# Petitioners Brief — Swenson v. Stidham

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1973
- **Citation:** 409 U.S. 224

## Text

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MAR 21.1972

MICHAEL RCDEK, JR.,CLERK

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PTT

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No. 71-224

HAROLD R. SWENSON, Warden, Missouri State
Penitentiary,
Petitioner,
vs.
JAMES WILLIAM STIDHAM,
Respondent.

On Writ oF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONER

JoHN C. DANFORTH
Attorney General

KENNETH M, RoMINES
Assistant Attorney General
Supreme Court Building
Jefferson City, Missouri 65101
314—636-7131
Attorneys for Petitioner

E. L. MENDENHALL, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

INDEX
Cpisiims RLOW ace ssiccsnsscseznetseensanssineseesrasoncntnsesnastusposestyonce 1
Jurisdictional Statement 2... .-neceesseseneecsseegeceeeeesneeens 2
(ote 17s 6) et | een oe eee 2
Statutory Provisions Involved oou.2.......e.eeeeee ieee eee 3
Statement ..........----------ceccscerenceccnnscoseseseosecensesncsneecensescenesseseseese 11
Summary of Argument 222. ceececceeecececeeeeeeeeeeeeeee 33

Argument—

The Eighth Circuit, hearing a case in habeas corpus,
incorrectly interpreted Missouri law when it held
that the procedure used at state trial in Missouri
in 1955 for testing the competency of a confession,
and its subsequent submission to the jury did not
meet the minimal standards of Jackson v. Denno 35

The Eighth Circuit, hearing a case in habeas corpus,
incorrectly applied Simms v. Georgia, 385 U/S.

538, by holding that the finding by the Circuit
Court of Butler County, Missouri, in a state crim-
inal trial in 1955, that a confession was not in-
voluntary as a matter of law did not comply with
Jackson v. Denno, 378 U.S. 268 000... cece 47

Conclusion ..............eeeeeeeeeee eee Es Ueenrenseuceuudadaanisdaseseusdseeseveevavie-n 59

TABLE OF CASES

Adams v. Illinois, ........ US. ........, 40 L.W. 4255, 4258
RUDELY. seinedstte ca aycenputecesecuncoransnsentustaycessnsteniedssvsespuetveseeheeones 57

Boulden v. Holman, 394 U.S. 478, 480 (1969) 0000000... 46, 54

Coleman v. Alabama, 399 U.S. 1 (1970) 00.000. 58

Hector (A Slave) v. The State (Mo. Sup. 1829) 2 Mo.
CD 38

:
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4
b
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4
2
g
A
“a
x
i
d

I INDEX

Jackson v. Denno, 378 U.S. 368 (1964)

soperaeriseneeiaeierisaceesten 2,3, 34, 35, 37, 46, 47, 48, 50, 53 54
Lego v. Toomey, ........ US. ae , 30 L.Ed.2d 618, 625
CUGTZ) sacavenricnnscntsnsdovense aianensdesscercoarptnassesnstvasaccesennasucesey 44, 45 54
Mackey v. U. S., 401 U.S. 667 (1971) -...002 56,57
Procunier v. Atchley, 400 U.S. 446 (1971) -.000... 34, 55, 56
Rogers v. Richmond, 365 U.S. 534 (1961) 2.002. 46
_ Salinger v. Loisel, 265 U.S. 224 (1924) —.0000 ee... 58
Sanders v. U. S., 373 U.S. 1 (19638) 22... eeeeceeeeceeeeee 58
Sigler v. Parker, 396 U.S. 482 (1970) .......000 2, 36
Simms v. Georgia, 385 U.S. 538, 544 (1967) 20.
Fees eat ens ee een phe Syn eueces poche cnca ey taanne a ceen estas teesee 3, 34, 47, 48, 50
Smith v. Yeager, 393 U.S. 122 (1968) . .. 58
Stidham v. Swenson (8th Cir. 1971) 443 F.2d 1327,
1331 ..........-.-- Spee een at ee eepe eemneneeraectas emesis 2, 36
Stidham v. Swenson (W.D. Mo. 1970) 328 F.Supp.
1291 ..... pei Canaan penne 2,13
State v. Bradford (Mo. Sup. 1953) 262 S.W.2d 584,
SO cher cee anteater nee 42, 46
State v. Bridges (Mo. Sup. 1961) 349 S.W.2d 214, 217 45
State v. Brown (Mo. Sup. 1881) 73 Mo. 631 -...0002.. 38
State v. Gibilterra (Mo. Sup. 1938) 116 S.W.2d 88,
93, 95 ..... ence ina eied deta aenesceeetryiseet een 40, 41, 45, 54
State v. Glenn (Mo. Sup. 1968) 429 S.W.2d 225 ............ 4

State v. Hopkirk (Mo. Sup. 1884) 84 Mo. 278, 283-284 38
State v. Jones (Mo. Sup. 1874) 54 Mo. 478 ................... 38
State v. Laster (Mo. Sup. 1956) 293 S.W.2d 300, 303-304 43
State v. McKenzie (Mo. Sup. 1898) 45 S.W. 1117, 1119 38
State v. Nolan (Mo. Sup. 1968) 423 S.W.2d 815 ............ 44
State v. Patterson (Mo. Sup. 1881) 73 Mo. 695, 706 .... 38
State v. Stidham (Mo. Sup.) 403 S.W.2d 616

INDEX Ill

State v. Stidham (Mo. Sup. 1957) 305 S.W.2d 7,
| 1, 12, 44,51

State v. Stidham (Mo. Sup. en banc 1967) 415 S.W.2d
OT ccna teen teeritasirasa nasa sanndeecayeeaheesesins eked teneecee ae 1, 13,51

State v. Stidham (Mo. Sup. 1970) 449 S.W.2d 634,
ae _.1, 13, 52

State v. Tharp (Mo. Sup. 1933) 64 S.W.2d 249, 255-256. 40
State v. Washington (Mo. Sup. 1966) 399 S.W.2d 109,

DI ocean cette teense dp nensener seen popka rien esceeeeetnoeese peace . 36
State v. Wilson (Mo. Sup. 1909) 122 S.W. 671, 675 ........ 39
State v. Wooley (Mo. Sup. 1908) 115 S.W. 417, 437 ....39, 46
Swenson V. Bosler, 386 U.S. 258 (1967) 0.0. 51
Townsend v. Sain, 372 U.S. 293 (1963) 2. 55

STATUTORY CITATIONS
Rule 22(b), F.R.App.P. 22... ceeeeeeceeeeceseeeeeeeeeeeeee 58
Rule 27.26, V.A.MLR. 2202... ececeececeeeeeeeeeeeeeeeeee 7, 12, 13, 51, 52
Title 28, U.S.C.A., Section 1254 oo 2
Title 28, U.S.C.A., Section 1291 woes. 8
Title 28, U.S.C.A., Section 2101 000 2
Title 28, U.S.C.A., Section 2253 200. 3
Title 28, U.S.C.A., Section 2254 200. 2, 4, 55, 58

U. S. Constitution, Fourteenth Amendment ................ 33, 46

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No. 71-224

HAROLD R. SWENSON, Warden, Missouri State
Penitentiary,
Petitioner,

Vs.

JAMES WILLIAM STIDHAM,
Respondent.

On WrIT OF CERTIORARI TO THE UNITED STATES CouRT OF
APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONER

Comes now the petitioner, Harold R. Swenson,
Warden, Missouri State Penitentiary for Men at Jefferson
City, Missouri, and seeks Writ of Certiorari to the United
States Court of Appeals for the Eighth Circuit and would
state and allege in the following particulars, to-wit:

OPINIONS BELOW

The Opinions of the Supreme Court of Missouri are
cited as State v. Stidham (Mo. Sup. 1957) 305 S.W.2d
7; State v. Stidham (Mo. Sup. 1967) 415 S.W.2d 297; and
State v. Stidham (Mo. Sup. 1970) 449 S.W.2d 634, and
appear as Appendixes D, E and F. That the opinion of the

Pin at q

2

United States District Court for the Western District of
Missouri is cited as Stidham v. Swenson (W.D. Mo,
1970) 328 F.Supp. 1291, and appears as Appendix
G. That the opinion of the United States Court of Ap.
peals for Eighth Circuit is cited as Stidham v. Swenson
(8th Cir. 1971) 443 F.2d 1327, and appears as Appendix K.
A Motion for Rehearing or Transfer to the Eighth Circyjt
En Banc was denied by an equally divided court on June
11, 1971 and appears as Appendix L.

JURISDICTIONAL STATEMENT

Respondent 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 Mis.
souri, 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 court without oral argument, or appointment
of counsel for Stidham, by its opinion filed on May 24, 1971,
remanded the cause to the District Court for further pro-
ceedings consistent with the remedy provided for in Sigler
v. Parker, 396 U.S. 482 (1970). [See also, Stidham v. Swen-
son (W.D. Mo. 1970) 328 F.Supp. 1288]

Jurisdiction is conferred upon this Court by the pro-
visions of Section 1254, Title 28, U.S.C.A., in that this pe-
tition was 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.

QUESTIONS PRESENTED

Did the Eighth Circuit Court, hearing a case in habeas
corpus, correctly interpret Missouri procedure when it held
that the Missouri procedure as to the introduction of confes-
sions in evidence before a-jury in a 1955 trial did not com-
ply with Jackson v. Denno, 378 U.S. 368?

3

Did the Eighth Circuit Court of Appeals, hearing a
case in habeas corpus, correctly apply Simms v. Georgia, 385
US. 538, by holding that a finding by which a confession
was found to be “. . . [NJot involuntary as a matter of
law...” did not comply with Jackson v. Denno, 378 U.S.

368?

Did the Eighth Circuit Court of Appeals abuse its dis-
cretion 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 States District Court of
Guam, and the District Court of the Virgin Islands, ex-
cept where a direct review may be had in the Supreme
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 re-
view, on appeal, by the court of appeals for the circuit
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
to remove, to another district or place for commitment
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 proceed-
ing where the detention complained of arises out of

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4

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 appli-
cation for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation 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
process 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 avail-
able 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 com-
petent jurisdiction in a proceeding to which the appli-
cant 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

H)

indicia, shall be presumed to be correct, unless the ap-
plicant shall establish or it shall otherwise appear, 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 appli-
cant in the State court proceeding;

“(5) 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 deter-
mination of the 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:

And in an evidentiary hearing in the proceeding in the
Federal court, when due proof of such factual deter-

akbar: Cone R

6

mination has been made, unless the existence of one
or more of the circumstances respectively set forth jn
paragraphs numbered (1) to (7), inclusive, is shown
by the applicant, otherwise appears or is admitted by
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 a
whole, does not fairly support such factual determina.
tion, the burden shall rest upon the applicant to estab-
lish by convincing evidence that the factual determina-
tion 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 factual
issue made therein, the applicant, if able, shall produce
that part of the record pertinent to a determination of
the sufficiency of the evidence to support such deter-
mination. If the applicant, because of indigency or
other reason is unable to produce such part of the rec-
ord, then the State shall produce such part of the rec-
ord and the Federal court shall direct the State to do
so by order directed to an appropriate State official.
If the State cannot provide such pertinent part of the
record, then the court shall determine under the ex-
isting facts and circumstances what weight shall be
given to the State court’s factual determination.

