the

scope of the interrogation, and we believe that petitioner's

argument in this cegard has already heen rejected by the Supreme

Court:

The Court of Appeals stated that there was no indication that

Pieldc or his lawyer anticipated that Fields would be asked

questions after the examination. But it would have been

unreasonable for Fields and his attorneys to assume that

Pields would not be informed of the polygraph readinss and

asked to explain any unfavorable result. Moreover, Pields

had been informed that he could stop the questioning at any

time, and could request at any time thet his lawyer join

him. Merely disconnecting the polygraph equipment could not

remove this knowledge from Fields’ mind.

Wyrick v. Pields, supra, 103 S.Ct. at 396 (footnote omitted).

The rccord in this cace discloses that Fields not only

initiated a conversation with the authorities, but that “[bly

requesting a polygraph examination, he initiated

interrogation.” Wyrick v. Fields, supra, 102 S.Ct. at 396.

Moreover, there is clear evidence that Pields was fully informed

and understood prior to the examination that he had a right to

have counsel present at the interrogetion, to stop answerina

questions and to speak to an attorney at any time, and that he

expressly waived those rights pricr to the interrogation. Under

these particular facts and circumstances, we must conclude that

petitioner voluntarily, intelligently, knowingly and

inte:..ionally relinquished his sixth amendment right to have

counsel present at the post-test questioning. Accordinaly, we

See Wyrick v. Pields, supra, 103 S.Ct. at 396; Fields v.

Wyrick, supra, 682 F.2d at 162 (Ross, J., dissenting).

afficm the decision of the district court cenying Pields'

petition fer habeas corpus relief.°

A true copy.

Attest:

CLERK, U. S. COURT OF APPCALS, EIGHTH CIRCUIT.

SPields has raised several other claias on his a al from

the denial of a writ of habeas corpus, including challenges based

on ineffective assistance of counsel, improper jury selection,

and lack of probable cause supporting the arrest warrant. After

thorough consideration, we find these claims to be without merit.

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— ——2

SUPREME COURT OF THE UNITED STATES

DONALD W. WYRICK, WARDEN v. EDWARD FIELDS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUTT

No &-1S4 Deckted November D. 12

Justice STEVENS, concurring.

There is much force to what JUSTICE MARSHALL has writ-

ten in dissent. I share his concern about the Court's practice

of deciding cases summarily, partly because there is a special

risk of error in : ammary dispositions and partly because the

practice represents an unwise use of the Court's scarce re-

sources. I do not, however, agree with Justice MARSHALL.'s

suggestion that we should invite the parties to submit briefs

on the merits before a case is summarily decided. | fear that

the institution of such a practice would tend to reguiarize and

expand the number of our summary dispositions.

In this case | believe the correct procedure for the Court to

have followed would have been simply to deny the petition

for a writ of certiorari. No conflict has yet developed on the

precise question presented and, as JUSTICE MARSHALL dem-

onstrates, the Court of Appeals’ conclusion is not without

reasoned support. The Court, however, has granted the pe-

tition. Although I voted against that action, | am now per-

suaded that the Court's resolution of the merits is correct and

therefore join its disposition.

SUPREME COURT OF THE UNITED STATES

DONALD W. WYRICK, WARDEN +. EDWARD FIELDS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNTTED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUTT

No. 2-158 Decided November 29, [set

Justice MARSHALL, dissenting.

A summary reversal is an exceptional It

should be reserved for situations in which the applicable law

is settled and stable. the facts are not disputed, and the deci-

sion below is clearly in error.’ Because | do not believe that

this is such « case, | dissent.

I do not agree that respondent's consent to the polygraph

et TLLI EE

re Taine

i ie te

: ql

imines

‘Sew generally Brown, Foreword: Process of Lew. T2 Harv. L. Rev. 77

as),

that he will be subjected to a post-<xamination interrogs-

tion." While in some cases the prosecution may be able to

prove that a suspect knew there would be questioning after

the test, here there is “no evidence that Fields or his lawyer

anticipated that the CID officer would attempt to elicit in-

criminating statements from Fields after the examination

wes run.” 682 F. 2d 154, 160 (CAS 1982).

Ln any event, I do not believe that this substantial constitu-

tional question should be disposed of summarily. | recog-

nize, of course, that this Court's expanding docket has in-

creased the pressure to accelerate the disposition process.

cannot agree, however, that summary reversal is proper in

WYRICK « FIELDS |

decisions. If the Court conclud:s that there are “special and

important reasons,” Sup. Ct. Rule 17.1, for granting certio-

rari but also concludes that this case should not be set for oral

ee ee See

94-96 (1958).

mand whether the interrogation nevertheless violated huis

“exchastvely on the Fh Amendmest.” Ants. at 6 Although the opinion

below does discuss Edwerds ¥. Artzons, 461 U. S. 477 (1981), at consider.

Abie length. Ure court phrased ite hokding in terms of the “right to counsel”

without referring specificaly to the Fifth Amendment or the Surth Amend.

ment. See GF 2d. ot 157 (“we conctade that Picks did not knowingly

cunalory statement Ural Une ‘be-detector showed be was lying, he waved

hus right to Une protection of counsel in Ue vercrve situation >) See also

id, ot 161 & 12 (retying om Brewer +. Williams, 0 U.S. SAT (1977), 2

Sixth Amendme | case) It is noteworthy thet the Magistrate, whose re-

port the District Court adepted. pounted to the Sixth Amendment probiem

by observing that it @ “s somewhat empty gesture to appotnt an attorney

for an accused _ . and then pursue an interrogation. . . without his attor-

ney.” In addition, the petition for certiorari asserts that the decision

below “expands the rights guaranteed an accused during interrogation

ander the Fitth end Sisth Amendments.” Petition for Certiorari at 7 (em-

phames suppoed —

In amy event, since the Court today construes the Court of Appeals’ optn-

jon as resting solely on the Fuh Amendment. the Sirth Amendment seve

remains open on remand

Al?

WYRICK « FIELDS

acum tame

before decid-

Mosley, as

in the re-

are

ae ee

41 U.S, a

the privilege

from coerc-

ose.

3 con-

Tes ene

a valid

« differ-

we eres.

cout

eS on

ais, Hie

E £58

i eli ay Hit

E :

Hel

A-I8

——— oe — - — —

WTYRICK « FIELDS s

U. S. 4, 57 (1982). To give effect to this protection, this

Court has insisted that the State deal with a defendant

forts to elicit information from him in the absence of coun-

sel, regardless of whether he is in custody, see [United States

v. Henry, 47 U. S. 264, 273-274 n. 11 (1980); Masnick v.

