Petition for a Writ of Certiorari — Swenson v. Stidham

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SUPREME COURT OF THE UNITED STATES

No. Z1-2 2 ‘i

HAROLD R. SWENSON, Warden,

Missouri State Penitentiary, &

Petitioner, ge

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Vs. F >

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ae

JAMES WILLIAM STIDHAM, a

Respondent. ay”

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCU!T

JoHN C. DANFORTH

Attorney General of Missouri

KENNETH M. ROMINES

Assistant Attorney General

Supreme Court Building

Jefferson City, Missouri 65101

Attorneys for Petitioner

E. L. Menpanaary, Inc., 924 Cherry Street. Kansas City, Mo. #4108, 421-2020

INDEX

Opinions Below . .. .............---.-csss-ssesssessessesesseseeeeneeeneenseeeenees 2

Jurisdictional Statement 0.2... eect eeeee eee ceeee eee 2

at i t))! a ere ae ae 3

Statutory Provisions Involved .............2......eeeeececeeeeeeeee + 3

| eee 7

Argument—

The Eighth Circuit Court Below, Sitting in Habeas,

Incorrectly Applied Sims v. Georgia, 385 U.S. 538,

by Holding That the Finding by the Circuit Court

of Butler County, Missouri, That a Confession Was

Not Involuntary As a Matter of Law Did Not Com-

ply with Jackson v. Denno, 378 U.S. 368 ................ 20

Appendix A—Opinion of the Supreme Court of Mis-

NETL, osc saeed eres ea nenctostsnuennony sna eangpaabeastneaaasteesseeccesseivaeasess Al

Appendix B—Opinion of the Supreme Court of Mis-

OE a sascessvitcneeainsnnssmsncirenen tr ivehtawneomensnedtceixecen sp seueenteeessreentadeas A25

Appendix C—Opinion of the Supreme Court of Mis-

MONT ccna saere see poco ea cee pe een Sees tesee veeewenericte se glecee-t eee saecntiendas A29

Appendix D—Opinion and Order of the United States

District Court for the Western District of Missouri .... A50

Appendix E—Opinion and Order of the United States

Court of Appeals for the Eighth Circuif 0000020000... A62

Appendix F—Order Denying Petition for Rehearing

En Banc Before the Eighth Circuit by an Equally

Divided COUrt -.<.cccceceeccsscenscncsipetnisnensetsnsnsncatenssidecocecnieasteanes A74

Appendix G—Opinion and Order of the United States

District Court for the Western District of Missouri .... A75

Appendix H—Order of Eighth Circuit Dismissing Ap-

OI recs cas sects eect penta aetna eds eee A80

Appendix I—Order of Eighth Circuit Denying Rein-

Statement of Appeal oo... eee cece eee eeeeee eens A8l

II . INDEX

TABLE OF CASES

Ashcraft v. Tennessee, 322 U.S. 143 ........-.--.1e-ceeeeeeeeeeeeenes 3

Jackson v. Denno, 378 U.S. 368 —................ 3, 20, 21, 24, 25, 26

Lyons v. State of Oklahoma, 322 U.S. 596 ~......0202000..... 23

Salinger v. Loisel, 265 U.S. 224 ................2..2ececeeeteeeteeeeeeeee 28

Sigler v. Parker, 396 U.S. 482 ................0..eeeeeeeeees 2, 10, 20

bis WV. GeOTGed, SBD U5. DOG onsite csc eveceigctenssieinnscs 3, 20, 27

Smith v. Yeager, 393 U.S. 122 20.......cceeceeeeeeeeceee eects 28

State v. Ellis, 193 S.W.2d 31 -........2...2..2:c2:ceceteeseeeee sete teeeees 23

State v. Ellis, 193 S.W.2d 37 ....0..2........::eecseeseeeeeeeeeeteeeeeee 93

State v. Gibilterra, 116 S.W.2d 88 -.00..0....20..0eeeeeeeeeeeees 23

State v. Sanford, 193 S.W.2d 37 ...........220.2:2:eeceeseteeeees 23. 24

State v. Stidham, 305 S.W.2d 7 ooo...... ee ccceecceececeeeetteeceeees 2.8

State v. Stidham, 403 S.W.2d 616 -..............2:2ece ieee 8

State v. Stidham, 415 S.W.2d 297 .00..0...2...:2ccecceee eee 2.9

State v. Stidham, 449 S.W.2d 634 .........0.0..0ececeeeeecee 2,9

State v, Washington, 399 S.W.2d 109 ...........0ececece. 2!

Stidham v. Swenson, ........ F.Supp. ........ , No. 18121-2 .... 2.9

Stidham v. Swenson, ........ F.Supp. ........ , No. 20685 ........ 2

STATUTORY CITATIONS

Title 28, U.S.C.A., Section 1254 20.00... eee eee

Title 28, U.S.C.A., Section 1291 ........0..... eee 3

Title 28, U.S:C.A,,, SECON ZIOV acco sacsces csc cesscenncestscentcnsenen 2

Title 28, U5. Ais, SOCOM. 2298 osc cce crepes veersertonensnins 3

Tithe 26, U.S.C Ax, SCCUOW 209 axe tee ye

IN THE

SUPREME COURT OF THE UNITED STATES

se eresoenteeeee TERM, 1971

HAROLD R. SWENSON, Warden,

Missouri State Penitentiary,

Petitioner,

VS.

JAMES WILLIAM STIDHAM,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Comes now the petitioner, Harold R. Swenson, Mis-

souri State Penitentiary for Men at Jefferson, City, Mis-

souri, and through his Attorney of Record, seeks a Petition

for Writ of Certiorari to the United States Court of Ap-

peals for the Eighth Circuit and would state and allege in

the following particulars, to-wit:

ne

Ne TOPO EO ODD OF OEE ES

a AA

2

OPINIONS BELOW

The Opinions of the Supreme Court of Missouri are

cited as State v. Stidham, (MoSup. 1957) 305 S.W.2q 7.

State v. Stidham, (Mo.Sup. 1967) 415 S.W.2d 297; and Star,

v. Stidham, (Mo.Sup. 1970) 449 S.W.2d 634, and are ap-

pended hereto as Appendixes A through C. That the

Opinion of the United States District Court for the Western

District of Missouri, not yet reported, is cited as Stidham

v. Swenson, ........ F.Supp. ........ , No. 18121-2, and is appendaj

hereto as Appendix D. That the Opinion of the Unite

States Court of Appeals for the Eighth Circuit, not yet re.

ported, is cited as Stidham v. Swenson, ........ F.Supp. ......