“(f) A copy of the official records of the State
court, duly certified by the clerk of such court to bea
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

Missouri Supreme Court Rule 27.26, V.A.M.R., provides:

“A prisoner in custody under sentence and claim-
ing a right to be released on the ground that such sen-
tence was imposed in violation of the Constitution and
laws of this State or the United States, or that the
court imposing such sentence was without jurisdiction
to do so, or that such sentence was in excess of the
maximum sentence authorized by law or is other-
wise subject to collateral attack, may file a motion at
any time in the court which imposed such sentence to
vacate, set aside or correct the same. The following
procedure shall be applicable to motions filed pursu-
ant to this Rule:

(a) Nature of Remedy. This Rule is intended
to provide the exclusive procedure which shall be fol-
lowed when a prisoner in custody seeks relief on the
basis of any of the attacks on a sentence enumerated
above. The motion seeking such relief shall be filed
in the court where the sentence was imposed. This
Rule does not suspend.the rights available by habeas
corpus but rather prescribes the procedure to be fol-
lowed in seeking the enforcement of those rights. It
includes all relief heretofore available in any court by
habeas corpus when used for the purpose of seeking
to vacate, set aside or correct a sentence, plus relief
not available by habeas corpus. A motion filed here-
under is an independent civil action which should be
separately docketed. The procedure before the trial
court and on appeal is governed by the Rules of Civil
Procedure insofar as applicable. No cost deposit shall
be required. ‘

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8

(b) When Remedy May Be Invoked.

(1) The provisions of this Rule may be invoke
only by one in custody claiming the right to have a
sentence vacated, set aside or corrected.

(2) A motion to vacate, set aside or correct a
sentence cannot be maintained while an appeal from
the conviction and sentence is pending or during the
time within which an appeal may be perfected.

(3) A proceeding under this Rule ordinarily can-
not be used as a substitute for direct appeal involving
mere trial errors or as a substitute for a second appeal.
Mere trial errors are to be corrected by direct appeal,
but trial errors affecting constitutional rights may be
raised even though the error could have been raised
on appeal.

(c) Form and Sufficiency of Motion. A mo-
tion to vacate a sentence must be submitted on a
form substantially in compliance with the form ap-
pended hereto. The™motion shall include every ground
known to the prisoner for vacating, setting aside or
correcting his conviction and sentence. The prisoner
shall verify the correctness of the motion, including
the fact that he has recited all claims known to him.

(d) Successive Motions. The sentencing court
shall not entertain a second or successive motion for
relief on behalf of the prisoner where the ground pre-
sented in the subsequent application was raised and
determined adversely to the applicant on the prior
application or where the ground presented is new
but could have been raised in the prior motion pur-
suant to the provisions of subsection (c) of this Rule.
The burden shall be on the prisoner to establish that
any new ground raised in a second motion could not
have been raised by him in the prior motion.

9

(e) Hearing. As soon as a motion hereunder is
received by the circuit clerk, he shall notify the prose-
cuting attorney and transmit a copy thereof to him.
If appointment of counsel is required under (h) of
this Rule, such counsel shall be appointed immediately
and a copy of the motion transmitted to him. Unless
the motion and the files and records of the case con-
clusively show that the prisoner is entitled to no relief,
a prompt hearing shall be held. ‘Prompt’ means as
soon as reasonably possible considering other urgent
business of the court. This hearing shall be an evi-
dentiary hearing if issues of fact are raised in the
motion, and if the allegations thereof directly con-
tradict the verity of records of the court, that issue
shall be determined in the evidentiary hearing. Al
proceedings on the motion shall be recorded by the
official court reporter.

(f) Burden of Proof. The prisoner has the
burden of establishing his grounds for relief by a pre-
ponderance of the evidence.

(g) Presence of Prisoner. The prisoner shall be
produced at any evidentiary hearing on a motion at-
tacking a sentence where there are substantial issues
of fact.

(h) Right to Counsel. If a motion presents
questions of law or issues of fact, the court shall ap-
point counsel immediately to assist the prisoner if he
is an indigent person. Counsel shall be given a rea-
sonable time to confer with the prisoner and to amend
the motion filed hereunder if desired. Counsel shall
have the duty to ascertain from the prisoner whether
he has included all grounds known to the prisoner as
a basis for attacking the judgment and sentence and
to amend the motion to include any claims not al-

Pee ee Oe

10

ready included. If, for good cause shown, appointed
counsel is permitted to withdraw, the trial court shal]
appoint new counsel in his stead.

(i) Judgment. The court shall make findings of
fact and conclusions of law on all issues presented,
whether or not a hearing is held. If the court finds
that the judgment was rendered without jurisdiction,
or that the sentence imposed was illegal or otherwise
subject to collateral attack, or that there was such a
denial or infringement of the constitutional rights of
the prisoner as to render the judgment subject to col-
lateral attack, the court shall vacate and set aside the
judgment and shall discharge the prisoner or resen-
tence him or grant a new trial or correct the sentence
as May appear appropriate.

(j) Appeal. An order sustaining or overruling
a motion filed under the provisions of this Rule shal]
be deemed a final judgment for purposes of appeal by
the prisoner or by the State. An appeal may be taken
from the order entered on the Motion as in a civil
case as authorized by § 512.020, RSMo 1959, V.A.MS.
Appellate review shall be limited to a determination
of whether the findings, conclusions and judgment of
the trial court are clearly erroneous.

(k) Costs. If the trial court finds that a prisoner
desiring to appeal is an indigent person, it shall au-
thorize an appeal in forma pauperis and furnish with-
out cost the transcript of such proceeding for appel-
late review. The trial court, when the appeal is taken,
shall order the official court reporter to prepare the
transcript promptly. If the trial court finds adversely
to a prisoner on the issue of indigency, it shall certify
and transmit to the appellate court a transcript of the
evidence on that issue only so as to permit review of
that issue by the appellate court.

11

(1) Counsel on Appeal. If a prisoner desires to
appeal and contends he is without means to employ
counsel to perfect the appeal, the trial court, if satis-
fied that the prisoner is an indigent person, shall ap-
point competent counsel to conduct such appeal. Such
counsel, may, in the discretion of the court, be the
same counsel who represented the prisoner in the trial
court on said motion. If, for good cause shown, ap-
pointed counsel is permitted to withdraw, the trial
court shall appoint new counsel in his stead.

STATEMENT

Respondent is presently confined at the Missouri State
Penitentiary at Jefferson City, Missouri, serving a life sen-
tence for First Degree Murder. The procedural history
of this case is as follows: On November 23, 1954, an in-
dictment was returned by the Grand Jury and filed in
the Circuit Court of Cole County, Missouri, charging de-
fendant and six other penitentiary inmates with the First
Degree murder of Walter Lee Donnell, another inmate at
that institution, on or about September 22, 1954, during a
riot at the Missouri State Penitentiary (App. A, Tr. 5,
Cause No. 45537). On that same date, all of those accused
including defemdant were arraigned before the Court and
counsel was appointed to represent each of them individ-
ually. On December 6, 1954, all of the accused entered
pleas of not guilty (App. A, Tr. 5, 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 (App. A, Tr. 5, Cause No. 45537).
On December 20, 1954, the Court sustained the Motion for
a Severance (App. A, Tr. 18, Cause No. 45537), and denied
the Motion to Dismiss (App. A, Tr. 19, Cause No. 45537)
and the Motion to Suppress (App. A, Tr. 20, Cause No.

op de os

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abel aS DRE Se PRA Oe:

12

45537). On December 23, 1954, the Court denied the Mo.
tion for a Polygraph Examination and on January 3, 1955,
the State confessed the Motion for Production and Inspec.
tion (App. A, Tr. 22, 24, Cause No. 45537). On February
15, 1955, defendant filed an application 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 (App.
A, Tr. 27-44, Cause No. 45537). On February 16, 1955,
Judge Blair sustained the application for his disqualifica.
tion and so notified the Supreme Court of Missouri (App.
A, Tr. 45, Cause No. 45537). On February 22, 1955, on
order of the Supreme Court of Missouri, er P.
Adams was transferred to hear appellant’s c € and on
February 25, 1955, Judge Adams sustained defendant’s ap-
plication for change of venue and transferred this cause to
the Circuit Court of Butler County, Missouri (App. A, Tr.
45-49, Cause No. 45537).

On April 25, 1955, defendant waived formal arraign-
ment, pleaded not guilty and the cause proceeded to trial
before a jury. Upon learning that the jury had read a
newspaper account of the trial, the Court granted defend-
ant’s request for a mistrial and the cause was reset for
July 18, 1955 (App. A, 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 assess-
ing his punishment at life imprisonment (App. A, 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

13

the Circuit Court of Butler County, Missouri, 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
judgment. State v. Stidham, (Mo. Sup.) 403 S.W.2d 616.

Thereafter, respondent filed a pro se Motion to Vacate
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 va-
cate and on appeal, the Supreme Court of Missouri re-
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
a stipulation of facts were offered and received in evi-
dence and appellant and the State introduced other evi-
dence pertaining to the issues made by the pleadings. On
April 14, 1969, appellant’s motion to set aside judgment
and sentence was overruled (App. B, Tr. 130, Cause No.
54674). A consolidated appeal, both reinstated direct ap-
peal 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 a 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, 328 F.Supp. 1291]. From this denial

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14

respondent filed a Notice of Appeal and a request for Cer.
tificate of Probable Cause which was granted. On June
25, 1970, the United States Court of Appeals for the Eighth
Circuit granted respondent’s Motion to Dismiss his appeal
and on October 14, 1970, denied respondent’s Motion to
Reinstate his appeal on Eighth Circuit docket. On Sep.
tember 25, 1970, appellant filed a second petition for
habeas corpus in the United States District Court for the
Western District of Missouri in which he stated identica]
grounds as his prior petition, and additionally attacked
lack of counsel at preliminary hearing. The United States
District Court for the Western District of Missouri denied
his petition for writ of habeas corpus, and an appeal was
taken to the United States Court of Appeals for the Eighth
Circuit. That Court, without oral argument, on the 24th
day of May, 1971, reversed and remanded to the District
Court for further proceedings provided for in Sigler y,
Parker, 396 U.S. 482 (1970), requiring a further eviden-
tiary hearing before the Missouri courts.