United States, rupra, and regardless of whether the tech-

nique used tc extract information is in any way coercive, see

McLeed ¥. Ohio, 381 U. S. 356 (1985).

fendant intelhgently and knowingly relinqushed his right not

“a «

— ss —_ —- —— - - _

when the Sixth Amendment right to counsel has sttached."”

Usted Sta'es v. Mohabir, 624 F. 2d 1140, 1147 (CA2 1980),

quoting Uvrated v. Massimo, 432 F. 2d 324, 327 (CA2 1970)

(Friemity, J., dissenting) (majority did not reach the issue),

cert. denied, 400 U. S. 1022 (1971). Today's decision there-

*See Unsted States ex rel O'Connor v. New Jerecy, 5 F. Od G32.

(CAT), cert. denied, 996 U. S. 923 (1989) Hancock + White, 378 F. 2d

b F.

—— a

——

arpennix 9 C

UNITED STATES COURT OF APPEALS

POR THE EIGHTH CIRCUIT

NO. 81.1245

EDWARD FIELDS, » Appeal from the

Appellant, | United States Dis

| triet Court for the

sr Eastern District of

DONALD WYRICK, Missour:

A ppetler j

Sobmitted: September 17, 1991

ted: April 2, 1992

Before LAY. Chief Jadge, and HE ANEY and ROSS, Cir

eat Judges

HEANBEY, Cirruit Judge.

Edvard Fields appeals from the district court's denial!

of his petition for habeas corpus relief filed pursuant to

2 US.C ¢ 22. We reverse the lower court on the ground

that Fields’ state court conviction was oj tained as a reewilt

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, Missoor) woman

on September 21, 1974. He was convicted br a jinry on

A-al

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eel as wet invited to be present, nor was he informed

that the text wonk! he given that dar Before the pol

ray camination wae given, Fiekle wae alviert? that

le had the rich? to remain silent and to hare an attornes

preeent, at! he ehened a written form consenting to the

et smnatior

After the examination wane completed, Rowrne tald

Fielkle that there ‘‘had heen same deceit’ awl ackesl hin

if} hal «we exaplagation ae te wl hie ahewere Were

hevthermwe him. Fickle threnmen «fated that he had had in

termes with the cretim on Sentomher 81, 1974, let that

she lowl tnetient-~!l aml eonsented te the eantact. Reurne

them wehkeel Piehl« if he wicher! te slieewee the matter far

ther with anather CTD agent, Charlee Pann. and the

Warnescille Chief of Police, Jom< Cole Piekle aereet

to che oe Polier Ohief Cale eave Fickle the Miraeda warn

ings hefere questioning him Piekle repeated te Cole and

\eoent Fi on hie oeennnt af what hannene! an & ntember 21

re. that the eletem had ealentaritc enced in eeenal rela

trone with him af her reeilenee

Fieli« sought to enpprees the testimony of Police Chief

tle and \cents Rearne aad Fann reqanling bie ‘eon.

fowsvon”' te voluntary intereouree On the dae of Pielble’

trial, « hearing wae held on Fiehle’ motion, at the eonein

son of which the trial eourt «tated the following:

Well, I'm coing te averrle the Votion te Sanpress

far the reaeon that thie defewlant on several acen

shone “ae miviesd what hie riehte were

Te"« trwe that he wae renreeented hy conned and

he talker! te counsel ahowt it Amel while I'm inelinest

ty heliewe that we ooeht ta make ccere effort be pre

teet the erehts of indivulaale, erent them their eon.

*titutional rights, etill, after the defendant ie acheter

ot of he entien bot we os va Le ee ‘ what

A-a3

his rights are, then he voluntarily requests ome pets

himself in position for making statement= © wh ith

the wederstanding that they might be veel aon

him, ¢ think that in thie cace that he ware thee

richt« and [T woakd have te avenente the Moti *

Sapprese

The treal eovart sid not enter e riften firmlinge of foot ‘

courlucione of law on the motion te enppress

The propriety of this eabing was the code reene ture 1

in Pieble’ chreet ap en! of bie concretion The Mieseur

Court of Apurals tated that Piekle” pleadings or brivt>

did nat preserve onething for appellate review, hat went

on te betefly * cometder Prelbe” comet toetrerneal eter mnebet

a ‘plan error” stamlant Stete vr. Bielde, capra, 0s

SWAN at 349-0. The court concluded that the motien te

eapporess ware property denied’ heramse rletondant had heer

repeatedly and amply advised of his rieht« fond) volo.

tarile, knowingly and intelligently waiver! hie rights.” fi

a ow.

We are mindial of the Sepreme Court's recent ob

munition that in fedora] hahens corpus proceedings the

court must apply a presemption of correctness t) Jaetunl

determinations inale bw the state courts, See Sumerr ¢

Mote. 0 1 Reb dd P22, TU C191), The appieatte statuty

porernieles Phat thie °° petesneemypvtieen ef correctness” apples

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

merits of a fnetunl ieane © * * evidenced hy @ written fim!

ing, written opinion, or other reliable and arleyuate writ:

ten iwlicia.”’ 2s USC. | 224041), The presumption dow

not. of course, attach to a state court's reselation of 4

question of federal law or to “a mixed determination of

law rl fev that requires the application of legal prin-

ciples to the historical facts of [a] ene.” Conder «, Salle

— -<-2@ -<

» 4eT S %, 267 (198D)* As thy Sapreme Court had.

Perrtenl bes ston [f whether of oot a defemlbant a

| bie cometitntional richt« is not one of

fact bet af fe ral law. See Breaeer ¢ WW: haws, 42=0T *

~) ' 4 (197). Neeontlinely, we have accepted th .|

buget primary of histories! facts’? determine! } thee

ttute coarte while independently reviewing the ] cn! coun

“n therefrom

\fter a earefal rewiew of the reearnd aml th «tat,

' fe, . © comelole that Fietds Inet knew ine!

stl pete nilt wapte bee ¢ -ht tes fom erernee) pres 1

at? ber Cre tee eet ilel she Pehla’ inerimina’