No. 20685, and is appended hereto as Appendix E. A Mo

tion for Rehearing or Transfer to the Eighth Circuit Cour

En Banc, which was denied by an equally divided Court on

June 11, 1971, is appended hereto as Appendix F.

JURISDICTIONAL STATEMENT

That the petitioner filed a Petition for Writ of Habeas

Corpus pursuant to Title 28, Section 2254, U.S.C.A., in the

United States District Court for the Western District of

Missouri, Western Division. That from the denial of the

granting of the writ by that court, the respondent appealed

to the United States Court of Appeals for the Eighth Cir-

cuit, which by its opinion filed on May 24, 1971, remanded

the cause to the District Court for further proceedings con-

sistent with the remedy provided for in Sigler v. Parker,

396 U.S. 482 (1970).

Jurisdiction is conferred upon: this Court by the pro-

visions of Section 1254, Title 28, U.S.C.A., in that this pe

tition is sought within ninety (90) days from the filing of

the opinion below and is, therefore, timely under the pro-

visions of Section 2101, Title 28, U.S.C.A.

3

QUESTIONS PRESENTED

Did the Eighth Circuit Court of Appeals, sitting in

habeas, correctly apply Sims v. Georgia, 385 U.S. 538, by

holding that a finding that a confession was “. . . [N Jot in-

voluntary as a matter of law . . .” did not comply with

Jackson v. Denno, 378 U.S. 368?

Did the Eighth Circuit Court, sitting in habeas, cor-

rectly interpret Missouri procedure when it held that the

Missouri procedure of 1955 as to the introduction of con-

fessions in evidence before a jury did not comply with

Jackson v. Denno, 378 U.S. 368?

Did the Eighth Circuit Court of Appeals, sitting in

habeas, abuse its discretion by allowing a second appeal,

on identical issues, from the denial of a petition for habeas

corpus, after the petitioner had once voluntarily dismissed

his appeal?

STATUTORY PROVISIONS INVOLVED

Title 28, U.S.C.A., Section 1291, provides:

“The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district courts of

the United States, the United StatesDistrict Court for

the District of the Canal Zone, the District Court of

Guam, and the District Court of the Virgin Islands,

except where a direct review may be had in the Su-

preme Court... .”

Title 28, U.S.C.A., Section 2253, provides:

“In a habeas corpus proceeding before a circuit

or district judge, the final order shall be subject to

review, on appeal, by the court of appeals for the cir-

cuit where the proceeding is had.

“There shall be no right of appeal from such an

order in a proceeding to test the validity of a warrant

4

to remove, to another district or place for commitmen

or trial, a person charged with a criminal offense

against the United States, or to test the validity of his

detention pending removal proceedings.

“An appeal may not be taken to the court of ap

peals from the final order in a habeas corpus pro.

ceeding where the detention complained of arises oy;

of process issued by a State court, unless the justice

or judge who rendered the order or a circuit justice

or judge issues a certificate of probable cause.”

Title 28, U.S.C.A., Section 2254, provides:

“‘(a) The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of ;

person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in vio-

lation of the Constitution or laws or treaties of the

United States.

‘““(b) An application for a writ of habeas corpus

in behalf of a person in custody pursuant to the judg-

ment of a State court shall not be granted unless it

appears that the applicant has exhausted the remedies

available in the courts of the State, or that there is

either an absence of available State corrective process

or the existence of circumstances rendering such proc-

ess ineffective to protect the rights of the prisoner.

“(c) An applicant shall not be deemed to have

exhausted the remedies available in the courts of the

State, within the meaning of this section, if he has

the right under the law of the State to raise, by any

available procedure, the question presented.

“(d) In any proceeding instituted in a Federal

court by an application for a writ of habeas corpus by

a person in custody pursuant to the judgment of a

State court, a determination after a hearing on the

merits of a factual issue, made by a State court of

5

competent jurisdiction in a proceeding to which the

applicant for the writ and the State or an officer or

agent thereof were parties, evidenced by a written

finding, written opinion, or other reliable and adequate

written indicia, shall be presumed to be correct, unless

the applicant shall establish or it shall otherwise ap-

pear, or the respondent shall admit—

“(1) that the merits of the factual dispute were

not resolved in the State court hearing;

“(2) that the factfinding procedure employed

by the State court was not adequate to afford a full

and fair hearing;

“(3) that the material facts were not ade-

quately developed at the State court hearing;

“(4) that the State court lacked jurisdiction of

the subject matter or over the person of the ap-

plicant in the State court proceeding;

“(§) that the applicant was an indigent and the

State court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the

State court proceeding;

“(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court pro-

ceeding; or

“(7) that the applicant was otherwise denied

due process of law in the State court proceeding;

“(8) or unless that part of the record of the

State court proceeding in which the determination

of such factual issue was made, pertinent to a de-

termination of the sufficiency of the evidence to

support such factual determination, is produced as

provided for hereinafter, and the Federal court on

a consideration of such part of the record as a whole

concludes that such factual determination is not

fairly supported by the record:

6

And in an evidentiary hearing in the proceeding in

the Federal court, when due proof of such factya|

determination has been made, unless the existence of

one or more of the circumstances respectively set forth

in paragraphs numbered (1) to (7), inclusive, is shown

by the applicant, otherwise appears, or is admitted b;

the respondent, or unless the court concludes pursuant

to the provisions of paragraph numbered (8) that the

record in the State court proceeding, considered as ;

whole, does not fairly support such factual deter.

mination, the burden shall rest upon the applicant to

establish by convincing evidence that the factuaj

determination by the State court was erroneous.

“(e) If the applicant challenges the sufficiency

of the evidence adduced in such State court proceeding

to support the State court’s determination of a factua!

issue made therein, the applicant, if able, shal pro.

duce that part of the record pertinent to a determina.

tion of the sufficiency of the evidence to support such

determination. If the applicant, because of indigenc:

or other reason is unable to produce such part of the

record, then the State shall produce such part of the

record and the Federal court shall direct the State to

do so by order directed to an appropriate State of.

ficial. If the State cannot provide such pertinent

part of the record, then the court shall determine un-

der the existing facts and circumstances what weight

shall be given to the State court’s factual determina-

tion.