The historical factual evidence presented before the
Missouri Circuit Court in 1955 was as follows: Sgt. E. V.
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-Unit of the Missouri State Penitentiary on September
22 and 23, 1954 and in describing that building and the
contents thereof (App. A, Tr. 57-64, Cause No. 45537),
this witness also identified Exhibits 2, 3, and 7 as photo-
graphs showing gates, passageways and cells in and
around the maximum punishment 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 severely mutilated body of
a man in Cell-18 of the maximum punishment area (App.

15

A, Tr. 91-92, Cause No. 45537). Lt. Barton identified Ex-
hibit 8 as a photograph of a man whose body he found and
it was introduced into evidence (App. A, Tr. 93-94, Cause
No. 45537). Lt. Barton further identified Exhibit 9, a six-
teen pound sledge hammer, as the instrument he found
beside the body on the night in question and further iden-
tified Exhibit 10 as a photograph of Cell-18 of the maxi-
mum punishment area (App., A, Tr. 9598, Cause No.
45537). 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 Mis-
souri State Penitentiary were standing open with water
on the floor and debris scattered about (App. A, Tr. 108,
Cause No. 45537).

Sgt. James Rhodes, a Laboratory Chemist for the Mis-
souri State Highway Patrol, testified that he analzyed
stains on Exhibit 9, the sledge hammer, and that they were
human blood (App. A, Tr. 128-130, Cause No. 45537).

J. G. Lamar, Superintendent of Records at the Missouri
State Penitentiary, testified that he had control and super-
vision 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 Missouri State Peni-
tentiary, and stated that on September 22, 1954, he viewed
Donnell’s dead body (App. A, Tr. 135-136, Cause No.
45537), and further testified that he viewed that dead body
while an autopsy was performed by Dr. Shull (App. A, Tr.
142-144, Cause No. 45537).

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 Exhibit
8, the photograph of Donnell, and that he removed the
body to the funeral home and embalmed it (App. A, Tr.

16

152-155, Cause No. 45537). 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 (App. A, Ty.
155-156, Cause No. 45537). In his opinion the back wounds
were made with a knife and front wounds with a round
instrument (App. A, Tr. 157, Cause No. 45537). :

Dr. G. D. Shull testified that in Nashville, Tennessee,
: on September 25, 1954, he performed an autopsy on the
4 body of Walter Lee Donnell. This witness described nu-
merous fractures, punctures, and wounds, and said that it
was his medical opinion that the skull fracture was a mortal
wound (App. A, Tr. 163-168, Cause No. 45537). This wit-
ness testified that two (2) of the five (5) chest stab wounds
passed clear through the heart, while two (2) of the back
wounds had penetrated the heart. The chest wounds were
mortal while the latter in all probability would be so con-
sidered (App. A, Tr. 169-170, Cause No. 45537). 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 (App. A, Tr. 171-172, Cause No. 45537).
; This witness testified that there were no gunshot wounds
; “in the body (App. A, Tr. 172, Cause No. 45537). 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 (App. A, Tr. 174, Cause No. 45537).

LO AME AE GR A PPAR GO

Clarence Dietzel, a member of the guard force at the
Missouri State Penitentiary was on duty at the Missouri
State Penitentiary on the night of the riot, and testified
that he was on duty in B-Unit and that on that night there
were nine (9) inmates in the maximum punishment area,
including defendant Stidham (App. A, Tr. 187-188, Cause

17

No. 45537). A disturbance started in the prison around
6:30 p.m. that night and a group of rioters thereafter tried
to break into B-Hall (App. A, Tr. 189, Cause No. 45537). _
In that group this witness recognized Donald DeLapp, Paul
Kenton, Jackie Lee Noble, William Hoover, and Joseph M.
Vidauri, and he further heard DeLapp yell to Stidham and
tell Stidham that they were coming to get him out and also
heard Stidham yell back for them to hurry (App. A, Tr.
’ 490-192, Cause No. 45537). Mr. Dietzel testified that the
group outside of B-Unit were using a sledge hammer sim-
ilar to Exhibit 9 (App. A, Tr. 203, Cause No. 45537), and
an iron bar beating on the doors attempting to gain en-
trance to B-Unit. DeLapp demanded witness Dietzel’s
keys, which demand was refused (App. A, Tr. 198-199,
Cause No. 45537), but eventually the group of inmates
broke in Gate No. 2 where the witness was and then they
searched him and again demanded the keys to Gate No. 3,
which demand was also refused (App. A, Tr. 204-205, Cause
No. 45537). The group thereafter got through Gate No. 3
and into Death Row, and Noble and others in the group
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
(App. A, Tr. 207-210, Cause No. 45537).

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 (App. A, Tr. 241, Cause No. 45537).
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 custo-
dian of the records of the patients in that hospital (App. A,
Tr. 242, Cause No. 45537). In conference it devc!oped that

18

only three (3) pages of the record, marked for identification
as Exhibits C, C-1, and D were involved (App. A, Tr. 246.
249, Cause No. 45537), 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 (App. A, Tr. 250-259,
: 256-258, Cause No. 45537). For the purposes of the voir
3 dire hearing only the Court admitted Exhibits C, C-1, D, 14
Hy and 15 into evidence and they were incorporated into the
: Transcript (App. A, Tr. 260-267, Cause No. 45537).

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 (App. A, Tr. 267-270, Cause No. 45537).
He admitted being in Fulton State Hospital No. 1, Fulton,
Missouri, for thirty-five (35) days, admitted a cutting
while in the Penitentiary, admitted that he had feigned
an attempted suicide to get out of solitary at the prison
and transferred to Fulton, but denied being in any other
mental institution, denied being taken before a Probate
Court and being committed as an insane person (App. A,
Tr. 270-273, Cause No. 45537). At the close of this hearing,
defendant’s request to have witness Creighton declared in-
competent was refused.

Before the jury, witness Creighton testified that he
was serving a life sentence in the Missouri State Peni-
tentiary and on the night of September 22, 1954, was in Cell
17 in the maximum punishment area, next to Walter Lee
Donnell in Cell 18 (App. A, Tr. 278-279, Cause No. 45537).
Creighton testified that in June, 1954, Stidham began cell-
ing in the maximum punishment area and from then un-

19

til the night of the riot Stidham cursed, ridiculed and
threatened Donnell over and over and told Donnell that
he would kill him if he could get at him (App. A, Tr. 280-
985, Cause No. 45537). 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 Stidham out
of his cell and Stidham begging DeLapp to hurry, during
which time Stidham was continuing to threaten to kill the
witness and Donnell (App. A, Tr. 288-290, Cause No.
45537). Stidham told Donnell that Donnell was to be
killed because he had testified against “Thompson and
them in St. Louis before the grand jury” (App. A, Tr. 291,
Cause No. 45537). Later 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 clearing
the other inmates out of the maximum punishment area
(App. A, Tr. 292-293). This group had a key for the lock
to witness’s cell and were using a pole and a sledge ham-
mer like Exhibit 9 to keep witness back from the front door
of the cell. During all of this the witness received a
broken jaw but by jamming the lock to the cell with con-
crete, a comb and “junk” he kept them from getting in
(App. A, Tr. 294-296, Cause No. 45537). He heard Stid-
ham tell Donnell they would get him next (App. A, Tr.
297, Cause No. 45537) and then the group moved to Don-
nell’s cell where the sledge was again used (App. A, Tr.
295, Cause No. 45537).

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 Stidham, headed
for Donnell’s cell and went out of witness’s sight, where-
upon witness heard Donnell begging, hollering and plead-
ing for his life, witness then heard a gurgling sound and
saw the seven (7) men run out of the cell but thereafter

20

he did not see any of them during that night (App. A, Ty.
297-299, Cause No. 45537).

Herman Trout, an inmate of the Missouri State Penj-
tentiary and a plumber of that institution, testified that
on the night in question he went into his shop in B-Unit
after the riot started (App. A, Tr. 335-337, Cause No,
45537) and hid his tools from the rioters 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 (App. A, Tr. 338-340, Cause
No. 45537). At DeLapp’s direction a fire was started and
‘ later Vidauri and Noble joined them and knives were pro-
: duced (App. A, Tr. 341-342, Cause No. 45537). Witness

Trout testified that the group eventually got the three (3)

doors leading into the maximum punishment area open

and Stidham and Laster were let out of the cells, where-

upon witness saw DeLapp put his arm around Stidham and
say “Gentlemen, I have brought you this far, this is your
ei leader from here on.” (App. A, Tr. 344-346). Stidham and
: others then got weapons, took Guard Dietzel out of that
area and after getting other inmates cleared out, went
down into the cage of cells in the maximum punishment
area proper (App. A, Tr. 347-351, Cause No. 45537). Wit-
ness Trout heard hollering and yelling, and after the hol-
lering stopped Stidham and the others emerged from death
row and washed their hands in a wash basin and dis-
carded some of their clothing (App. A, Tr. 352, Cause No.
45537). 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 (App. A,
Tr. 353-354, Cause No. 45537). While the seven (7) were
getting into the maximum punishment area-and while they
were there, including the time that they washed and left

sealable Rue tt LI 8 ;
,

21

the area, witness was in the dark in a position where the
group could not see him (App. A, Tr. 384, 388, Cause No.
45537). Witness testified that he did not see who
murdered Walter Lee Donnell (App. A, Tr. 389, Cause No.
45537).

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
Stidham in the Athletic Building of the State Penitentiary,
and Stidham wrote out a statement, identified as Ex-
hibits 16 and 16-1, and then signed it (App. A, Tr. 394-
396, Cause No. 45537). At this stage the Court granted
Stidham’s counsel’s request for a preliminary hearing in-
quiring into the voluntariness of the oral and written
statements made by defendant (App. A, Tr. 398, Cause No.
45537).

At this voluntariness hearing, which covers pages 400-
485 of the Transcript, Appendix A, Cause No. 45537, the
State presented the testimony of all the police officers and
patrolmen who were present at the time of the question-
ing of Stidham and who heard his oral confession and saw
him sign Exhibit 16 and Exhibit 16-1. Each testified that
no physical force or threats were used against Stidham
and that Stidham 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 16, the latter being the first page
of the written statement and the former the second page
thereof. None of the officers saw a rope in the question-
ing room and none saw anyone abuse Stidham in any

way.