' ‘ Wate, t bbl 2 = (14S) » tet

tha "“ + epeeledd thee peries by heokling that t's

S ot Nl et compet with § 22%4id) even thoegh

—_- * dug nol ath th tute cot “er tf

-t . ty dtu tot the « seal oot mer the facts

; ’ "7 “ f | 7 ee” ie v3 We wv oe +

wel ys . 7 + oe of tree at i

s! “oe sh . “ ‘an crt

; of ‘ frul « re ‘ wert onhk 4. im th

'o “t weet, the comet cloak afer by @ combos ane a

th gurbe “ons fran th t tid ewan of creritoe 6” bey

lw ape'h teh 7 e738. she meewwite © chk or’ weeettes! thet “sxer »

v4 le my oe rf the fee + of the highest coat of

4 at for oe it leah with the apell-wtion of th United States Con

titutie cm lame tee the feete in pete id «a ">

Cuders Seleen HAUS WIS 142 1680

ee hewe eeted the trtel court did cet enter ov elention frewle -

vel he epee” te commt merely peeviled «brief eoplicution of same ai

the coowmtances heedieg ap te Fiedts crmifrscieen. Became we fie! thot

we rmertiel the spew 's cement’ teed of the wtey af Cente 6 ines eitenst

vt) cone crew tere hae the predperer o< oweluntear. «e need are

cow hh the ie od whether wetine DIT ys strictures appl to that

cont s beet “phere cover” review of Fields chem C¥ Sumer c Wate.

ope, OLD ot TWF PORE) saute: ty state spnellite court

Fewtimare muh after plenary crrvaiterstinn af retitienars’ claim inching

revew of cate comwt reward!

A-as

_—— en

e-*e _— ene

ing statements were, therefore, not voluntarily made ar!

sheald have heen suppressed"

It has heen clear since Miranda « Aricews, 284 TS

3 (100K), that ‘the right to hate counsel present af fan]

interregation i« tadi=peneable to the protertion of the Fifth

Amemiment privilege’ against eff inerimmation, I at

uP Thix aspect of the Vira’ s rolooe reflert< the Covet’.

eoneemn that ‘the elreametanee< <orreonding inon-tewh

inferregation can operate tery qmickiy te ons erbear the «il!

ef one merely made aware of bis privilege bee hie enter

regators “* le

The mnoertaree of the nicht to have conned present

cure ao eextedial inferreestion ha< reenth: recetoes!

renewer! cmplase In Awardee cr deere, G1. FLD!

Ts CTS the Sapreme Cenrt hell that ence a spect

invekes hie rheht te emmeel, he ix get subject to fartins

inferm gatos metil comme ix mrevided to him, anbess the

sport lumcelf initiates dialegwe with the aatheritie«

In «o ruling. the Coert apperentt: semcht te hattress the

rich? to eoonsel be ereating a per « mule restricting the

dreimstewes< omer whieh a evrt can fined that the rich

hae hoot waived. See Note. Bdwards vr. drizowa: The Rera-

re Conrt eo athe. New Lite lete Mivaada, 18 Cal Lo Res

TTS, PTH TAT CPUS DD. Of eetive criteria controls the wav

et determination when a saepect has invoked the righ

te commael: eather counsel must be present at subse ynent

erateslial interregations or el<e the dialegne at ieene must

have heen initiated by the aceused. Pad

Te ce 6 ee Gestion that @iekls “comdicwsis” was austertal ty be

cork tem boemmse, belies eel, it defindtivels evtableched that Fields ha!

seteoroerne ccith the victim em the cin od the cape The rape victim sewer

caw her awcsilant. exoopt for his hand, tecanme her face was covered by = 2

4 pillow cane theomghewt the ascot, When avked at tris! @ the defendant's

hod voas the ome she caw that day. the victim seplied “no.”

A-R6-

as ih ane : , 3 4 at oe “

7) ate | ean. a. epee” a eee LS ee | es ote

—_—

- -~«

—-

| “T * r ennanmerat« F varda ieee not re

. ’ }** pe een? het F elle rm! hin ove ee} ma

tually agrTe that Frekl« shoukld take tt} parle yct spe ‘

Be aft } ‘ ' hi } ’ t bie vr ‘ ’ wb? ‘

anne seal «fates! that ! lel pet want ne pre«

ne t a 7 r le the } ti ates! ‘

‘ e ge we ‘ , se aft } ere ' tw on

’ _ L ¢ \ ; / a) .

} a a } * . " | .*

' ee r ’

( * a? ‘

; ; } . y 1

‘ ] " . '

e th Peale?

’ ; ory fet he . | thee ter fac? * 1’

’ o) peeve? thet ‘ roi” 1 hie ' "4. with

; ’ ritvr

} Ire: , « ox 1. Feld at te nt T hie

level previn i! » slefomlant hax kn wm ieee arel

lonwtariivy waived hee rect? te have @otnsec! pres nt of

inferrercnt wen fest. ewith the quevernenen?, nl the Sy

preme t'onrt has characterize: that hurien as a ‘*heary”’

cont . Wir soda lyri fone «npr, AS4 7 S. at 455

———— —

The fat t : i ' t wactiog wets th 7” un

bows ed rreuler washer wet. teem t ——— the «ta?

“ te “augers rede chuwdes the tarebee! ln whack the cures

cli ewm a «awe des rmine’ Now «a th tere gation “or te

tealeal” senmnpely be Piekic + = wet be pal? af the theme the ph rary

was rom Fickts ha or greeted an the rape ehorce avd was referee!

ante umber the conctetiem thet his comnpuew com

os at a] trees

on hd cwn reoenty

snares knee where )«

=) Rest Copy Avetatte A-aT

SS SEC CN AP

: "

' ’

i '

;

\ 4

Reeur ex of whether the Edeuard+ per se mle ie

«ty ' bh, the clear tmert of o ‘ eh

. . rom that « clefemlant« eh: ¢ a. veel

"" ! fl ointerreerath me moeret ts 5 leven <}s

; : tort when the defemleant ha« retained

bv has expre-«el a deerre h with

, he oe — ‘ *

‘4 orale _

® «iemifieane rm that mrieetnk

! hit ’ | entities cope

+} 7 etal

frowns tl . om? Te Van I enrrover ate!

eit TX Bap Ae

Fs) e

areal . I P ‘

f {herve / / ’ °43.79))

+! T} (‘us it tease fF 08 ae ; cif ‘ nit r

boteeds craph examinaieons ote nr! b eigen ee

} lies Peel oe oA 1. ‘entifn a were Leela!

atow! eonernil: te! ' » af taeotl red

: . imiteg true 7 on wen te peetify pf

' nt ' rial -peres< u I Ntafes © Vesvaeder

St Yo 1646 tsth Cr, PT feet, Poe fen’ State

iv 7 8 wT), OH Cork te ot. de So

Pass feted States ¢ Shrew. 223 FM 1950, 105°

sfoe” 46 eer ay Ne fhe Moet | Le ee a ee

Pod Jers, F1T teed Cie, Tes Low te? States | oa <%s

VR) P00, 110 110th Cir cert. dean d 2 TS

‘ae, (TUTOR. The Minesenert state comrt+ refine te atlew gar

ho - fati ~ 9 bh. the cxperteseg af the Lew

Y «he I 1h rertex ed pfs oe pee tO gyters | Thee ears hy

oon te Poet # dtm coedeww res Foe te ont dine aeorent of the eaprets

ce tool te gedvereth tests Evhiee A Te eer in the Mew! Cert ond

U cers th. Li Deteetee, S68 TI

Aas

;

’

;

’

;

’

\.9

poivern Amunat results into t trial

if the part . a «? mintes?l te ¢ . f «och

San Mat j » SW oad te rh] \l 1

ee P ‘ , | . i,’ s \\ ’ ~¥ .