“(f) A copy of the official records of the State

court, duly certified by the clerk of such court to be

a true and correct copy of a finding, judicial opinion.

or other reliable written indicia showing such a factual

determination by the State court shall be admissible

in the Federal court proceeding.”

7

- STATEMENT

Respondent is presently confined at the Missouri State

Penitentiary at Jefferson City, Missouri, serving a life

sentence for First Degree Murder. The procedural his-

tory of this case is as follows: On November 23, 1954, an

indictment was returned by the Grand Jury and filed in

the Circuit Court of Cole County charging defendant and

six other penitentiary inmates with the First Degree mur-

der of Walter Lee Donnell, another inmate at that in-

stitution, on or about September 22, 1954, during a riot at

the Missouri State Penitentiary (Tr. 5, Cause No. 45537).

On that same date, all of those accused including defend-

ant were arraigned before the Court and counsel was ap-

pointed to represent each of them individually. On De-

cember 6, 1954, all of the accused entered pleas of not guilty

(Tr. 7, 10-11, Cause No. 45537).

On December 14, 1954, defendant filed a Motion for

Production and Inspection, a Motion to Dismiss, a Motion

for a Severance, a Motion for a Polygraph Examination

and a Motion to Suppress (Tr. 12-18, Cause No. 45537).

On December 20, 1954, the Court sustained the Motion for

a Severance (Tr. 18, Cause No. 45537), and denied the Mo-

tion to Dismiss (Tr. 19, Cause No. 45537) and the Motion

to Suppress (Tr. 20, Cause No. 45537). On December 23,

1954, the Court denied the Motion for a Polygraph Exam-

ination and on January 3, 1955, the State confessed the

Motion for Production and Inspection (Tr. 22, 24, Cause

No. 45537). On February 15, 1955, defendant filed an ap-

plication for change of venue and an affidavit in support

thereof based upon the alleged bias and prejudice of Cole

County citizens against him, and also filed an affidavit

for disqualification of Judge Sam C. Blair based on alleged

interest and prejudice (Tr. 27-44, Cause No. 45537). On

February 16, 1955, Judge Blair sustained the application

Pape.

8

for his disqualification and so notified the Supreme Cour

of Missouri (Tr. 45, Cause No. 45537). On February 22,

1955, on order of the Supreme Court of Missouri Judge

George P. Adams was transferred to hear appellant’s case

and on February 25, 1955, Judge Adams sustained de.

fendant’s application for change of venue and transferred

this cause to the Circuit Court of Butler County, Missouri

(Tr. 45-49, Cause No. 45537).

On April 25, 1955, defendant waived formal arraign.

ment, pleaded not guilty and the cause proceeded to tria|

before a jury. Upon learning that the jury had read 2

newspaper account of the trial, the Court granted defend-

ant’s request for a mistrial and the cause was reset for July

18, 1955 (Tr. 55-64, Cause No. 45537). On July 18, 1955,

the trial commenced and continued until July 20, 1955,

when the jury returned a verdict finding defendant guilty

of murder in the first degree and assessing his punishment

at life imprisonment (Tr. 757-760, Cause No. 45537).

The cause was appealed on the Transcript and the con-

viction was affirmed by the Supreme Court of Missouri on

September 9, 1957, State v. Stidham, (Mo.Sup.) 305 S.W.

2d 7. On March 9, 1958, pursuant to Missouri Supreme

Court Rule 27.26, V.A.M.R., the respondent filed pro se in

the Circuit Court of Butler County a Motion to Vacate

and set aside his sentence. The Motion to Vacate was

denied without an evidentiary hearing and on appeal the

Supreme Court of Missouri affirmed the order and judg-

ment. State v. Stidham, (Mo.Sup.) 403 S.W.2d 616.

Thereafter, respondent filed a pro se Motion to Va-

cate and Set Aside his sentence pursuant to Supreme Court

Rule 27.26, V.A.M.R., which presented claims allegedly

not presented in the first motion. The trial court without

an evidentiary hearing also denied the second motion to

vacate and on appeal, the Supreme Court of Missouri re-

9

versed the order and judgment and remanded the cause

for further proceedings in compliance with the amended

provisions of Rule 27.26. State v. Stidham, (Mo.Sup.) 415

S.W.2d 297. Appellant filed a change of venue, and filed

his motion in the Circuit Court for the City of St. Louis,

and an evidentiary hearing was had December 5, 1968.

At the evidentiary hearing the original transcript and

astipulation of facts were offered and received in evidence

and appellant and the State introduced other evidence per-

taining to the issues made by the pleadings. On April 14,

1969, appellant’s motion to set aside judgment and sen-

tence was overruled (Tr. 130, Cause No. 54674). A con-

solidated appeal, both reinstated direct appeal and appeal

from respondent’s 27.26 hearing, was made to the Supreme

Court of Missouri and that Court affirmed the decision of

the lower court. State v. Stidham, (Mo.Sup.) 449 S.W.2d

634.

On February 18, 1970, respondent filed Petition for

habeas corpus in the United States District Court for the

Western District of Missouri, Western Division which was

denied by that Court by order entered on May 15, 1970.

(Stidham v. Swenson, ........ F.Supp. ........ , No. 18121-2],.

From this denial respondent filed a Notice of Appeal and

a request for Certificate of Probable Cause which was

granted. On June 25, 1970, the United States Court of

Appeals for the Eighth Circuit granted respondent’s Mo-

tion to Dismiss his appeal and on October 14, 1970, denied

respondent’s Motion to Reinstate his appeal on the Eighth

Circuit docket. On September 25, 1970, appellant filed a.

second petition for habeas corpus in the United States Dis-

trict Court for the Western District of Missouri which by

‘ference he stated identical grounds as his prior petition.

The United States District Court for the Western District

of Missouri likewise denied this petition for writ of habeas

10

corpus, and an appeal was taken to the United States Cour;

of Appeal for the Eighth Circuit. That Court, on the 24)

day of May, 1971, reversed and remanded to the Distric;

Court for further proceedings provided for in Sigler y,

Parker, 396 U.S. 482 (1970), requiring a further evidep.

tiary hearing before the Missouri courts.

The historical factual evidence presented before the

Missouri Circuit Court in 1955 was as follows: Sgt. E, y.