22

Stidham himself testified on this voluntariness hear.
ing 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 (App. A, Tr. 474, Cause No. 45537),
At this time Stidham said that he was held on a stool by
> _ handcuffs, had a belt attached to the legs, a coat was placed
on him and his hands were cuffed behind him (App. A,
Tr. 452, Cause No. 45537). When Stidham told his inter-
c rogators that he would be willing to submit to a lie de.
tector test, Lt. Eitzman told him that he would be given
that test immediately, and he was thereupon raised off
the floor by a rope attached to the handcuffs on his wrists,
4 The first chaining up lasted fifteen (15) minutes, accord-
: ing to 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 minutes, during which time he
lost consciousness twice and was beaten. Stidham testi-
fied that he suffered an injury to his left arm rendering .
the hand thereof paralyzed in places (App. A, Tr. 453-455,
Cause No. 45537), and defendant further testified that be-
cause of the torture and pain he agreed to write out Ex-
hibits 16 and 16-1, which he said were dictated to him by
Sgt. Little (App. A, Tr. 455, Cause No. 45537). At the
close of this testimony the Court made the following rul-

ing:

St Cele PRS ARP OE

“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
defendant. 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 and outside of the hear-
ing of the jury, that the statement is and should be

23

admissible in evidence, subject to further examina-
tion of witnesses which might be conducted, so we
may proceed with Sgt. Little, as to his identification
before the jury of the statement in eatin, Exhibits
16 and 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 will
you bring the jury back in? (App. A, Tr. 486, Cause
No. 45537).”

Six police officers then testified before the jury and
each identified Exhibits 16 and 16-1 as Stidham’s written
statement and testified that it was voluntarily given
(App. A, Tr. 486-565, Cause No. 45537). Over Stidham’s
counsel’s objection the exhibits were introduced into evi-
dence and read to the jury (App. A, Tr. 569-571, Cause No.
45537). After reading the confession of Stidham, the State
rested its case and the Court denied defendant’s motion for
judgment of acquittal of Murder in the First Degree and
his motion for a reduction of the charge (App. A, Tr. 572-
573, Cause No. 45537).

Stidham’s first witness was Clyde Bridger, State
Registrar of Vital Statistics, who identified Exhibit FF as
a photostat of the Official Certificate of Death of Walter
Lee Donnell, as amended, and also identified Exhibit G as
a photostat of that certificate before its amendment (App.
A, Tr. 574-580, Cause No. 45537). Mr. Bridger testified that
Exhibit G showed the cause of death as being a bullet
wound byygun and that Exhibit FF showed the cause of
death as by multiple injuries, stab wounds in heart and

-lung, brain trauma and crushing injury of skull (App. A,
Tr. 581-582, Cause No. 45537), the witness testified that ihe

24

amendment was made because of an affidavit furnished by
the Cole County Sheriff, the sheriff being the one who
signed the original Certificate of Death (App. A, Tr. 589.
583, Cause No. 45537).

Stidham then took the stand in his own defense and
testified that on the night in question he was in a cell in
the maximum punishment area of the Missouri State
Penitentiary next to the shower, somewhere West of
; Creighton’s cell, and that at about 6:30 p.m. he heard the
q riot commence (App. A, Tr. 592-593, Cause No. 45537),
; Stidham denied threatening Donnell or Creighton at any
: time but recalled that Creighton had often threatened to
; kill him and others in the maximum punishment area (App.
; A, Tr. 593-594, Cause No. 45537). An unknown inmate
{ let him out of his cell and he then went upstairs to B-Hall
3 where he listened to the radio and drank coffee with other
inmates’(App. A, Tr. 596-597). He denied killing Donnell
and denied ever being in the cell of Donnell on the night
in question, stating that: “I am a thief, but I am nota
murderer” (App. A, Tr. 597, Cause No. 45537). Stidham
testified he was questioned repeatedly about the murder
by police officers and denied any implication at all times
(App. A, Tr. 597-600, Cause No. 45537). Stidham then re-
peated 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 (App. A, Tr. 600-604, Cause No.
45537). Stidham further denied being with DeLapp,
Laster and Hoover at any” le on the night in question
(App. A, Tr. 621, Cause No. 45537) 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 (App. A, Tr. 624, 626, Cause No. 45537).

»
i har ih a tet ai HEA

25

Stidham called as his witness M. E. Curtis, the records
clerk at the Federal Medical Center at Springfield, Mis-
souri, to testify generally as to his position, and to hav-
ing been at the Federal Medical Center when Stidham
was processed at that institution on the 30th of September,
1954. Mr. Curtis testified that the card which was filled
out by Stidham indicated that Stidham gave his age as
thirty-four (34) years of age (App. A, Tr. 659, Cause No.
45537), that he had no difficulty taking the fingerprints
of the left hand, and that they were taken with ease (App.
A, Tr. 659-662, Cause No. 45537), that the record did not
indicate any signs of physical abuse, or cuts, other than
the fact that the record indicated that there was a ragged
cut scar between the middle and little fingers on the palm
side of the left hand (App. A, Tr. 659-662, Cause No.
45537). Mr. Curtis indicated the manner in which finger-
prints were taken for the purposes of the record at the
Federal Medical Center, and again testified that he had
no difficulty taking the fingerprints of Mr. Stidham’s left
hand (App. A, Tr. 662-663, Cause No. 45537).

Stidham called Dr. Thomas A. Hatcock, a Doctor at
the U.S. Medical Center at the federal prison at Spring-
field, Missouri, who testified that on the 30th of September,
1954, he made an examination of defendant Stidham which
was limited to subjective complaints (App. A, Tr. 665-666,
No. 45537). Dr. Hatcock further testified that petitioner
was not put through the usual procedure as one would
when becoming an inmate at the Federal Medical Center,
but was tested strictly as to his subjective complaints.
Dr. Hatcock testified that Stidham complained of an in-
jury to his left hand as a result of being suspended by a
rope tied to his hands with his hands at his back. It was
Dr. Hatcock’s further testimony that Stidham complained
of stiffness of the left ring and little fingers and an inability
to forcibly flex and extend those fingers. Dr. Hatcock re-

ips

“ - - oe Re ln he ce 3 Le.
oo een el at ee es RR

aren!

26

vealed that his tests showed an ability to partially flex
and extend those fingers although the function seemed to
be weak and the muscles:seemed to be weak. The doctor's
testimony was that Stidham complained of numbness jn.
volved in those fingers, but not of a complete loss of sen.
sation, but a numb feeling involving the little and ring
fingers (App. A, Tr. 666-667, No. 45537).

When Stidham’s counsel asked the doctor if the doctor
had actually found weakness in flexation, the doctor testj-
fied that the symptoms were subjective and that they
were symptoms that could be present without showing ex-
ternal signs of injury and that the supposed trauma would
be based pretty much on a patient’s story. On the pro-
pounding of a hypothetical question to Dr. Hatcock by
Stidham’s counsel, the doctor testified that the injury to
two fingers of Stidham’s left hand could have been caused
by Stidham’s having been hung from the ceiling as
Stidham had previously testified (App. A, Tr. 669-670, No.
45537).

On cross-examination, Dr. Hatcock testified that he
saw no bruises on Stidham’s left arm, that the information
about Stidham’s ability to flex his left arm and two fingers
of his left hand were from Stidham himself, subjective,
and entirely dependent upon subjective findings.

The jury found Stidham guilty of murder in the first
degree and his punishment was assessed at confinement
in the Missouri State Penitentiary for the rest of his nat-
ural life.

At the hearing held pursuant to Missouri Supreme
Court. Rule 27.26, Stidham testified that wher he was con-
victed of murder he was serving a twenty-five (25) year
sentence for robbery and had served two prior Dyer Act
sentences (App. C, Tr. 18, Cause No. 54674). Stidham fur-

27

ther testified that he was in solitary confinement from
January, 1953, until immediately before the riot, that he
was then moved to death row (App. C, Tr. 19, Cause No.
54674), that he was housed in a five by seven room, with
no furniture, an old toilet and basin, with cockroaches and
rats (App. C, Tr. 20-21, Cause No. 54674). When moved
‘to death row, Stidham was only given a straw tick to sleep
on and while on death row was intermittently beaten by
guards (App. C, Tr. 22-24, Cause No. 54674).

Stidham testified that the riot occurred at 6:00 p.m.
and that he was released from his cell at approximately
8:00 o’clock by a person he identified as Inmate Ford (App.
C, Tr. 24, Cause No. 54674). Stidham’s testimony was that
on being released from his cell he roamed around B Hall,
listened to the radio, drank coffee, and stayed in B Hall
drinking coffee and listening to the radio until the riot
ended. Additionally, petitioner Stidham denied having any-
thing to do with the killing (App. C, Tr. 25, Cause No. 54-
674).

Stidham’s testimony was that after the riot he was re-
turned to his original cell in death row (App. C, Tr. 26,
Cause No, 54674), that the floor was covered with water, and
that officers started immediately questioning him through
the bars. Additionally, he testified that he was threatened,
that he was called names, and that the questioning oc-
curred approximately twenty-five (25) to twenty-eight
(28) times with no physical abuse at that time (App. C,

Tr. 27, Cause No. 54674). /

Stidham testified that at 3:00 a.m. on Septémber 23,
1954, he was awakened by Lt. Barton and questioned for
one and one-half hours (App. C, Tr. 29, Cause No. 54674),
and that he was questioned in the athletic shack on the
lower yard of the Missouri State Penitentiary on the 27th

= September, 1954, by Officers Little, Caldwel!, Ren-

eT ee |

i

28

derer, Overbeck, Billings, and Eitzman (App. C, Tr. 30,
Cause No. 54674). Stidham’s testimony was that this
questioning took approximately an hour, that all: the
officers had riot guns and sidearms. At this time Stidham
testified that he was placed in a chair, hands cuffed be.
hind his back, a belt placed around. his ankles, a heavy
coat put on him and asked about the murder (App. C,
Tr. 31, Cause No. 54674). When he refused to answer,
petitioner testified he was lifted from the floor for about
fifteen (15) minutes and was lifted a second time at which
time he lost consciouness and his arm was paralyzed. After
this treatment, he wrote a statement which was dictated to
him by Sgt. Little (App. C, Tr. 32, Cause No. 54674). Stid-
ham testified that he did not have an attorney, but that
he tried to bribe guards to call an attorney; that after he
wrote the statement he was put in O Hall for three days .
at which time he had nothing to eat, a bare cell with only
slacks to wear (App. C, Tr. 34, Cause No. 54674). Stidham
testified that he wanted an attorney because the officers
had taken him in front of Creighton who couldn’t iden-
tify him, and he wanted a lawyer to talk to Creighton be-
fore someone got to him. Stidham further testified-that
on the 29th of September, 1954, his body was a mass of
bruises and he had lost twenty-five (25) pounds during the
five (5) day period (App. C, Tr. 36, Cause No. 54674).

Stidham further testified that the information by
which he was charged with murder was read to a group of
co-defendants and him, at which time he attempted to get a
lawyer and at that time the judge appointed him an attor-
ney. Stidham testified that from the time of the riot to
arraignment, he had not talked to anyone except Father
Stevens, the Chaplain of the Missouri State Penitentiary.
Stidham further testified that he requested to see Father
Clark, a Catholic priest in the city of Jefferson City, Mis-
souri, who requested petitioner’s present counsel, Mark M.

: +

29

Hennelly, to represent Stidham. At the time»of arraign-
ment Stidham pled not guilty (App. C, Tr. 37-41, Cause No.