\f 1‘w 7 ’ Niet me { re ‘ sfa

tha?

om o ‘ rr ™

** ; - ‘ we ; ° rte «

; . ; "ranh - ‘ ~* ; ;

on ‘ ‘ ¥ ~

, . i cwet

A ' -_"

, r , ’ , . ,

wat Jd ’ . ;

See F P S ‘ »* 7 ‘

7 nal } e ath let

tare’ . ‘

~~ 7. r m galy el «tt? mn? nevrehn

lewte t] treet th device con have on the «« Tr ‘ <

Lykken, sxere. at 211 212. Tt maw <com fatile t maints

sileone mi ife [ner af the wx miner « «talent that ¢

machine cloakel with «i Ms «? weere f <«jentifie infa!l

tality. has <hown the acetic! tea he Ih ne. Forthermere.

the examiner i« net likely te he challenem! be the acensesd

when he imlientes that the mochime has «hewn ‘“*eome cle

ceit:"" the a ered, ane! frespie nily the court review me the

*As thie Court ated in f ated Stetes « Abeveeles 365 F 2: la’

163 (sth Ce 197%

{there is wo “le hetextne The revs @ anh can we mh oto We &

teeter.” nor dees the aperstee who internrets the graph detect “liea”

The machine recunds physical reanewnes which may or mow act he

Canmeccted! with an emotional reaction onc that reaction mow or een

met he reletee! te wreck ov trPwe eee +

queting, HR Ren Na 198 89h Come. to Swe 13 (1087) Ge Lek

hen, epee, ot STAD

none Oe

ene

A.10

' : »f aR yeus erat indu f aa sa ne

< ‘bk 2 a’ M e #1 ' . slew? *

: f ‘ m. ? ss

urs 2 re<«nail ' q tie?

ers post-test conf

met < fy moter .

’ . ent " th

> ar ! ‘ 5!

’ ; ‘ ‘

T <‘tom Fr " } ;

’ oct } '? tas

tel. F ra nt cid mat have

’ " +? ¢ 7 ‘ mel ¢ '

s?? re~ ,? . | sl I",

? ‘wyinming of the peels crayh examination, PFicld«

stated that he cid not want a lowver present aml «tene!

a written consent to the examination. Thi« fact ix not «nf

fiment te wet the government's baunlen te prove that

Piekl« know ogtv and intellicently waive! hia richt to have

eunel present at the post-test interrogation

The line we draw is not an artificial one In Arery

Dives, GSS PQ 406 (3th Cir. 1981), the Fifth Ctrewit held

that the defendant's waiver of hi« constitutional right to

remain silent aad have counsel present during a polveranh

examination did not extend to qnestions propounded br

the examiner after the defendant was ‘‘off"’ the polyeraph

machine The defendant, Gilbert Henrr, with Ii« connec!

prescat, had sgned written consent forme waiving hi«

constitntional safeguards for the duration of the polrgraph

examination and stipnlating to the admi«sihilite of an

statements of gwilt proenred by the examiner during the

"That wee Pee cace bere, the wandec ad Pach « her iph CU 4 of eee

‘ > - furr he reece! Nadewe the ind rie * _ pew al

A-30

~~ ee ree

A-ll

examination The examiner, administering the examination

without defendant's counsel that be bad “failed” and! asked!

did be “‘want to tell me ahoat the thinc’"* The court cor

claded that the inculpatory statements mare be the a

fewlant in response to that topmry were pol, wmler

totality of the crrenmeatances, treole aml ccruntaril: me!

an, therefore, she ne bare heen enppressed Id at RN

In refnsing to extend Henry's examination cansen’

te the post-test questioning, the Pitth Ciremt vot ol that

“Cnleither Henrr nor his connec! contemplated that ¢!

instruments ther sigma expereed Henry ft) onestrent

which «as not an intevral nart of o polegraph expzaine

tien.’ Pe. at 310, There i <imiloric ne ev nlence tat Fi. his

or his lawver anticipate! that th: CID affirer wenk’ a

tempt te cliett inerimimating etutement> Irom Pieki« af

the «xamination was ren. Fiells” lawyer stated’ at the «np

presen hearing that he and the defendant only wanted

a pels eranph te he run avel toat we le given 6 nit«."*

trial peutintion.""* Agent Bourne, the poly zraph exam

ner, dnl net attempt to «li<pel thie mistaken mpres-ton

before the examination began Bourne testifies! that he

did not inform Piebl« that if the machine inlientes! thot

his reeponses were deceitfal that Bourne wonk! continne

the questioning ‘‘to find the truth.” Nonetheless, Fir bls

**wa< anbjected to interrogation of afnl [finvesticativ «|

officer, ont of the presence of his counsel, amd withent

the benefit of meaningfully timed Miranda warnine-.”"

Pikds consented’ te the poh er po ct ota o becuse 4 was he

ond bis conmundieg officers Seape thot roe tel” pak cash cae

nation of Fields womkd encoursge the cuchowrites to drop the chars

sesinst Fickle so that he could eradmate amd transier out with the rest

of his Sante training claw

A-3!

Se re

A-l2

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

agains! self-inerimmation and bie night te Lave counse!

present durmg questioning."’ Jd. at 409."' As a result, the

officer ebtaine) highly incruminating admissible testimony

trom the cletemdant, instead of merely determining the

results of the polygraph examination—resalts which could

net have beeu mtrodaced at Fiekls’ trial. See State +

Bwidle, sapra, HIS W 2d at 191; State o. Wecindorf, supra,

ALS Wild at S21.

tiowause we hold that Fiekls’ consent to the pely graph

did not constitute a waiver of his mgt to have couuset

present at the post-test imterregation, ° we then mast m

‘In response te quedioning by the state + attorecy, Bourne te stitn cl

YY After the polygraph exameetion wos daw, dal pa tos

an) tecther cumverations with Gu man’

A. tes wr

YQ tae 5 ott adicute to fies tht he did mt huwe to mke aon

toethey sft anwts other than wat le hud aleeudy done om the

poe N rags ©. untamed ay’