Nash of the Missouri Highway Patrol was the State’s first

witness and set the physical scene by identifying Exhibit

1 as a drawing he made showing the physical makeup of

B-Basement of the Missouri State Penitentiary on Sep.

tember 22 and 23, 1954 and in describing that building and

the contents thereof (Tr. 57-64), this witness also identi-

fied Exhibits 2, 3, and 7 as photographs showing gates,

passageways and cells in and around the maximum pun.

ishment area of that institution.

Lt. W. S. Barton of the Missouri State Highway Patrol

testified that at 10:00 p.m. on September 22, 1954, he ar-

rived at the Missouri State Penitentiary and went to B-

Basement, where he found the severe utilated body of

a man in Cell-18 of the maximum punishment area (Tr.

91-92). Lt. Barton identified Exhibit 8 as a photograph

of a man whose body he found and it was introduced

into evidence (Tr. 93-94). Lt. Barton further identified

Exhibit 9, a sixteen pound sledge hammer, as the instru-

ment he found beside the body on the night in question

and further identified Exhibit 10 as a photograph of Cell-

18 of the maximum punishment area (Tr. 95-98). This

witness testified that when he found the sledge hammer

it was bloody, and that all three (3) doors leading into the

maximum punishment area of the Missouri State Peni-

tentiary were standing open with water on the floor and

debris scattered about (Tr. 108).

7 “

11

Sgt. James Rhodes, a Laboratory Chemist for the Mis-

souri State Highway Patrol, testified that he analyzed

stains on Exhibit 9, the sledge hammer, and that they were

human blood (Tr. 128-130).

J. G. Lamar, Superintendent of Records at the Mis-

souri State’ Penitentiary, testified that he had control and

supervision of all records at that institution and that by

law those records had to contain a photograph of and

fingerprints of all inmates. He identified Exhibit 8 as a

photograph of Walter Lee Donnell, an inmate at the Mis-

souri State Penitentiary, and stated that on September 22,

1954, he viewed Donnell’s dead body (Tr. 135-136), and

further testified that he viewed that dead body while Dr.

Shull performed an autopsy on it (Tr. 142-144).

James Enyard, an employee of Dulle Funeral Home

in Jefferson City, Missouri, testified that on September 24,

1954, he saw the dead body of the person shown in Ex-

hibit 8, the photograph of Donnell, and that he removed

the body to the funeral home and embalmed it (Tr. 152-

155). On the back of that body Mr. Enyard noted on the

left side and in the rib section four (4) or five (5) wounds

and also found five (5) round wounds on the left chest

over the heart (Tr. 155-156). In his opinion the back

wounds were made with a knife and front wounds with

around instrument (Tr. 157).

Dr. G. D. Shull testified that in Nashville, Tennessee,

on September 25, 1954, he performed an autopsy on the

body of Walter Lee Donnell, and this witness described

numerous fractures, punctures, and wounds, and said that

it was his medical opinion that the skull fracture was a

mortal wound (Tr. 163-168). This witness testified that

two (2) of the five (5) chest stab wounds went clear

through the heart, while two (2) of the back wounds had

12

penetrated the heart. The chest wounds were morta]

while the latter in all probability would be so considereg

(Tr. 169-170). Dr. Shull further testified that it was his

opinion that the back wounds were caused by a thin blade.

like that of a pocket knife, but did not penetrate as deep

as the front wounds, which were caused by an instrument

at least four (4) to five (5) inches long (Tr. 171-172),

This witness testified that there were no gunshot wounds

in the body (Tr. 172). The doctor testified that he thought

the blunt end of Exhibit 9, the sledge hammer, could have

caused the injury to the skull of Donnell (Tr. 174).

Clarence Dietzel, a member of the guard force at the

Missouri State Penitentiary was on duty at the Missourj

State Penitentiary on the night of the riot, and testified

that he was on duty in B-Basement and that on that night

there were nine (9) inmates in the maximum punishment

_ area, including defendant Stidham (Tr. 187-188). A dis.

turbance started in the prison around 6:30 p.m. that night

and a group of rioters thereafter tried to break into B-

Basement (Tr. 189). In that group this witness recognized

Donald DeLapp, Paul Kenton, Jackie Lee Noble, William

Hoover, and Joseph M. Vidauri, and he further heard De

Lapp yell to Stidham and tell Stidham that they were

coming to get him out and also heard Stidham yell back

for them to hurry (Tr. 190-192). Mr. Dietzel testified

that the group outside of B-Basement were using a sledge

hammer similar to Exhibit 9 (Tr. 203), and an iron bar

beating on the doors attempting to gain entrance to B-

Basement. DeLapp demanded witness Dietzel’s keys,

which demand was refused (Tr. 198-199), but eventually

the group of inmates broke in Gate No. 2 where the wit-

ness was and then they searched him and again demanded

the keys to Gate No. 3, which demand was also refused

(Tr. 204-205). The group thereafter got through Gate No.

3 and into Death Row, and Noble and others in the group

13

locked witness Dietzel in a cell in the maximum punish-

ment area for approximately twenty (20) or twenty-five

(25) minutes and then took him out of that area and there-

after he did not witness any of the events of the killing

(Tr. 207-210).

The State then called James Creighton, an inmate, and

defendant objected to his testimony, the basis being that

the witness was claimed to be of unsound mind and de-

fendant requested a hearing to determine his competency

which was granted (Tr. 241). At this inquiry, held outside

of the hearing of the jury, Mrs. Alma Miller, a medical

records clerk at State Hospital No. 1, in Fulton, Missouri,

testified that she was the custodian of the records of the

patients in that hospital (Tr. 242). In conference it de-

veloped that only three (3) pages of the record, marked

for identification as Exhibits C, C-1, and D were involved

(Tr. 246-249), and the witness stated that she did not know

who prepared those pages, did not see them prepared, did

not know when they were prepared, except that an inmate

of the Fulton Hospital typed them, and could not say that

they were correct (Tr. 250-252, 256-258). For the pur-

poses of the voir dire hearing only the Court admitted Ex-

hibits C, C-1, D, 14 and 15 into evidence and they were in-

corporated into the Transcript (Tr. 260-267).