54674).

On cross-examination, Mr. Stidham admitted -he had
been placed in solitary confinement on the 18th of January,
1953, for attempted escape, and that he had served ten (10)
years in jail prior to being in the Missouri State Peni-

tentiary.

Stidham called as an adverse witness Officer Billings
of the St. Louis Police Department who testified that he had
searched the records of the St. Louis Police Department
concerning the prison riot in 1954, and that no records were
maintained, and irf@eed other than expense vouchers no
reports had been made. Officer Billings testified that onc
hundred and two (102) police had been on duty three (3)
days, and that twenty-five (25) police had remained on
duty for a week at the Missouri State Penitentiary after the
riot (App. C, Tr. 47-48, Cause No. 54674).

The state offered William Barton, a Missouri State
Highway Patrol Officer at the time of the riot, who testi-
fied that he was in charge of investigating the riot, but that
he did not recall interrogating Mr. Stidham at the time of
the statement. On cross-examination, Mr. Barton testified
that he had. contacted Inmate Creighton, and Inmate
Trout, the two inmate witnesses presented by the state at
the original trial. In an attempt to impeach Mr. Barton's
. testimony, Stidham’s counsel read from the original trial
transcript where Mr. Barton testified that he had in fact
questioned Stidham (App. C, Tr. 56, Cause No. 54674).

The state offered the further testimony of Officer Lit-
tle, a member of the Highway Patrol in 1954 at the time
of the rict. Mr. Little testified that he was involved in the
investigation of the murder and arson during the riot (App.
C, Tr. 59, Cause No. 54674). Little identified the st:.tcinent

30

of Stidham, testifying that he saw Stidham sign the state.
ment but couldn’t recall whether he was in the room the
entire period of time (App. C, Tr. 60, Cause No. 54674),

Officer Little testified that Stidham was not abused,
that he had no complaints of being hungry or tired, that
Stidham made no complaint about the lack of food or water,
that his physical appearance looked normal to him and that
Stidham was not told what to write, that the statement was
Stidham’s and that Stidham was not threatened (App. C,
Tr. 61-62, Cause No. 54674).

Officer Little testified that he did not recall Stidham
being handcuffed in the room, but did remember that he
was wearing a sidearm at the time of the interrogation.
Officer Little testified that the conditions in the peniten-
tiary on the day of the confession were unsettled in that the
entire penitentiary was not secure at the time and thus the
reason uniformed officers were armed. This witness re-
called talking to Creighton and Trout before talking to
Stidham (App. C, Tr. 63-64, Cause No. 54674).

When questioned as to whether Stidham had been
promised anything in return for a statement, Little an-
swered in the negative, and additionally responded that
petitioner had not been struck on the legs with “ballbats,
nor hung from the ceiling” (App. C, Tr. 66-67, Cause
No. 54674).

On cross-examination, Officer Little testified that he
arrived at the penitentiary between 9:30 and 10:00 in the
morning, that Stidham’s statement was taken in the Ath-
letic Building and-that he did not recall talking to Stidham
prior to the statement (App. C, Tr. 67-70, Cause No, 54674).
The officer testified that he believed he recalled Stidham
originally denying guilt, that Stidham was sitting during
the interrogation, everything in the statement was written
by Sudham, and that he was told the format of the state-

31

ment but not the facts (App. C, Tr. 70-75, Cause No. 54674).
This witness specifically testified that Stidham was not
strung up, and specifically testified that Stidham was not
told what to write (App. C, Tr. 79-80, Cause No. 54674).

The state offered the further testimony of Tom
Jenneman, an officer of the police force of St. Louis, Mis-
souri, who identified Stidham in the courtroom, and identi-
fied the statement written by Stidham (App. C, Tr. 81-82,
Cause No. 54674). Officer Jenneman testified that he took
Stidham to the interrogation from which the statement re-
sulted, that there was a bed in the cell, that he didn’t recall
water in the cell, that Stidham did not complain about
the lack of food nor water to him (App. C, Tr. 83-84, Cause
No. 54674). Officer Jenneman testified that no one physi-
cally abused Stidham, that no one threatened Stidham, and
that no one promised him leniency. The witness testified
that he handcuffed Stidham when he was brought down to
interrogation, and that the handcuffs were taken off during
the interrogation. The witness further testified that Stid-
ham was not hung from the ceiling by the handcuffs, and
that Stidham wrote the statement himself (App. C,
Tr. 85-86, Cause No. 54674).

On cross-examination, Officer Jenneman testified that
Stidham was sitting during the interrogation, that to the
best of his recollection the officers all had sidearms, and
that Stidham on being brought to the interrogation had
been handcuffed behind his back (App. C, Tr. 88-89, Cause
No. 54674).

The state offered the further testimony of Elmer Over-
beck, an officer of the St. Louis Police Department, who
identified the statement given by Stidham, and testified
that Stidham wrote it himself. This witness testified that
the statement was given after approximately one-half hour
of questioning, that Stidham was not physically abused,

*

32

was not threatened, was not promised leniency. This
witness testified that the statement was written by Stid-.
ham, that he didn’t believe Stidham was handcuffed during
the interrogation, that Stidham was not struck with a “ball.
bat”, and that Stidham was not hung from the ceiling (App.
C, Tr. 93-94, Cause No. 54674).

The state offered the testimony of Charles Billings, an
officer of the Police Department of the City of St. Louis,
Missouri, who identified the statement given by Stidham,
testified that the statement was written by Stidham, and
testified that Stidham was questioned in the Athletic shed
at the Missouri State Penitentiary (App. C, Tr. 99-101,
Cause No. 54674). Officer Billings testified that Stidham’s
physical condition was normal, that he was not physically

- abused, that he was not threatened, that he was not promised
leniency, and that petitioner wrote the statement himself.
On cross-examination, this witness testified that Stidham
was questioned in the Athletic shed at the Missouri

State Penitentiary, but that the equipment was under

+ lock, and that Stidham had not been hung up and beaten

(App. C, Tr. 104-106, Cause No. 54674).

In rebuttal, Stidham offered further testimony that he
had been hung up and beaten, and as a result of this
beating wrote a statement which was dictated to him
(App. C, Tr. 109, Cause No. 54674). Petitioner testified that
the statement was incorrect in at least three particulars:
(1) the statement put his age at twenty-five (25) when he
actually was twenty-eight (28) years old; (2) the state-
ment said he had three convictions under the Dyer Act,
when he actually had two (2) convictions under the Dyer
Act; and. (3) that he was a resident of Kansas City,
Missouri, while Stidham testified that he had never been
in Kansas City, Missouri.

Bid pcbahie Hin iy teas

at

SAE ata Soi aa EINS, NACA BO pha ioe TE, Risa ah Ebel

33

In his findings of fact and conclusions of law, the state
court judge, pursuant to Missouri Supreme Court Rule
97.26, in discussing the voluntariness issue béfore the
trial judge, stated as follows:

“Movant’s contention that the trial court failed
to find specifically that the confession was voluntary
this Court finds is untenable since the Court found
specifically that the confession was not involuntary.
Webster’s New Collegiate Dictionary, 1961, defines
‘involuntary’ as ‘not voluntary’, ‘not done, given, etc,
willingly by choice, or by act of the will .. .’ Under
the law of this State the Court followed the correct
procedure in determining the issue of voluntariness
of the confession and specifically made a finding rel-
ative thereto and this Court now so finds that the
correct procedure was utilized... .” (App. C, Tr. 124,
Cause No. 54674).

SUMMARY OF ARGUMENT

The Eighth Circuit conclusion that Missouri procedure
at respondent’s trial in 1955 was not geared so that the
trial court made an initial determination on voluntariness
was premised on inadequate consideration of prior Mis-
souri authority.

Missouri procedure, on the determination of volun-
tariness of a confession, has consistently provided: (1)
a hearing outside presence of jury; (2) the hearing is to
test the competency of evidence; (3) the trial court is not
compelled on presentation of conflicting evidence to sub-
mit confession to jury; (4) state carries the burden of non-
persuasion on issue of voluntariness; (5) voluntariness
can, and will, be reviewed on appeal, and thus Missouri
procedure is fundamentally fair within the Fourteenth
Amendment to the United States Constitution.

34

Finding by Missouri state trial court in 1955, after
hearing outside presence of jury, that confessixn was “not
involuntary as matter of law” was a sufficient finding
under Simms v. Georgia. :

Three findings appear of record holding the confession
voluntary: (1) original determination in 1955; (2) find-
ing by State post-conviction court; (3) finding of Supreme
Court of Missouri on appeal.

Jackson v. Denno indicates voluntariness finding need
not be made at time of trial, thus, the finding on respond-
ent’s petition seeking collateral relief, and on appeal to
Missouri Supreme Court, both having been post-Jackson
are adequate findings of voluntariness.

Procunier v. Atchley must be extended to hold that pe- 2

titioner in habeas corpus is not entitle@ to a new hearing
on the coercion aspect of his confession where the only
defect pointed to is the form and not the substance of a
state court’s ruling on competency of évidence for jury
consideration.

Constitutional decisions of this court should not be
given retroactive application in habeas corpus cases.

The Eighth Circuit was without jurisdiction to con-
sider respondent’s successive habeas corpus application in
that, it had once refused to reinstate respondent’s appeal
which he had initially dismissed.

35

ARGUMENT
I.

The Eighth Circuit, hearing a case in habeas corpus,
incorrectly interpreted Missouri law when it held that the
procedure used at state trial in Missouri in 1955 for test-
ing the competency of a confession, and its subsequent
submission to the jury did not meet the minimal standards
of Jackson v. Denno. .

,
%

The decision of the court below incorrectly applies
Jackson v. Denno, 378 U.S, 368 (1964) to Missouri law and
demands reversal.

In Jackson v. Denno this court held that the New York
procedure did not fairly determine the issue of voluntari-
ness. Under the New York rule the trial judge had a pre-
liminary hearing regarding the confession and could ex-
clude a confession only if no circumstances existed which
would make the confession involuntary. Where facts
were disputed, or where reasonable men could differ over
the inferences to be drawn from these facts the court in
New York had to receive the confession and leave to the
jury, after proper instructions, both the initial determi-
nation of voluntariness and the ultimate determination of
truthfulness.