A. Ne see, we comtumed te dius 2

~The Moecert Cort of Appeal. ty is opiwon affirming Fiekls

cookie. comment: comadoreal Piekls crew. io the polygraph to be

wet cot ovpiowe of bee cg al int Dee at consent to the post-test

meter bow. The court bolstered it coment finding by stating that Fieh!«

te trteevl Ghat fore the ted Seiten te was read hes rights oral “1 weer.

sie Tot te be thet f dice? howe te make am statements. de am thoing

either an counsel xorg preent.” The tranteript reweal, however, thot

Fields im fact stated that et the tine of has erre@, he understood tht he

chet et hee te mike cer statements befere he retatred counsel and bol

hea ew her present. Ae the Sapreme Cowt hus noted, “waiver requires

net meteh comprehension but reliquishment.” Brewsr co Willems 40)

C8 WNT $M PITT). Mies cle worming: uc esdelly imported to Fiekdls

at the Meme of bie arrest ne mince comditute concbetive evidence of a peat.

pe ceaph waiver than dees the fact that Feeble waived his rig’é to orn.

tection of creed cherieg the exomination

A-32.

A-13

beeyoentiv waived thi« right.'" The

quire whether he «n

gcereroment has eempl: iotradace! no evidence from «hich

ae can conclade that when Pickle was cont ronte! with the

wvroeatervy <tatement that the ‘‘he«etector”™’ <how.l |

was lying, he waived his right to the proteetion of cow

in this coercive <ituation

\fter Piekls “corfosseal’’ t: Agent Roarne, be «

reepresteene? be Polew Chol Coble am! CTD Offer Fars

This questioning was preeesbed by Miranda warnirce. Th

“arnings, however, comk!d baarediy bee eonesideres! ‘nme onin

fally timed." Piekle bal alreads tel Regrne hie vereben

of the events SS Sh, 154, a story thot we

feet ’ stent % ve_other ef roere. (oles ancl Pann «

fextimenr af (nal rewerhod the «chitance of Piekle* ‘eum

fessron’’ was eomnlative. Therefore, even if we were t+

or ww, wether the Mrwws Th thurs. Gew certs te the

Zant . rarer © ow, mis yori te Seite Stauton

Little Beer, 9S) Fold 401 See Cie 8979). Litthe Rear, arler arvesticn.

tem foe the eunsheeghter af hee bedbowd. agreed to take a poh erich

owermtinotion Refers the exaoninatee: becom, she comel a eritten coment

fromm Shee therein states! that di: was corse dig to an feferricte with

the PRL « et of which was te be the plegragh The examiner attached

the aprarstes te Littl Bear and asker! her if she had stabbed her hee.

comet shen che went to take the poberaph Accordingly, the Court

wat pet rovputred to determine whether the agents’ procedure had de-

prived Littl Bear of + previwtly actertel richt to deal with the author.

igpeer pore gh ag adhe eee yn ane

od ~- <

ee ee

A.lé

consider the helated warnings to he enfficient evidence that

Piekl voluntarile, knowingly and jatellicent! waived bis

right te have coansel present, the warnings—and the al.

lege ea er—eimplr came too late

We note that the troublesome circumstances of this

case coakl hove been easily a oidei. If the pelt gtaph «lil,

in fact, detect physiclozical re«ponses by Piehle that the

examiner associated with deceitfnl testimony, it would have

heen # simple matter for him to contact Piclds’ connec!

lwfore processing to interrogate the lefemlant. This nc.

hen, of course, was net constifytionalle commanded. Rot

it weak! have prevented the situation we are presente! with

lwre—a slefomlant. in the ahsenee of bic retarne:! conn et,

moving kev inewlpatory testimeme f. an investientive offi.

eer, witheont any indication in the record that he knowing!

nwt intethcently waived hie right te have his connse! pres.

ent

For the reasons act forth shove, we remand to the

tlistriet court with dircetion« te it to order the «tate to

cither relen<e the appellant or afford him a new trial The

istri#t court shall fix a reasonable time perio’! within

which the «tate must provide this relief.

ROSS, Cirenit Judge, Dissenting.

I am compelled to dissent from the majenty's con.

closion that the appellant's confession during the pest.

jolvgraph test interview was invaluntarily given heeanse

**Fiekls did net knowingly an! intelligently waive his right

ty have counsel present’ at that interrogation. Tt is well

estahbehel ‘that waivers of connsel must not only he

volunts -y, but constitute » knowing and intellizent relin.

qnishment or abanlonment of a known rizht or privilege,

# matter which depends in each case ‘upon the particular

forts and circumstances aml comlact of the neeused.’ Ed.

PS ee

, ta eae or Pe edi -_* | aes Ss ae Se

---

)

A-15

Joknaon vc. Zerbat, 34 US. 458 464 (1938) However,

accepting the basic facts presented in the majority enirion,

it seems clear that Field« must he viewed as having waived

his richts to have counsel present at the interrogation in

accordance with this standard

On September 25, 1974, when Fichls was arreste:! am!

charged with the rape he was given hie Miraeda warning

He admitted! in his «enppression hearing that he nnlerstonl

the meaning of these right« when he atates! that **T wneler-

stand it te be that T dieln’t bave te make an «tatement-,

rh preety eonentted? with beth orp ately reteine!? am! vilitar:

cornsel, and consent! te a pols cranh examination Pricer

te uadergeing the polygraph on December 4, 1974. Piette

ere acoin folle advierd of bie right«e Tle ane given a al

«iene! a written consent decument whieh ifornmed him

of bi« rochte amler the Uniform Cele of Militars JV est jew

uml the Bichth Amendment. In addition the agent rend

the «lefemdant the following detailed <tatement of his

**rieht«'

“Refore Lask von any qnestions, con mast anderstawl

cour rights, Pow da wat hare lo answer wa questions

or say enuthivg, Anathina gon say er do con be nard ax

coedeuce anaina wou ina criminal trial, You hare a

riatt te tall te a lawyer before questiontug or hare a

lower presewt with you during the questioomina, This

lawyer enn be a civilian lawyer of vour own choice, or

a military lawyer, letailed for you at no expense to

vou. Alse, vou may ask for a military lnwver of your

choice by name andl he will be detailed for vou if super-

iors determine he's rensonably availalle. If aon are

wow qewe ta discuse the offense ender investiaatins,

which i rape, with on witheet a lamer er: acut, men

hare a right te stop anoceciag questions at any time

or «peak to a lewger belore avercrimg further, erem

A-35

wee

ome sere

A-16

wom <tge 42 weaerer certeliweate Th. ven want a lawoer

-~ time" Defomlant anewerm! Oe

Slat ‘ } veda Ss S \ a | ot*, wo n 1 i\le ‘ft App Lyte)

(emphasis abled). It is umpertant te note that Pield« «ax

ehewt TD ~oal thot tye eorrthed stop aneWering «nestor af

aqua time of spe ktoa lawyer «oem if be ecomed the « r

strfarnt Atter Pieble bal wade bis confession 6 con

wIrse Wits. * wtim'? \g iH urn,

“a . his j a " itty « ‘ we Ff

} st t

Thus, it is cear that Fields was given fall warninc«

coneerming hes richts at least twice before he made hi« con

fessien to Avent Dourne. Parthermere, there ve abxolnteds

;

ne tielieainon teat Fields dil eet fully cetoprehend thee

righi~ a ’ ' jeter ef w statement ¢ ret he maa!