Still outside the hearing of the jury, James Creighton

took the witness stand and testified in detail concerning

his status as an inmate of the Missouri State Penitentiary,

his convictions and the legal proceedings thereon, and his

being in a cell in the maximum punishment area on the

night in question (Tr. 267-270). He admitted being in

Fulton State Hospital No. 1, Fulton, Missouri for thirty-

five (35) days, admitted a cutting while in the Peniten-

tiary, admitted that he had feigned an attempted suicide to

get out of solitary at the prison and transferred to Fulton,

oe eee <a ake

14

but denied being in any other mental institution, denied

being taken before a Probate Court or being committed

as an insane person (Tr. 270-273). At the close of this

hearing, defendant’s request to have witness Creighton

declared incompetent was refused.

Before the jury witness Creighton testified that he

was serving a life sentence in the Missouri State Penitep.

tiary and on the night of September 22, 1954, was in Cel]

17 in the maximum punishment area, next to Walter Lee

Donnell in Cell 18 (Tr. 278-279). In June, 1954, defendant

began celling in the maximum punishment area and from

then until the night of the riot defendant cursed, ridiculed

and threatened Donnell over and over and told Donnell

that he would kill him if he could get at him (Tr. 280-285),

On the night of the riot DeLapp and defendant Stidham

hollered back and forth to each other, DeLapp saying that

he was going to get defendant out of his cell and defendant

begging DeLapp to hurry, during which time defendant

was continuing to threaten to kill the witness and Donnell

(Tr. 288-290). Defendant Stidham told Donnell that Don-

nell was to be killed because he had testified against

“Thompson and them in St. Louis before the grand jury”

(Tr. 291). Later defendant Stidham got out of his cell

and together with Hoover, DeLapp, Kenton, Noble, Laster

and Vidauri tried to get into the witness’s cell, after clear-

ing the other inmates out of the maximum punishment area

(Tr. 292-293). This group had a key for the lock to wit-

ness’s ce!] and were using a pole to keep witness back

from the front door of the cell and a sledge hammer like

Exhibit 9 did not pound the screens such as is shown

Exhibit 10, the photograph of the cell. During all of thi

the witness received a broken jaw but by jamming the

lock to the cell with concrete, a comb and “junk” he kept

them from getting in (Tr. 294-296). He heard defendant

15

Stidham tell Donnell they would get him next (Tr. 297) and

then the group moved to Donnell’s cell where the sledge

was again used (Tr. 295).

From his cell witness could not see a person enter

Donnell’s cell but he could see a man go right up to the

cell, all seven (7) of the men, including defendant Stid-

ham, headed for Donnell’s cell and went out of witness’s

sight, whereupon witness heard Donnell begging, hollering

and pleading for his life, witness then heard a gurgling

sound and saw the seven (7) men run out of the cell but

thereafter he did not see any of them during that night

(Tr. 297-299).

Herman Trout, an inmate of the Missouri State Peni-

tentiary and a plumber of that institution, testified that

on the night in question he went into his shop in B-Base-

ment after the riot started (Tr. 335-337) and hid his tools

from the riotors and watched while DeLapp, Hoover and

Kenton tried to force open a door and heard DeLapp talk

with defendant Stidham about getting Stidham out of his

cell (Tr. 338-340). At DeLapp’s direction a fire was started

and later Vidauri and Noble joined them and knives were

produced (Tr. 341-342). Witness Trout testified that the

group eventually got the three (3) doors leading into the

maximum punishment area open and defendant Stidham

and Laster were let out of their cells, whereupon witness

saw DeLapp put his arm around defendant and say ‘‘Gen-

tlemen, I have brought you this far, this is your leader

from here on.” (Tr. 344-346). Defendant Stidham and

others then got weapons, took Guard Dietzel out of that

area and after getting the other inmates cleared out, went

down into the cage of cells in the maximum punishment

area proper (Tr. 347-351). Witness Trout heard hollering

and yelling, and after the hollering stopped defendant

Stidham and others emerged from death row and washed

a oa OE eT ee

16

their hands in a wash basin and discarded some of their

clothing (Tr. 352). From his position witness could see

the actions of the seven (7) men until they got into the

maximum punishment area proper, and during the time

the seven (7) were in there he heard a man screaming and

yelling in a shrill voice stating that he was not a snitch

(Tr. 353-354). While the seven (7) were getting into the

maximum punishment area and while they were there, in-

cluding the time that they washed and left the area, wit-

ness was in the dark in a position where the group could

not see him (Tr. 384, 388). Witness testified that he did

not see who murdered Walter Lee Donnell (Tr. 389).

Sgt. Percy Little, a State Highway Patrolman, testi-

fied that on September 27, 1954, he and another Patrol-

man and four (4) City of St. Louis policemen questioned

defendant in the Athletic Building of the State Peniten-

tiary, and defendant at that time wrote out a statement,

identified as Exhibits 16 and 16-1, and then signed it (Tr.

394-396). At this stage the Court granted defendant’s re-

quest for a preliminary hearing inquiring into the volun-

tariness of the oral and written statements made by de-

fendant (Tr. 398). At this hearing, which covers pages

400-485 of the Transcript, the State presented the testi-

mony of all the police officers and patrolmen who were

present at the time of the questioning of defendant and who

heard this oral confession and saw him sign Exhibit 16 and

Exhibit 16-1. Each testified that no physical force or

threats were used against defendant and that defendant

voluntarily and of his own free will signed the confession

admitting that he and others went into Donnell’s cell and

cut and beat Donnell and that he himself had used a

kitchen knife six (6) to seven (7) inches in length to slash

Donnell’s face and neck. Each of the officers identified

his signature on Exhibit 16-1 and his initials on Exhibit

COPY

17

16, the latter being the first page of the written statement

and the former the second page thereof. None of the of-

ficers saw a rope in the questioning room and none saw

anyone abuse defendant in any way. Defendant Stidham

himself testified on this preliminary hearing and said that

on being questioned in the Athletic shed on September 27,

1954 he had first denied any knowledge of the death of

Donnell (Tr. 474). At this time defendant Stidham said

that he was held on a stool by handcuffs and a belt at-

tached to the legs thereof and that a coat was placed on

him and his hands were cuffed behind him (Tr. 452).