In Jackson, supra, this court reserved for determi-
nation the question of whether Missouri procedure was an
approved method for determining voluntariness. Jack-
son v. Denno, supra, at page 380, pages 396-399. There
the court held that it was unclear, from the cases then
before the court, whether the procedures of fourteen
separate states correctly determined voluntariness. The
Eighth Circuit Court of Appeals has now incorrectly de-
termined that the Missouri procedure does not meet the
Jackson, supra, standard.

diate ei RS

36

In Stidham v. Swenson (8th Cir. 1971) 443 F.2d 1327,
the Eighth Circuit remanded to the United States Dis-
trict Court for the Western District of Missouri a habeas
corpus proceediing for further proceedings consistent with
Sigler v. Parker, 396 U.S. 482 (1970). After discussing
the district couirt’s opinion, the Eighth Circuit states:

“We beliewe that the district court’s analysis is in-
correct. 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
Missouri caase law convinces us that a trial court had
and frequently used the right to submit the question
of veluntairiness to the jury without a prior deter-
mination tthat the confession was voluntary. .. Our
analysis off the record of Stidham’s trial leads us to
conclude t:hat the trial judge in this case submitted
the voluntiariness issue to the jury without making a
prior factwal determination that the confession was
voluntary. His finding that the confession was not
‘involuntairy as a matter of law,’ was not; under the
then existiing Missouri law, the same as finding that
it was voluntary.” (443 F.2d 1329, 1330).

This was done irrespective of the fact that the Mis-
souri 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 Massachussetts 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 the voluntariness of a confession. In Jackson v.
Denno, 378 U.S. 368, footnote 7 at page 377, 84 S.Ct.
1774, at page 1781, 12 L.Ed.2d 908, states that: “‘Un-

37

der the New York rule the judge is not required to
exclude the jury while he hears evidence as to vol-
untariness and perhaps is not allowed to do so.’ The
New York practice was condemned in Jackson v.
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 im-
pliedly approved in Jackson v. Denno. See also Com-
monwealth v. Marshall, 338 Mass. 460, 461-462, 155
N.E.2d 798, 800. The Missouri practice contemplates
a preliminary 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 voluntari-
ness of a confession out of the presence of the jury
and a 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 determines the probative value of the con-
fession under the instructions of the court which di-
rect the jury to disregard it entirely if the jury finds
the confession was not voluntarily made. State v.
Deyo, Mo., 387 S.W.2d 561, 546, 565. [5, 6]; State v.
Howard, Mo., 383 S.W.2d 701, 702 [1].” (Id. at 114).

A study of representative Missouri cases makes peti-
tioner more reluctant, than was the Eighth Circuit, to
conclude that Missouri procedure was improper under
) Jackson, supra. Because of the nature of the reading of
| Missouri cases by the Eighth Circuit, petitioner is com-
pelled to extensively deal with Missouri case law. That
consideration indicates an unbroken one hundred and
forty-two year common thread of procedure.

a aa epee

38

The Missouri procedure had its inception in Hector
(A Slave) v. The State (Mo. Sup. 1829) 2 Mo. 166 where
the court states:

“Whether a confession is sufficiently free and volun-
tary to be competent: testimony is a matter of law to
be decided by the court and not by the jury.” (2 Mo.
168).

In State v. Patterson (Mo. Sup. 1881) 73 Mo. 695, the
court stated:

“It belongs alone, as was decided at an early date in
this State, to the judicial province to determine as a
preliminary question whether a confession was made
with that degree of freedom which ought to occasion
its admission into evidence. .. .” (73 Mo. 706).

The court further explained its position in State y.
Hopkirk (Mo. Sup. 1884) 84 Mo. 278, by stating:

“The preliminary question of the admissibility of con-
fessions, is one which belongs alone to the trial courts,
and unless it be made plain that error manifest has
been committed in this regard, in deciding the ques-
tion of fact as to whether those confessions were made
in circumstances which forbid their being received in
evidence and going to the jury, the admission of such
confession cannot: be held reversible error by this
court... .” (84 Mo. 283-284).

At the turn of the century, the Missouri Supreme
Court reaffirmed this principle in State v. McKenzie (Mo.
Sup. 1898) 45 S.W. 1117, by stating:

“The learned circuit court pursued the correct and
approved practice, in first hearing the circumstances

1. To like effect see: State v. Jones (Mo. Sup. 1874) 54 Mo.
478; State v. Brown (Mo. Sup. 1881) 73 Mo. 631.

39

attending the confession. It was the duty of the court
to determine, as a preliminary question, whether the
confession was voluntary, before permitting it to go
to the jury... Having admitted it as evidence, the
court correctly ruled that all the circumstances un-
der which it was made should be considered by the
jury, under appropriate instructions. . . .” (45 S.W.
1119).

The court made quite clear in State v. Wooley (Mo.
Sup. 1908) 115 S.W. 417, that the question for the judge
was that of competency of evidence, when it stated:

“The record discloses that the court proceeded with
great care and caution to make the usual preliminary
examination as to the admissibility of the confessions
made by the defendant. The jury was ordered to re-
tire from the courtroom in charge of the sheriff, and
the preliminary examination as to the competency of
the confession was carefully considered. Witnesses
were introduced as to the circumstances surrounding
the defendant at the time he made the statements;
what occurred between the defendant and the offi-
cers in charge of him at the time; and after hearing
such testimony the court ruled that the confession
was corapetent.. .” (115 S.W. 437).

That the procedure implicitly contemplates a determi-
nation of law that the confession is voluntary was made
clear in State v. Wilson (Mo. Sup. 1909) 122 S.W. °671,
where it is held:

“The trial court excluded the jury, and made a pre-
liminary examination upon the question of the in-
ducements held out to this defendant to make the
confessions, and upon such examination the court
ruled that the confessions were voluntary and ad-
missible. . . .” (122 S.W. 675).

40

In reliance upon the foregoing cases, the court stated
in State v. Tharp (Mo. Sup. 1933) 64 S.W.2d 249:

“All the witnesses for the state say the defendant was
advised he could have counsel and that whatever he
said could be used against him. In these circun-
stances, certainly the trial court did not err in leay-
ing it to the jury to say whether the written confession
then made was voluntary or not. While it is the rule
that where a confession has been obtained under cir-
cumstances rendering it involuntary and inadmissi-
ble, a strong presumption exists that any subsequent
confession arose from a continuance of the same prior
improper influences, and while the presumption must
& be overcome before the subsequent confession can be
received in evidence .. . yet we think the proof here
; was amply sufficient to make it a jury issue whether
the confession in the prosecuting attorney’s office
was voluntary and independent of any alleged influ-
ence exerted on the boys in Trenton the preceding
evening.” (64 S.W.2d 255-256).

In a case involving a unique trial tactic, State v. Gibil-
terra (Mo. Sup. 1938) 116 S.W.2d 88, the court noted that
the ordinary procedure of conducting a preliminary hear-
ing outside the presence of the jury had not been used
by defense counsel but that counsel had allowed the

_ state’s witnesses to testify without objection as to a con-
fession, and did not object to any statements until the
confession was itself offered into evidence. Counsel fur-
ther refused to produce any testimony to substantiate his
objection stating that he would do so in open court before
the jury. On such facts, the trial court found the con-
fession competent and admitted it for consideration by
the jury. In discussing the particular case under con-
sideration, and discussing the general mixed question of

’

i" , Re. it y.

41

law and fact involved in the preliminary hearing, the
court stated:

“Ordinarily, such inquiries are conducted by the
court in the absence of the jury. Some decisions
hold the court has the right thereat to determine
(necessarily by weighing the evidence) whether a
confession should be submitted to the jury.’ Others
appear to hold that where the evidence is substan-
tial and conflicting, the question should be referred
to the jury.” A few of these cases say this is true
where the state has made a prima facie showing. . .
An extensive annotation on the question will be found
in 85 A.L.R. 870, 901, where Missouri is classed as a
‘doubtful jurisdiction.’

“The rule in this state to be gathered from the
cases cited in the margin and others is that if the
defendant objects to the admission of the confession
on the ground that it was involuntary, and requests a
preliminary hearing out of the presence of the jury,
the same should be granted. At that hearing if the
evidence is conflicting and substantial the court may
determine the mixed question of law and fact by
weighing the evidence; and if convinced one way or
the other should rule accordingly. The state carries
the burden of proof at such preliminary hearings.

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

2. It should be noted that the conviction in State v. Gibil-
terra, supra, was reversed for the failure of the trial court to
instruct on the voluntariness of the appellant’s confessicn. 116
8.W.2d at 95.

A

42

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 cop.
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. .. .” (116 S.W.24
93, emphasis and footnote the court’s ) .”

In reversing a conviction for forcible rape the court
again had occasion to consider the proper use, and the
function of the hearing held outside the presence of the
jury to test voluntariness. In State v. Bradford (Mo. Sup.
1953) 262 S.W.2d 584, the court stated the issue before
the court as follows:

“The decisive issues upon this review involve the
questions whether or not defendant’s verbal admis-
sions of his guilt, his written confession, and testi-
mony of defendant’s statements and conduct during
a so-called ‘re-enactment’ tour to the neighborhood of
Cousins home were voluntary and consequently ad-
missible as evidence against him, or whether they
were, as a matter of law, involuntary and inadmissi-
ble, or were inadmissible because obtained in manner
violative of the Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States.”
(262 S.W.2d 586).

In discussing the general theory as to submissibility
and after restating that the state has the ultimate burden
of non-persuasion before the trial court, the court stated:

“Furthermore it is observed that, after a_prelimi-
nary hearing. without the presence of the jury on the
issue, a trial court is not obliged to submit the issue
of the ‘voluntariness’ of a confession to a jury merely

43

because there is substantial evidence tending to show
the confession was voluntary however much the evi-
dence of its voluntary character is outweighed by the
evidence to the contrary. On the other hand, when
there is substantial conflicting evidence and the evi-
dence is close, it is better to refer the issue to the
jury than to exclude the confession upon the pre-
liminary hearing. Then ‘the evidence introduced be-
fore the jury upon the issue of voluntariness of the
confession may also be considered by the trial court
(and by the appellate court upon review) together
with the evidence introduced at the preliminary
hearing, and the confession excluded if it is found,
from all the evidence introduced upon the issue, that
the confession was involuntary. . . .” (262 S.W.2d
586).

In affirming the conviction of one of respondent Stid-
ham’s co-defendants, the Missouri Supreme Court again
had occasion -to discuss the question of voluntariness. In
State v. Laster (Mo. Sup. 1956) 293 S.W.2d 300, the facts
show that when the state indicated that defendant Las-
ter’s confession was to be offered the court conducted a
hearing outside the presence of the jury on the confes-
sion. The state presented evidence, but the defendant
presented no evidence at the preliminary hearing. The
court as to the voluntariness issue stated:

“Since the defendant chose not to introduce any
evidence at the preliminary hearing, and the state
made a prima facie case on the voluntary nature of |
the confession, the court necessarily ruled it admis-
sible. . . In some instances our courts considered
also the evidence adduced before the jury in making
a final ruling on the admissibility of a confession. . .
We rule the confession admissible, however, on the

44

broader ground that on all the evidence there was
no showing sufficiently strong to convince the court
conclusively, or as a matter of law, .that the confes.
sion was involuntary.. The question was one for the
jury, and an adequate instruction was given on this
subject... Under our system of jurisprudence it js
generally left to the jury to determine whether a con-
fession was voluntary, unless the contrary appears
so conclusively that the confession must be held in..
voluntary as a matter of law... .” (293 S.W.2d 303.