Te the contrary, Fret’ ahmiccion that he umlerstead what

his Meewm oe rech*~ meant, eweu if mare in ref: renee to pot

arrest warnings, strengi: saypqeert~ the comechasro: that

Fiekl« «till onderstood what these right« meant when he

was adtiee! of thom again prier te the polygraph, especial.

ly in light of the fact that Fickl<« had heen advise! bn conn

«el prter te taking the potegraph. There ix simply nething

in the «tated fact« which would cast dlonht ax ta Field«'

contre comprehension of hie right« at the tome he took

the esommmation Mereever, althongch the majority opine

petes that Piebl«’ waiver of Mirards richt« immediate:

after bis confession to Agent Rourne bat prior to bie re-

peaterl confession to the police are net timely ax to that first

eonte<scon, Fiell«” continuing waiver of those right« i« at

least indicative of bis continnedl comprehension and desire

fo waive those righta,

If continued waiver of counsel after namerous clear

warning i« not enfficient to show voluntary, knowing am!

intelligent eaiver, | am semewhat perplexed ax to what

—_—_—— —-—

>_< oe =a

A-le

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

frad the majority's opimon, only two things * ! hav

made the confers 7 | fary 1 thee presence ¢ H |

ecounse! at the pare h. or (2) giving Ft sle aunthor «et

of Miranda warnings after the jeargtep! ari | nt

oe Dart he f ove an* ’ rt r «yer? 4 \e t se? peeve?

in ifs on mr nf ‘the Pieckl«" connsel nf Pf.

are al } | . ‘ maticteat i]

Furthermor t iftieult ¢ eretand. in the ctremm

stances of thi« : ‘ ' my eitatr ]

warnitye. * } af e ntel 4

waiver ' , anne

' _ } ‘

Mor m f as t 7 tir '

the i sat taken daring whieh t vr

i net an arti! st and henertechnieal ore Th Ss? so ers

of the entire tran<action was interregation te « hieh FPicht«

clearly cone 7 u* imalicated] bys hie waiver \lr! sporty ff

rae! anne! Fiekl«

reenit« of pelveraph coukl mot hb

ander VMiesouri law, it ie aot clear that anv admi«<ier mae

by Fiekl< dnring the course of that examination would ale

he inalmi<siide. There ia anhetantial enprort for the mile

that the mere fac. at a confession was macle in anticine-

tien of, deriva, or following a pelycraph examination does

pot remler the confession involuntary and inadn. asible

See 89 \L.R.3d 230, 226 (1979), and cases cited thercin.

I do not believe that Heery vc. Dees, (8 F.2d 406 (5th

Cir. 1981) supports the requirement of additional Mirenda

warnings ofter the petecrar ‘s<coamination buat b+ fore

farther interrogation. As note! be that court. the qaestion

ia whether a waiver can he views! ax volnontary, knowing,

and intelligent in the total cireamstances of a ense. How-

ever, the factual circumstances in Dees are clearly distin-

quishable from those in the present case. It seems apparent

A-37

———— ee nee ee

A-18

npon reading the Dees opinion that the court's conclesion

that the confession obtained was involuntary rested ver

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

tally retarded. /¢. at 411. Moreover, anlike the waiver and

consent toa polygraph which was signed in the instant en«

where Fielis ev at any time daring the examination at p

t inesfioning and request counsel, the wnicer in Dees

pre Lroehe the presence of the defemlant’s coansel at tin

elygraph. /¢. at 408 Thi« factor wax alew critics the

¢ rts efermination that the mutual wa. er was net valid

when the examiner <bifted from the mdterar to a cener

oferrogalypor : doiat HT. PF naliv, it must he note!

that the le detector examination apon which the exami:

hase hie «tctoment that the defendant had failed the exam

« r completed. 7. at 410. The Fift!: Cirenit

clear! tr! the relevance of euch a hint of deeention hx

the pohee im obtaining a confession. J4. In the inetant enee

there 1 ne evidence of any mental anbnormality on the part

of Fiekl«: it os clear that Fields had a richt tn the presenee

of connec! doring all phases of the examination and knew

he did: and there is a0 evidence that the completed pols

graph etamination was used asa ruse to interrogate Ficki«

ontevle the presence of his coansel

in achtition to the fact that [ heliewe that rary 6. Devs

lees not snppert the majority's conclusion, I cannot agree

that the majoritr'’s opinion is not inconsistent with thix

court's decision in Cmited States v. Little Beer, $83 F.2d

411 (Sth Cir. 1978) (Lay, Bright and Ross). In Little Berar

the defendant was qnestioned by BIA agents concerning

her bushand's death the previows night. She was advised

of ber mgnts am! signed a waiver form. Two months later

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

tlecisded to give Little Bear a polygraph exemination. Prior

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

A-3%

A-19

Interviews! with Polygraph'' form which she signed She

was also advised br the agent of her constitutional rights

am! she signe! that form'« waiver provision. During the

polygraph examination Little Bear was asked if she «tabbed

ber hashend She responded! in the affirmative and sail «6

warited to telk about it. At this point she was not reminds!

of ber mht to an attorney of to remain silent. (pon fartl«+

interrogation, Littl Bear signe! a written confession. tm

appeal, Littl Bear contende!l that the confec<sion «howl!

hate heen soppreses] heeanse it eee not cobente nil ve

umler the cirenumetancee. This court held that Little Rear

hull velnutarily confess!

The factors apon whieh the majority dliatineniahe.

Little Rear are net convincing Firet, the fact that Litt!

Bear hart not retaine! eommeel ceome to he of litthe relew ane

to the instant ense, einer Piekl«, althewch retainine conse,

had net assertet his right to deal with the authorities

through counsel If anrthing, the absence of counsel in

Little Rear sontl seem to require a closer «rtine of the

volantorines« of the confession. Secomllv, there is nothing

te imlicate that thie court's holding in LIM + Bear won

remotely turner! on the fact that the polygraph form whic!

the defemlant signed micht he construc to consent te a

hrevder interview than jnet a polygraph. In fact. the court.

in arriving at the conelasion that Little Rear’s confes<ian

was voluntary, knowing, and intellhzent, relied! explicitls

on the reasoning of the Ninth Cirenit in Kriper vr. Copp.