When he told his interrogators that he would be willing

to submit to a lie detector test, Lt. Eitzman told him that

he would be given that test immediately, and he was there-

upon raised off the floor by a rope attached to the hand-

cuffs on his wrists. The first chaining up lasted fifteen

(15) minutes, according to defendant Stidham’s testimony,

and he still refused to sign a statement, so he was raised

up again and left hanging for thirty-five (35) more min-

utes, during which time he lost consciousness twice and

was beaten. Defendant Stidham testified that he suffered

an injury to his left arm rendering the hand thereof para-

lyzed in places (Tr. 453-455), and defendant further testi-

fied that because of the torture and pain he agreed to write

out Exhibits 16 and 16-1, which he said were dictated to

him by Sgt. Little (Tr. 455). At the close of this testi-

mony the Court made the following ruling:

“THE COURT: 16 and 16-1, it is the Court’s

opinion that the matters concerning the statement

should be offered in the presence of the jury, subject

of course to any attacks as to its credibility by the de-

fendant. The defendant has of course the right to

proceed to challenge the voluntariness of the state-

ment and confession, even before the jury, but it is

the Court’s opinion that upon the evidence that has

been offered before the Court that outside of the hear-

ae &

Eo. cine

Eee EP

CLOSE IN CENTER

a er

18

ing of the jury, that the statement is and should be ad.

missible in evidence, subject to further examination

of witnesses which might be conducted, so we may

proceed with Sgt. Little, as to his identification before

the jury of the statement in question, Exhibits 16 ang

16-1.

“MR. HENNELLY: In other words, the Court

is overruling my motion, and request of the Court to

hold as a matter of law, that these statements were

involuntary, is that right?

“THE COURT: That is right. Mr. Sheriff wil]

you bring the jury back in? [Tr. 486].”

Six police officers them testified before the jury and

each identified Exhibits 16 and 16-1 as defendant’s written

statement and testified that it was voluntarily given (Tr.

486-565). Over defendant’s objection the exhibits were

then introduced into evidence and read to the jury (Tr.

569-571). After reading the confession of defendant Stid-

ham, the State rested its case and the Court denied de

fendant’s motion for judgment of acquittal of Murder in

the First Degree and his motion for a reduction of the

charge (Tr. 572-573). Defendant Stidham’s first witness

was Clyde Bridger, State Registrar of Vital Statistics, who

identified Exhibit FF as a photostat of the Official Certifi-

cate of Death of Walter Lee Donnell, as amended, and also

identified Exhibit G as a photostat of that certificate be-

fore its amendment (Tr. 574-580). The witness testified

that Exhibit G showed the cause of death as being a bullet

wound by gun and that Exhibit FF showed the cause of

death as by injuries multiple, exchanged stab wounds in

heart and lung, brain trauma and crushing injury of skull

(Tr. 581-582), the witness testified that the amendment was

made because of an affidavit furnished by the Cole County

Sheriff. he being the one who signed the original Certifi-

cate of Death (Tr. 582-583). Defendant Stidham then testi-

| 19

fied that on the night in question he was in a cell in the

maximum punishment area of the Missouri State Peni-

tentiary next to the shower, somewhere West of Creigh-

ton’s cell, and that at about 6:30 p.m. he heard the riot

commence (Tr. 592-593). Stidham denied threatening

Donnell or Creighton at any time but recalled that Creigh-

ton had often threatened to kill him and others in the maxi-

mum punishment area (Tr. 593-594). An unknown in-

mate let him out of his cell and he then went upstairs to

B-Hall where he listened to the radio and drank coffee

with other inmates (Tr. 596-597). He denied killing Don-

nell and denied ever being in the cell of Donnell on the

night in question, stating that: “I am a thief, but I am not

a murderer” (Tr. 597). Stidham testified he was ques-

tioned repeatedly about the murder by police officers and

denied any implication at all times (Tr. 597-600). He then

repeated his version of the giving of his oral and written

statement in the Athletic shed at the Missouri State Peni-

tentiary and stated that those statements were given be-

cause of the pain he was suffering and his inability to re-

sist the torture applied (Tr. 600-604). He further denied

being with DeLapp, Laster and Hoover at any time on the \

night in question (Tr. 621) and further testified that the

rope which was used to string him up in the shed was tied

through a web partition and then to the ceiling of the

shed (Tr. 624, 626).

The jury found defendant Stidham guilty of murder

in the first degree and his punishment was assessed at con-

finement in the Missouri State Penitentiary during the

rest of his natural life.

i

4

E

:

:

4

Ko AEP Ra aN WN

20

ARGUMENT

The Eighth Circuit Court Below, Sitting in Habeas,

Incorrectly Applied Sims v. Georgia, 385 U.S. 538, by

Holding That the Finding by the Circuit Court of Butle

County, Missouri, That a Confession Was Not Involun

As a Matter of Law Did Not Comply with Jackson y.

Denno, 378 U.S. 368.

This case involves the correct application by the Cir.

cuit Court of Appeals for the Eighth Circuit of this Court's

Opinion in Sims v. Georgia, 385 U.S. 538, and necessarily

includes a determination to be made as to the correct pro-

cedures in finding a confession voluntary pursuant to Jack-

son v. Denno, 378 U.S. 368. By reference to the opinion of

the Eighth Circuit, attached hereto as Appendix E, it can

be seen that that Court remanded for a hearing consistent

with Sigler v. Parker, 396 U.S. 482, to the United States

District Court for the Western District of Missouri, which

had denied respondent’s petition for writ of habeas corpus

without an evidentiary hearing. The stated basis on which

this case was remanded by the Eighth Circuit is set out at

pages 3-4, and 6 of its opinion as follows:

“We believe that the district court’s analysis is

incorrect. It assumes that Missouri law, at the time

of Stidham’s trial, required the trial court to find that

a confession was voluntary before permitting it to be

considered by a jury. Our examination of the Mis-

souri case law convinces us that a trial court had

and frequently used the right to submit the question of

voluntariness to the jury without a prior determin-

ation that the confession was voluntary.” . . . In its

most recent Stidham opinion, 449 S.W.2d 634 (1970),

the Missouri Supreme Court examined its procedure

and determined that ‘“. . . Missouri employed the so

called Massachusetts procedure ‘impliedly approved in

Jackson v. Denno... .’ In doing so, the court relied

upon State v. Washington, 399 S.W.2d 109 (1966). We

21

point out that State v. Washington was decided after

Jackson became the law, and a comparison of its stand-

ard with those enunicated in the Missouri cases, above

cited reveals the difference between the 1955 and 1966

standards.”

With this basis then the Court cavalierly concluded

that the Circuit Court of Butler County, Missouri, sub-

mitted the voluntariness issue to the jury without making

a prior factual determination that the confession was volun-

tary.