304). . } N

As the Eighth Circuit noted the issue of/ the volun-
tariness of respondent Stidham’s confession was initially
discussed in State-v. Stidham (Mo. Sup. 195 ) 305 S.W.2d
7. In that case the court stated: .

“There is no merit in defendant’s contention that his
written confession was coerced and involuntary and
was admitted into evidence before the state estab-
lished that it had been voluntarily given. The court
conducted a full preliminary hearing on the issue,
-found the issue was for the jury, and later, after
hearing the evidence before the jury, submitted the
issue to the jury for determination. The testimony
was to like effect at each hearing. Two members of
the State Highway Patrol and four members of the
St. Louis Metropolitan Police Force, present at the
time defendant claimed physical violence occurred,
testified that no promises had been given, or physical
violence, duress, threats or abuse was offered to de
fendant, categorically denying defendant’s testimony.
On the conflicting showing the issue of the volun-

3. Compare as to burden of producing evidence: Lego v.
Toomey, ........ US. 30 L.Ed.2d 618 (1972); and State v.
Nolan ( (Mo. Sup. 1968) 423 S.W.2d 815.

‘ oer RES eee
i ace Auk SB ES SONI ER aE é

45

tariness of the confession was for jury.” (305 S.W.2d
10).

In a case, later in time, dealing with this issue of
voluntariness, the Supreme Court of Missouri in. State v.
Bridges (Mo. Sup. 1961) 349 S.W.2d 214, stated:

“Prior to the admission of the confessions in evi-
dence, an interlocutory hearing was held out of the
presence of the jury. The trial court ruled that the
confessions were not, as a matter of law, inadmissi-
ble [.] The fact issue was submitted to the jury ‘yn-
der an instruction that the confessions should be
given such probative value as the jury believed they
deserved if the jury found that the confessions were
voluntarily given.” (349 S.W.2d 217). -

From the foregoing cases, petitioner submits that sev-
eral constants appear:

A 7)

1. The Missouri procedure contemplates a pre-
liminary, or voir dire hearing outside the presence
of the jury.

2. At which hearing, the state has the .burden
of non persuasion.

3. At the closing of the hearing outside the pres-
ence of the jury, the court is presented with two
alternatives:

A. The court can find the confession involun-
tary and withhold it from the jury; or, the court
may find the confession competent evidence for the
jury’s consideration and instruct as to the jury’s
duty for finding voluntariness and determining
credibility, and weight to be given the testimony.’

4. In Missouri, the court may not take the ultimate vol-
untariness issue from the jury as this is a fatal comment on the
evidence and reversible error. State v. Gibilterra, 116 S.W.2d at
95. Procedure of non-comment by judge to jur; impiicitly
approved: Lego v. Toomey, 30 L.Ed.2d at 625.

;
:
4
‘
é
i
i
4

46

4. A court may make its determination of ip.
voluntariness at three points:

A. After the hearing outside the presence of
the jury;

B. After hearing evidence before the jury,
and before submission to the jury;

C. By the Supreme Court on appeal.’

The question then becomes what does submission of
the confession to a jury in Missouri mean. In light of the
foregoing catalogifig of cases, and the conclusions adduced
therefrom, petitioner would submit that the submission
of the confession to a jury in Missouri is an implicit state
ment by the judgethat,.“‘I find this competent evidence”

To be competent evidence in Missouri means that the
confession may not be obtained by improper inducements,
such as promise of immunity or reward, nor may physical
or psychological coercion be inflicted.’

Petitioner submits that this Missouri determination
for submissibility comports with the fundamental fair-
ness doctrine of the Fourteenth Amendment to the United
States Constitution and was not struck down in Jackson
v. Denno, supra.

5. That this possibility is not a-hollow right, see: State v.
Bradford, 262 S.W.2d at 590; compare: Boulden v. Holman, 394
U.S. 478 (1969).

6. The determination is not unlike that as to the general
competency of a witness to testify, i.e., testimony of Creighton
(App. A, Tr. 241-275, Cause No. 45537). A similar implicit find-
ing is also made by a judge when he denies a judgment of ac-
quittal thus finding enough evidence to go to the jury.

7. State v. Wooley (Mo. Sup. 1908) 115 S.W.2d 417; State
v. Bradford (Mo. Sup. 1953) 262 S.W.2d 584; and State v. Glenn
(Mo. Sup. 1968) 429 S.W.2d 225. Compare: Rogers v. Richmond,
365 U.S. 534 (1961).

w

47

Had the Eighth Circuit been correct in its.theory, the
logical extension of that theory would be that had the
judge, after hearing evidence outside the presence of the
jury as to voluntariness in Stidham’s trial in 1955 said,
“I find this confession voluntary as a matter of law’’, the
Eighth Circuit would have been compelled to hold that
the trial court had not made a sufficient voluntariness
finding pursuant to Jackson v. Denno, supra. Such rea-
soning merits reversal.

II.

The Eighth Circuit, hearing a case in habeas corpus,
incorrectly applied Simms v. Georgia, 385 U.S. 538, by hold-
ing that the finding by the circuit court of Butler County,
Missouri, in a state criminal trial in 1955, that a confession
was not involuntary as a matter of law did not comply with
Jackson v. Denno, 378 U.S. 268.

The Eighth Circuit has incorrectly applied Simms v.
Georgia, 385 U.S. 538 (1967).

In Jackson v. Denno, this court held that in a criminal
case a defendant is deprived of due process if, either in
whole or in part, the conviction is based upon an invol-
untary confession without regard to its truth. Additionally,
the court made clear that a further standard was required,
and the court couched that standard in the following
terms:

“Equally clear is the defendant’s constitutional right
at some stage in the proceedings to object to use of
the confession and to have a fair hearing and a reli-
able determination on the issue of voluntariness, a
determination uninfluenced by the truth or falsity of
the confession.” (Jackson v. Denno, 378 U.S. 376-377 ).

48

In Simms v. Georgia, the court held that the stand.
ard as to whether an appellate court could determine
whether Jackson v. Denno, supra, had been complied with
‘was a practical test. That test being, not whether cer.
tain talismanic words appeared on the record, but whether
the record made by the trial court made clear that it had
considered, and ruled upon the defendant’s objection that
the confession was involuntarily coerced. Simms y.
Georgia, 385 U.S. 544.

The test then is two-pronged:

1. At some point in the proceedings a hearing on
voluntariness must be had on defendant’s request.

2. The judicial determination that the confession is
voluntary must appear on the record.

Such being the test, petitioner would submit that ir-
respective as to what Missouri law may or may not have
been as to voluntariness of confessions at the time of Stid-
ham’s trial in 1955, on the historical record presented to
this court the Circuit Court of Butler County, Missouri,
did make a determination concerning the voluntariness of
respondent Stidham’s confession and that determination
complied with the standards of Jackson v. Denno, supra.

The record indicates that on the calling of the first
state’s witness who was to offer testimony as to respond-
ent Stidham’s oral statement and written confession, coun-
sel for Stidham requested that a hearing be held outside
of the presence of the jury. Such a hearing was had, cov-
ering eighty-eight pages of the transcript (App. A, Tr.
398-486, Cause No. 45537). By motion, defense counsel
requested:

“MR. HENNELLY: At this point, if Your Honor
please, the defendant moves the court to conduct a

49

preliminary examination and asks the court to in-
quire into the voluntariness of the statement, and to
determine whether the statement was given volun-
tarily, either the oral or the written statement, and
we ask that that hearing be conducted outside the
hearing of the jury.

“THE COURT: And the defendant proposes to show
by cross-examination, or by its own testimony the
involuntariness of the statement?

“MR. HENNELLY: Yes.

“THE COURT: The request will be granted... .”
(App. A, Tr. 398, Cause No. 45537).

At the end of this preliminary voir dire hearing, and
after hearing nine witnesses, including all the officers in-
volved in the taking of the confession, and the defendant
himself, the court ruled, after the close of defendant Stid-
ham’s evidence on the issue:

“MR. HENNELLY: That is all’ “That is the defend-
ant’s motion, Your Honor.

“THE COURT: Now, at the conclusion of the hear-
ing held outside of the hearing of the jury, the request
by the defendant for a hearing upon the statement
which has been identified as—

“MR. RILEY: 16 and 16-1.°

“THE COURT: 16 and 16-1, it is the court’s opinion
that the matters concerning the statements should be
offered in the presence of the jury, subject of course
to any attacks as to its credibility by the defendant.
The defendant has of course the right to proceed to
challenge the voluntariness of the statement and con-
fession, even before the jury, but it is the, court’s
opinion that upon the evidence that has been offered

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50

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 pro-
ceed with Sgt. Little, as to his identification before
the jury of the statement in question, Exhibit 16 and
16-1.” (App. A, Tr. 485-486, Cause No. 45537; Em-
phasis added).

Petitioner would submit that the state trial court has
quite clearly, and “with unmistakable clarity” determined
the voluntariness of the confession on the record pursu-
ant to the standards in Jackson v. Denno, supra. Were
any doubt to exist that the judge has ruled as a question
of law that the confession is not involuntary, that doubt
would be erased by reference to the transcript where
counsel for Stidham’ immediately following the judge's
ruling set out above, asked the court:

“MR. HENNELLY: In other words, the court is over-
ruling my motion, and requests that the court to hold
as a matter of law, that these statements were invol-
untary, is that right?

“THE COURT: That is right. Mr. Sheriff, will you.
bring the jury back in?” (App. A, Tr. 486, Cause No.
45537).

As to this point, petitioner would submit that the
trial judge, in 1955, did not abrogate his function under
Missouri law to initially determine voluntariness and can
but conclude that the standards in Jackson v. Denno, su-
pra, and Simms v. Georgia, supra, have been met.

On the original appeal of this cause to the Supreme
Court of Missouri that court held:

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51

“There is no merit in defendant’s contention that his
written confession was coerced and involuntary and
was admitted in evidence before the state established |
that it. had been voluntarily given. The court con-
ducted a full preliminary hearing on the issue, found
the issue was for the jury, and later, after hearing the
evidence before the jury, submitted the issue to the
jury for determination.” (State v. Stidham (Mo. Sup.
1957) 305 S.W.2d 10).