TO F261 258 (9th Cir, 1975), whieh is factually very similar

to the instant case. In rejectiog Keiper’s haheas claim that

he shoul! have been given an additional Mirenda warning

after the polygraph, bat hefore interrogation resulting in

a confession the Ninth Cireuit stated Keiper “had heen

wdviewd many times of his right- prior to, am! at the three

of the polygraph test, there ix wo reason to beliewe (eat be

| A-37 (La ae

<_<

the ft: erwrart * PAStnre f Lott B

rt stated

’ . . * naral ~ A ' Ie 7 .

2 . e or fs ‘'. wer r

- r ‘ . tet ot eor . “ ry :

, ant fos (atom _ at ~

to tentiee * ma tarily Adchlitienal

‘ . 4 r ' miric? cone’

‘ T ie a r bh ram onl ewe! !

’ s cnived |} he ‘

; - .~ aa | pervs t . 1 ers Vy 7 =A

ren

ls , bitth BR ATF? ‘413 T rea '

tpressed in Acrper and atile H. Ayyrare to Le cenern

fel | Ser Prople « Barreta 24 Cal App 2m

h4 Cal Rote 211 (1967): State r Mewre. 252 Sa 642 Tn

ITT): Tormer vr State. 2390 XN WA TOR (Wis. 1977)

In <emmary Lettle Berar and the Aprarent weich? of

wank! seem ta snppert a holding that nuler the

of the cirenmstances, Piclde’ waiver and crn fesaien

is voluntary, knowing, and intelligent when he wax clon:

wivise! of hie right« on AAMerWs arcasions prior th hi.

ousi This «eeme especialiv tree im lich? of the face

‘* court fonnd a voluntary, knowing ancl intelicent

. er aml confession in Liftir Bear, = ease invols mz an

masorhisticatel, ancounseled, and emotionalls ‘listranght

Ivhan woman. Finally, 1 woold note that I can fim! nothing

in Ldwarder. Arizona, supra. a cnse clearly distingnishable

from the instant case on ite facts and the legul principles

mvelved, whieh dictates the resnit reached in the majority's

ommon in this case

4-140

AA!

— re ee me ree

-—-

A273

APPENDIX WD

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

EDWARD FIELDS

DONALD WYRICK, Warden,

R- pos lent

eee

ORDER

This matter ie hefore ti Ceort on the petitien of

Eviward Fickls for a writ of halen: corps \Viler con-

suleration of the Review aml Reeesumendation of the

Unite! States Magistrate and petitiemer’< exceptions

ther ,

IT IS HEREBY ORDERED that the Review and Ree.

ommendation of the Unite! Stutes Magi«trate he and i«

SUSTAINED and ADOPTED aml that the petition of

Edward Fields for a writ of habeas corpo< he and ix DIS.

MISSED without forther judicial proceeding.

Date! this 13th dav of February, 1981.

Felward L. Filippine

UNITED STATES DISTRICT JUDGE

4-H

A-25

APPENDIX oy E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

EDWARD FIELDS,

‘

Mo. 80-11130(3)

DONALD WYRICK, Warten,

He «pee? lewd

MAGISTRATES REVIEW AND RECOMMENDATION

Edward Fields bas filed a pet.iien for fecleral haben

corpus from the custady of Denakl Wrrick, at the Mise

souri State Penitentiary. Field< was convicted in Pulaski

County, Missouri on March 14, 175, of rape am! sentenced

to twenty-five years. Ilis conviction was affirmert at State

v. Fields, 534 S.W_o2d S48 (Mo. Ct. App. Spr. Dist, 1976)

Fields has raises! some «ix grounds charging constitn-

tional right clewial, «hich he claims entitles hum to feeral

habeas:

(1) He reevived ineffective assistance of counsel in

perfecting his 27.26 motion.

(2) The warrant causing his arrest lacked! probable

cause.

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

elading women and biack«.

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

fession.

A-43

ne eS a, ae

e7— a

wee en

A 26

(5) He was denied effeetive aeeistance of counsel on

app al

(6) Trial counse! was ineffrotive u failime te wivests

gate am! mtervie® one [kon Duther, a conlefendant

\t the onteet onsulering petits mers Ground New I,

ne de not feel that this preeent+ a con itutional question

Tit “4 LU mate States Code, 8 wives the chest reet urt

short: te preview a «tafe ceart convection, bat net col-

lateral proceedings, which are evil in nature am! bhevond

! ora of the Fifth Amendment. (asted States cs

f ’ I. pee al Stete of Til ' cee | I’ ‘ ahs (eth Curt

197 » etd sah. eben. Cart Winds. aus

pret (1976); Dew Pmited States, 428 Fudd TUS tSth tu

wo): Red + Caled States a od 444 o8th Cir, 4)

Concerning Fiekl’s contention that the warrant for

his arrest lacked probable can<- determunation, reepemlent

urges that this claim not he considered heeanse if lars not

heen previonsly presented to the state courts Re failing

to present this «ne te the state conrt, Fickis has failed te

exhaust his available state remedies, and the recorl 30

imdientes. Picard r. Cowwor, 404 US. 270 (1971). Further,

«we micht note that even if exhaustion was concede:|, a1a4-

rado. egal arrest does not void a subseqnent conviction.

(erstein v. Pugh. 420 US 106 (1975). Present detention or

arrest might be the proper subject for habens corpus chal-

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

arrest ground. /4.

Concerning Fields’ allegation in this third claim, that

he was denied «ine process and equal protection of the law

in that his jury systematically excluded women and Macks,

responlent again contends that this claim has not been

exhansted in the state courts. A review of the reoord

verifies respondent's contention. Further, we note that

Aay

A-7

challenges to the jury selection system must be made at

the first opportanitr or when such facte are shown. f'ren-

ete 0. Hewderenm, 425 US. SOR (1976): Weiner sok? r.

Fiehls’ allezations four and five challenge the as-

sistance of his counsel. Specifiealiv, Fiekls’ claims that

ina trial counsel failel] te challenge the ‘‘rneenstitutiona!

obtaming of the confe«sion”’ awd that trial counsel cul not

preperivy perfect hi< appeal, \« te the confeesion, Pielke’

sHle port of ary 1 wore that * trea! eourt errs! in aves

ruling bis motion tf <nppres<« sail annfes<ion The con

foeston in qne<tion @a< tales bh the C'rimmines! [ny est ratyeon

Division (CTD) of t Duited State< Army after defemlant

beste] beers Fh hes nie? evegeed 4° wrihew? eal ea towel bee

pre een?