In this regard, the court stated at page 5 of its Opinion:

“Our analysis of the record of Stidham’s trial leads us

to conclude that the trial judge in this case submitted

the voluntariness issue to the jury without making a

prior factual determination that the confession was

voluntary. His finding, that the confession was not

‘involuntary as a matter of law,’ was not, under the

then existing Missouri law, the same as finding that

it was voluntary.”

Petitioner would note that this court was unable to

draw this same conclusion in its Appendix to Jackson v.

Denno. See Footnote 9 to Court’s Opinion at 378 U.S. 380;

and Appendix to the Opinion of the Court at 378 U.S. 397.

These references indicate that it was unclear from appel-

late court opinions as to whether the Massachusetts or

New York procedure was used by the trial court in deter-

mining the voluntariness of confessions.

In essence, then, the Eighth Circuit has found that the

Missouri procedure prior to Jackson v. Denno, was the

same as that procedure used by New York struck down in

Jackson. This was done irrespective of the fact that the

Missouri Supreme Court had, in State v. Washington, (Mo.

Sup. 1966) 399 S.W.2d 109, held that the pre-Jackson cases

in Missouri were indistinguishable in legal effect from the

: 22

Massachusetts rule approved. In that case, the court

stated:

“| . The Missouri practice does not run afoul of the

rules laid down in those cases for the determination

of a voluntariness of a confession. In Jackson y.

Denno, 378 U.S. 368, Footnote 7 at page 377, 84 S.Ct.

1774, at page 1781, 12 L.Ed.2d 908, states that: ‘Under

the New York rule the judge is not required to ex-

clude the jury while he hears evidence as to volun-

tariness and perhaps is not allowed to do so.’ The

New York practice was condemned in Jackson y.

Denno. It seems the practice of the State of Wash-

ington was quite similar to the New York rule. The

Missouri practice is indistinguishable in legal effect

from the Massachusetts rule as described and impliedly

approved in Jackson v. Denno. See also Common.

‘wealth v. Marshall, 338 Mass. 460, 461-462, 155 N.E.2d

798, 800. The Missouri practice contemplates a pre.

liminary or voir dire examination to determine the

competency of a confession before it is presented to

the jury.” This is a full hearing on the voluntariness

of a confession out of the presence of the jury anda

finding by the court that the confession was voluntary

before it is admitted in evidence. State v. Howard,

Mo., 383 S.W.2d 701, 702[1]. Thereafter, the witnesses

to the circumstances under which the confession was

made testify before the jury. The jury then deter-

mines the probative value of the confession under the

instructions of the court which direct the jury to dis-

regard it entirely if the jury finds the confession was

not voluntarily made. State v. Deyo, Mo., 387 S.W.2d

561, 564, 565 [5, 6]; State v. Howard, Mo., 383 S.W.2d

701, 702 [1].” Id. at 114.

Petitioner would submit that as Circuit Judge Gibson

said in dissent, at page 9, the Supreme Court of Missouri

is the best interpreter of its own cases.

To reach its conclusion that a Missouri trial court

“could and frequently did” submit the question of volun-

COPY BOUND CL4

23

tariness to a jury without prior determination of volun-

tariness by the court, the Eighth Circuit quoted from State

y. Gibilterra, 116 S.W.2d 88, 94, at page 4 of its Opinion.

Taken in context, the quote should read as follows:

“It is not the law that if there be any substantial evi-

dence indicating the confession was voluntary the

court must refer the question to the jury, however

much it may be outweighed by evidence to the con-

trary. If that were true the court would be doing no

more than it always does throughout a trial in ruling

on the admissibility of evidence; and there would be

no need of such preliminary hearings except in the

rare instances when such evidence is wholly lacking.

On the other hand, when there is substantial con-

flicting evidence and the question is close it is better

to refer the underlying issue of voluntariness to the

jury than to exclude the confession, since there is less

chance of a miscarriage of justice by leaving the ques-

tion open to a second determination, before the jury

on a rehearing of the evidence under proper instruc-

tions, than by foreclosing the inquiry. . . .” [Emphasis

in original.] Id. at 93-94.

Similarly, the Eighth Circuit’s reliance on State v. San-

ford, 193 S.W.2d 37 (1946) is misplaced. Sanford was a

concurring opinion by Judge Hyde of the Missouri Supreme

Court, in a trilogy of cases cited as State v. Ellis, 193 S.W.2d

31, State v. Sanford, 193 S.W.2d 35, and State v. Ellis, 193

S.W.2d 37. The majority opinion for the Supreme Court

of Missouri, sitting en banc, in this trilogy of cases was

written by Judge Douglass and was a case concerning the

applicability of Lyons v. State of Oklahoma, 322 US. 596;

and Ashcraft v. Tennessee, 322 U.S. 143, it being defend-

ant’s position in that case that his confessions were in-

voluntary as a matter of law and, thus, should not have

been admitted into evidence by the trial court in that he

was not taken before a committing magistrate having juris-

ISE IN CENTER

24

diction over the crime, Factually, then, the Eighth Cir.

cuit’s reliance on State v. Sanford is inappropriate.

Likewise the reference in State v. Laster, 293 S. W.24

300, relied upon by the Eighth Circuit factually differs

from the case under instant consideration. In that case,

when the State had indicated that the confession of De

fendant Laster would be offered, a co-defendant with Re.

spondent Stidham, the court conducted a hearing outside

of the presence of the jury, at which Defendant Laster of-

fered no testimony. The Supreme Court of Missouri then

stated:

“Since the defendant chose not to introduce any evi-

dence at the preliminary hearing, and the state made

a prima facie case on the voluntary nature of the con-

fession, the court necessarily ruled it admissible. State

v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88, 93. In some

instances our courts have considered also the evidence

adduced before the jury in making a final ruling on

the admissibility of a confession. State v. Gibilterrs.

supra; State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949,

954. Here there was no motion to strike the confession

‘ at the conclusion of all the evidence. We rule the con-

t fession admissible, however, on the broader ground

4 that on all the evidence there was no showing suf-

E ficiently strong to convince the court conclusively, or

as a matter of law, that the confession was involun-

tary....” Id. at 303-304.

n ~ - 35 te Sue sh Rie wane be ee

Sebctie Sgt RAE AN ER AR

ik tar ia eet Lens pe aa

AE RAT BE e

Petitioner does not contend that the Missouri pro-

cedure prior to Jackson v. Denno, supra, strictly followed

either the Wigmore rule, nor the Massachusetts rule. Pe-

titioner does contend, however, that Missouri practice has

consistently contemplated a preliminary or voir dire ex-

amination to determine the competency of a confession

before it may be presented to a jury.. That Missouri prac-

tice has consistently contemplated that the hearing is to

be outside the presence of the jury, and that all evidence

J RE

She aia. tate

CER See Rode Peete

COPY BOUND.