This Cort has carefully comsivlere? the peunt~ raixevl

by petitioner in hie quest for federal habeae ane ciusting

case law reqnires that «ame he denie! llowever, it ie

somewhat cisturling to review the circtumstances tnder

which Fiekl«’ confession was obtained. He had heen ape

peinted connec! Apparently, the CID amd the defendant

agree upon a polygraph. They solicited and obtained the

necessary waivers to comply with Miraada ro iriscwaa, 84

VS. 456 (1966). When the pelyeraph showel! «ome irrem-

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

pursne! the interrogation. Fiekls’ attorner wae not in-

Vite! nor present for this continued interrogation. Tt «erm

a somewhat empty cesture to appoint an attorney for an

aceuse! with one hand. and then pursne interrecation of

the aceused without hi attorney under the enise of know-

ing waiver with the other.

Chief Justice Berger, when a cirenit jndee in Wothies

e. Cited Stotes, 374 F.2d N12 (D.C. 1967), imticated that

his feeling was that Miranda ¢. Avizone, -upre, wohl re-

Ads

—— —

‘

A-28

I quire the presence of counsel at all interviews once an

arcuse] wae repre sente|. However, this view hax not been

unanimously accepted

We agree «ith some reeervation that it i« lomeal that

an joterrognated defendant can waive prreence of connsel

i either hefore of after appointment. bat after appointment

| it woulkl seem that the barden of the proof of <anl waiver

| shenld be a heavy one. The awesome force and «trencth of

the CTD of the Arms, common knowleice. \ simph

vebber sorronnaded by thie array of military officers, who

| were <ohseynentle joined ly the state pelice im their inter

| regnation, i tn a diffientt position te knewmety and woln

tanty waive bee right te bare coansel present

Thee soldier was comvetedd of raping an cightr-one

‘ear obl woman, who could not mlentify him heeanse a

piilew case had heen places! over her head during the at-

tack. .\lan, «he was analle te iientifv hix hamd« which «he

dul see comme the attack. [ie confession, which concerie!

6 \eluntary imtereourse, was critical to his convietion. The

; weman claimed to have been raped four times and one

other soldier, Don Batler, admitted perticipation in the

} affair, The method nsed br the Army and the sheriff in

f obtaining Fields’ confession are borderline. Ther do find

|’ suppert in Meee and McConnell, -«pra. McConnell pre-

: renter! a confession obtained) after a flunked polygraph

; text, not unlike Fields. However, in Mef'nee!!, the ap-

: pointed attorney, althouch not prexent at the confession,

had given his telephonic approval of the polrgraph ex-

; amination.

’ It ix true that the court of appeals «lid make some

; uncemplimentary observations concerning the appeal brief ;

° they considered the point regardless, to ascertain if plain

lin error was committed. The Missonri Conrt of \ ppeals found

-—

———_———

OF + ee

A-29

that the defendant hal voluntarily, knowingly and in-

telligently waived hi« right to counsel prior te the taking

of the confession. State «. Fields, «xpra, at p. OO. The

court further foun! that the defendant har! been repertediy

and amply aivised of his rights ani that he volantariiy,

knowingly am! intellicentl: waived these rigits

“Tf an accusei can voluntarily, knowingly amd mite

licently waive lus nicht to counsel before one has been

appeinte:! (or emplovel), there <eene ge competing?

reason to hekl thet he mar net coluntarily, knowing!

awl intelligent! waive bi- right to have coumeect pre-

ent at ap interrecation after ewor<cl has been ap-

peinted (or emplowed) ~ Yo Welfh, ao Pod

5 (8th Cir, 19T4)5 Ntete 6. Met emeei?, 52 SW td

XS (Mo.App. 1r>)

Fiekls’ sixth daim i« another allegation conerrning

ineffective assistance of counsel in failing to call one

Don Batler, who was a codefemlant, ae a defense witness.

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

he was familiar with Fields’ eovlefendant, Don Butler, Ie

further testified! that Butler wa« represented he another

attorner, who wonk! net allow kim to testify in any «tage

of the proceedings that Fields was involved in (Respond-

ent’s Exhibit G-P®9). In view of hi« obvions effort to fol-

low the directions of Ficlds in using Butler as a defense

witness, his trial attorney could hardly he called ineffee-

tive.

**In this cirenit, the evaluation of a petition al-

leging ineffective assistance of counsel involves a

*Fidds ¢ Stete, 372 SW2d 477 SO Mo. 1978), is a bondemork

case which decided that in all 27.26 metions, there shall he appetite!

counwl. Fickls had’ appealed his prior 27.26 motion ruling because of

his statement that he “didn't know or understand what could he raited on

a 27.26 motion.”

° of oa

(Sth Cir, 1977). The petitioner mast first show that

his attorney failel to exercise the ewetemary skill

aml cilicenee that «a reasonable competent atterner

woul] exereiee under similar ciremnstances, Urited

Stetes + Easter, 3 Poll @ G6 (Sth Cir, 1976),

eet dean d, 404 US. $446 C1077). Seeoml, the petitioner

must demonstrate that he was materials prejredioed

in the elefemse of hie case be the actions or inaetions

of his counsel, Necets 6 Dercatt, 506 Pod 344 Sth Cr

1TO). Merce e Peceatt S74 F fd 40 o8th Cir, 1978);

Riucheart ’ Live we _ wa pee

Therefore, tt t« the eomelasion amd remo telhation

of the reviewing Magistrate that Edword Piekls’ apphea-

flew for feleral habeas corps be shenped) ecitheat farther

prececlings

The parties are hereby advised that trey have ten

days from the serview of this recommendation within whieh

to file objections to same, parsuant te JS ENC. 9656(¢b).

William S. Dabe

UNITED STATES MAGISTRATE

€

Dated: December 16, 1080

~~—<_ ee ee eee

—— a. oe

;

‘

A3l

APPENDIX D F

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEV’TEMBER TERM, 1981

No. 81.1245

EDWARD FIELDS, A Appeal from he

Appr law i nites! state o Dis.

ve f treet Court for the

DONALD WYRICK, | Kastern [istrict of

Mieseur

Appeller

The Court, having considere:| Appellee’s petith for

rehearing and sugcestions for rehearing en banc am! being

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

en hane

tition for rehearing and suggestions for rehearing

denied. Judges Rvs, Henley and John (ilbeon voted to

grant the petition for rehearing en bane.

May 28, 1982

‘re

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