25

dealing with the voluntariness of the confession is to be

presented for the court. Additionally, Missouri practice

has consistently contemplated that the State carries the

burden of proving voluntariness and that before a jury

may consider a confession, the judge must find that the

confession is not involuntary as a matter of law. Thus,

petitioner would submit that the Eighth Circuit Court of

Appeals has incorrectly interpreted Jackson v. Denno.

Irrespective, however, of what Missouri law may or

may not have been as to the voluntariness of confessions

in 1955, petitioner would submit that on the historical

record presented herein, that the Circuit Court of Butler

County, Missouri, did make a determination concerning

the voluntariness of Respondent Stidham’s confession and

that that determination complied with Jackson v. Denno.

Counsel for Respondent Stidham requested that a hearing

be held outside the presence of the jury. Such a hearing

was had, covering pages 400 through 485 of the transcript,

Cause No. 45537. By motion, defense counsel requested:

“The court to conduct a preliminary examination

and ask the court to inquire into the voluntariness of

the statement, and to determine whether the state-

ment was given voluntarily . . . and we ask that the

hearing be conducted outside the hearing of the jury.”

At the end of this voir dire hearing, and after hearing

the testimony of two Missouri State Highway Patrolmen,

and four City of St. Louis Policemen, the court ruled as

follows:

“The Court: Now, at the conclusion of the hearing

held outside of the hearing of the jury, the request of

the defendant for a hearing upon the statement which

has been identified as

“Mr. Riley: 16 and 16-1.

1 Oar IN CENTER

26

“The Court: 16 and 16-1, it is the court’s opinion that

the matters concerning the statement should be offered

in the presence of the jury, subject, of course, to any

attacks a&to its credibility by the defendant. The de.

fendant has, of course, the right to proceed to chal-

lenge the voluntariness of the statement and confes.

sion, even before the jury, but it is the court’s opinion

that upon the evidence that has been offered before

the court and outside of the hearing of the jury, that

the statement is and should be admissible in evidence.

subject to further examinations of the witnesses which

might be conducted, so we may proceed with Sergeant

Little, as to his identification before the jury of the

statement in question, Exhibit 16 and 16-1.

‘Mr. Henley: In other words, the court is overruling

my motion, and request that the court to hold as a

matter of law, that these statements were involun-

tary, is that right?

“The Court: That is right. Mr. Sheriff, will you

bring the jury back in?”

Petitioner will submit that the trial court has quite

clearly, and ‘with unmistakable clarity” determined the

voluntariness of the confession pursuant to the standards

in Jackson v. Denno. Apparently, the requirement of Jack-

son v. Denno, is that certain talismanic words must appear

on the record before the procedure complies with the re-

quirements of due process. In this regard, Judge Gibson

of the Circuit Court below in dissent stated:

“The argument here appears to be more a matter of

semantics or technicalities than a substantial pro-

cedural defect in trial proceedings. The trial court's

decision in admitting the confession was based on con-

flicting evidence, the same evidence that is now urged

to upset the verdict and judgment of the state court.

No new evidence has been adduced and we are in

effect now being asked to review this same evidence

and hold the procedure bad because the judge did not

27

use the magic rubric ‘voluntary’ but said in effect, as

is clearly shown by the record, that the confession was

admissible and not involuntary as a matter of law. By

refusing to hold that the confession and statements

were involuntary, the court in the context of this hear-

ing would be holding that the confession and state-

ments were voluntary. This particular preliminary

hearing on the confession and statements was not held

just to see if there was conflicting evidence, as under

the New York Rule held defective in Jackson v.

Denno.”

In light of the foregoing, petitioner would submit that

the Eighth Circuit has incorrectly applied Sims v. Georgia,

385 U.S. 538, in that the record clearly indicates the Circuit

Court of Butler County, Missouri, found defendant Stid-

ham’s confession voluntary.

Petitioner would also note the unusual circumstances

by which respondent Stidham’s appeal reached the Eighth

Circuit after a successive filing of his petition for writ of

habeas corpus in the United States District.Court for the

Western District of Missouri. By reference to Appendix

G, Appendix H, and Appendix I, it can be seen that on

June 25, 1970, the Eighth Circuit granted respondent Stid-

ham’s Motion to Dismiss his appeal. It can further be seen

that on September 25th, petitioner filed a successive habeas

corpus petition in the United States District Court for the

Western District of Missouri, and simultaneous therewith

filed a motion to reinstate his appeal in the Court of Ap-

peals. The Court of Appeals denied his motion but the

United States District Court for the Western District of

Missouri entertained respondent’s second petition and in

reliance on its prior order denied issuance of the writ. It

is this second denial of exact issues which respondent ap-

pealed to the Eighth Circuit. While petitioner recognizes

that res judicata is not a general rule applied in habeas

i ROP BOL i

28

corpus proceedings, petitioner would submit that what is

exhibited on-this record is an abuse of the habeas pro-

ceedings.

Petitioner concludes that an abuse of the habeas pro-

cedure is seen by the litigious nature of the respondent,

and would particularly note the dismissal of this cause

originally before the Eighth Circuit, and the subsequent

second filing on the exact issue before the. District Court.

Respondent would conclude that pursuant to Title 28, Sec-

tion 2244(b); Salinger v. Loisel, 265 U.S. 224; and Smith y.

Yeager, 393 U.S. 122, that the Circuit Court below abused

its discretion in allowing the docketing of petitioner’s

second appeal in this case. Quite candidly, petitioner

would admit that this issue was not briefed to the Circuit

Court below, but would contend that this issue goes to the

jurisdiction of the Circuit Court below to hear this cause

and therefore this court may enter judgment.

WHEREFORE, petitioner prays that a writ of certiorari ©

be issued to the United States Court of Appeals for the

Eighth Circuit, and that this case be reviewed by this court

and that the judgment below should be reversed.

JOHN C. DANFORTH

Attorney General

KENNETH M. ROMINES

Assistant Attorney General

Supreme Court Building

Jefferson City, Missouri 65101

Attorneys for Petitioner