Seven years after respondent Stidham’s conviction
was confirmed on appeal by the Supreme Court of Mis-
souri he filed a motion to vacate judgment and sentence
pursuant to Missouri Supreme Court Rule 27.26, V.A.M.R.,
in the Circuit Court of Butler County, Missouri. That
motion to vacate was denied without an evidentiary hear-

ing, and a second motion filed pursuant to Missouri Su- -
preme Court Rule 27.26, supra, was also denied without

an evidentiary hearing. On appeal of these denials, to
the Supreme Court of Missouri, the court reversed and

‘remanded in State v. Stidham (Mo. Sup. en banc 1967)

415 S.W.2d 297, for an evidentiary hearing with appointed

counsel.

e
After a full evidentiary hearing (App. C., Cause No.
54674) before the Circuit Court for the City of St. Louis,
Missouri, petitioner appealed, and pursuant to Swenson
v. Bosler, 386 U.S. 258 (1967), petitioner was given a re-
instated direct appeal and consolidated appeal from de-
nial of his motion to vacate sentence and judgment.

The state hearing court, pursuant to Missouri Su-
preme Court Rule 27.26, supra, after a full evidentiary
hearing, at which time respondent Stidham presented no
new evidence, ruled on the voluntariness issue as follows:

s

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2 ;: 52
“Movant’s contention that the trial court failed to
find specifically that the confession was voluntary
this court finds is untenable since the court found
specifically that the confession was not involuntary.
Webster’s New Collegiate Dictionary, 1961, defines
‘involuntary’ as ‘not voluntary’, ‘not done, given, etc.
willingly or by choice, or by act of the will .. °
Under the law of this state, the court followed the
correct procedure in determining the issue of volun-
tariness of the confession and specifically made a
finding relative thereto and this court now so finds
that the correct procedure was utilized. . . .” (App.
C, Tr. 124, Cause No. 54674).

On appeal, the Supreme Court of Missouri in State y.
Stidham (Mo. Sup. 1970) 449 S.W.2d 634, approved the
findings of fact and conclusions of law of the judge in
the 27.26 hearing, and also made its determination that
the confession was voluntary:

“And finally, the court found, as had the previous
court, that the oral and written confessions were vol-
untary and, needless to add, the latter finding is over-
whelmingly supported in procedure and factually the
cause meets all the requirements of the federal cases
and there has been no invasion of due process.” (State
v. Stidham, 449 S.W.2d 644) .®

Three voluntariness findings, then, appear of record:

1. The initial voluntariness finding by the state trial
court in 1955;

8. It should be noted that the opinion of the Eighth Circuit
in this cause fails to indicate that any consideration was given
to the finding .by the judge pursuant to Missouri Supreme Court
Rule 27.26, or the finding by the Supreme Court on appeal.

53

2. Two post-Jackson v. Denno determinations;

(a) The finding by the Missouri state trial court
pursuant to Missouri Supreme Court Rule
27.26;

(b) The finding by the Missouri Supreme Court
on appeal.

The question then becomes at what point in the pro-
ceeding must a Jackson v. Denno, supra, determination be
made. In Jackson, supra, the court merely announced
that a defendant had a constitutional right “. . . (a)t
some stage in the proceedings to object to the use of the
confession and to have a fair hearing and a reliable de-
termination on the issue of voluntariness. .. .” (378 US.
376-377). By reference to the disposition of the case in
Jackson, supra, it can be seen that this court determined
that the proper procedure on remand would be a proper
determination by the state court, which did not neces-
sarily include a new trial:

“It does not follow, however, that Jackson is auto-
matically entitled to a complete new trial including
a retrial of the issue of guilt or innocence. Jackson’s
position before the District Court, and here, is that
the issue of his confession should not have been de-
cided by the convicting jury but should have been
determined in the proceeding separate and apart of
the body trying guilt or innocence. So far we agree
and hold that he is entitled to such a hearing in the
state court. But if at the conclusion of such an evi-
dentiary hearing in the state court on the coercion
issue, it is determined that Jackson’s confession was
voluntarily given, admissible in evidence, and prop-
erly to be considered by the jury, we see no consti-
tutional necessity at that point for proceeding with a

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new trial, for Jackson has already been tried by the
jury with the confession placed before it and has been
found guilty.” (Jackson v. Denno, 378 U.S. 394).

Assuming, arguendo but not conceding, that “not in-
voluntary” does not mean “voluntary”, in this case there
have been two post-Jackson, supra, determinations as to
voluntariness; as such the Jackson standard has been met,
the Eighth Circuit must be reversed.®

The court has recently reaffirmed this position as to
the correct procedure on remand in Lego v. Toomey,
Us. =... , 30 L.Ed.2d 618 (1972).

woe eweee

In Lego, this court impliedly approves certain aspects
of the Missouri procedure concerning the amount and
quality of the evidence to convince a judge that a con-
fession is voluntary (30 L.Ed. 621 [Footnote 1]). Addi-
tionally, Missouri law contemplates that the state carries
the burden of proving that any confession it offers was
not involuntarily obtained, and more than substantial evi-
dence is required to justify finding the confession volun-
tary.” Such factors convince petitioner that the trial
court in the instant case made a substantial finding of
record that the confession was voluntary.

It appears, then, that after a consideration of the fore-
going principles from Jackson, supra, and Lego, supra,
the Eighth Circuit has done little more than engage in a
Lewis Carroll exercise of words meaning what I say they
mean, when it holds not involuntary does not mean vol-
untary.

9. Indeed, it would appear that even this court may enter
a finding on the voluntariness of a confession on review. Boulden
v. Holman, 394 U.S. 478, 480.

10. State v. Gibilterra, 116 S.W.2d 93. As to the Missouri
cases discussing a “prima facie” rule, See State v. Laster, 293
S.W.2d 303, and cases cited therein.

55

Consideration should also be given to Procunier V.
Atchley, 400 U.S. 446 (1971). In that case, discussing
what criteria entitled a petitioner for habeas corpus to a
new hearing of the voluntariness issue, this court stated:

“But those decisions did not establish that an appli-
cant for federal habeas corpus is entitled to a new
hearing on the voluntariness issue, in either the fed-
eral or state courts, merely because he can point to
shortcomings in the procedures used to decide the
issue of voluntariness in the state courts. Our deci-
sions make clear that he must also show that his ver-
sion of events is true, would require the conclusion
that his confession was involuntary.”

Petitioner would submit that to be consistent with
Townsend v. Sain, 372 U.S. 293 (1963), and the codifica-
tion of these habeas corpus criteria in Title 28, U.S.C.A.,
Section 2254, the court must extend its reasoning in Pro-
cunier one step further.

As Townsend v. Sain, supra, and Title 28, U.S.C.A.,
Section 2254, indicate, a federal court may not properly
exercise its power in habeas corpus to resolve factual
situation absent one of the following findings:

(1) That the merits of the factual dispute have not
been resolved in state court;

(2) That the fact finding procedure afforded by the
state is not adequate to afford a full and fair hearing;

(3) That material facts have not been developed.
No finding of record involving any of the three forego-
ing tests may be found in ‘ae Eighth Circuit’s opinion."

11. Petitioner notes that the Eighth Circuit commented
“.,. (t)hat several of Stidham’s allegations have not been con-
tradicted in the record.” (443 F.2d 1331). Petitioner assumes
that it is not the law that rebuttal evidence must be offered to
every issue pro and con jn a given case before credibility may be
determined.

56

Petitioner must therefore assume that the procedure
which the trial court used in the instant case for eliciting
the facts of coercion, were adequate to afford a full and
fair hearing, that the material facts as to coercion were
- developed, and that the merits of the factual dispute as
to coer@ion was resolved. Such being the case, petitioner
would submit that this court should hold that an appli-
cant for federal habeas corpus is not entitled to a new
hearing on the coercion aspect of his confession, where
he can point to no defect in the manner in which the evi-
dence before the state trial court was gathered, but points
only to a defect in the court’s ruling on the competency
of evidence. Clearly, the converse to the rule announced
in Procunier, supra, is required.

The theory has been advanced that constitutional de-
cisions of this court should be given retroactive applica-
tion to all non-final convictions pending at the time of
this court’s holding, but that those seeking habeas corpus
relief should generally be treated according to the law
prevailing at the time of their conviction. Mackey v. U.S,
401 U.S. 667 (1971) concurring opinion of Mr. Justice
Harlan.

If the Eighth Circuit opinion is correct, and petitioner
submits that it is not, the issue noted by Mr. Justice Har-
lan as not having been previously presented to this court
(Mackey v. U. S., 401 U.S. 686) is here squarely pre-
sented.

Simply put, habeas corpus has not traditionally, and
should not today, be a forum for the exercise of federal
judicial power to apply, collaterally, standards not viable
at the time of the original appellate review to this court.
Common sense demands finality. It is a concept that the
most litigious of prisoner piecemeal adjudicators can un-

o7

derstand. Mr. Justice Harlan is right. Mackey v. U. S.,
supra. Mr. Justice Harlan’s philosophy should be adopted
by this court.’*

Mr. Justice Harlan’s principle of retrospectivity is es-
pecially applicable when view is given to the facts in the
instant case. =

Seventeen years after trial, at which the defendant
had a hearing and ruling on the very point before this
court, the Eighth Circuit has, on latent reflection, after
multiple reviews by the state courts, and successive peti-
tions before the federal district court, said in effect: ‘In
1971, we think the standard announced in 1964, should
have been applicable in 1955.” If such states the law in
habeas corpus, a new position is required.

Finally, petitioner would note the unusual circum-
stances by which respondent Stidham’s appeal reached the
Eighth Circuit after successive filings of petitions for ha-
beas 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 appeals. The Eighth Circuit denied Stidham’s
motion to reinstate, but the United States District Court

12. Bator, Finality in Criminal Law and Habeas Corpus for

State Prisoners, 76 Harv. L. Rev. 441 (1963): Friendly, Is Inno-
‘ence Irrelevant? Collateral Attacks on Criminal Judgements.
38 U. Chi. L. Rev. 142 (1970). Contra: Adams v. Illinois,
US. . 40 L.W. 4255, 4258 (1972), Sven So opinion of Mr.
Justice Douglas: Schwartz, Retroactivity, eliability in Due
Process: A Reply to Professor Mishkin, 38 U. Chi. L. Rev. 719
(1966).

58

for the Western District of Missouri entertained respond-
ent’s second petition and in reliance upon its prior order
denied issuance of the writ, and considered an additional
grounds, that of preliminary hearing, in light of Coleman
v. Alabama, 399 U.S. 1 (1970).

Petitioner recognizes that res judicata is not a general
rule applied in habeas corpus, but petitioner would sub-
mit that there are two issues on this set of facts: (1)
The Eighth Circuit was without jurisdiction to entertain
the second petition, except perhaps as to the Coleman y.
Alabama, supra, claim; (2) the Eighth Circuit abused its
discretion in entertaining the successive petition.

As to the Eighth Circuit’s jurisdiction, petitioner
would submit that the failure to reinstate respondent Stid-
ham’s initial appeal acted as a denial of application for
certificate of probable cause pursuant to Rule 22(b),
F.R.App.P., Stidham had his day in court and thus the
court was without jurisdiction to consider a second ap-
peal.

Petitioner concludes that an abuse of the habeas
corpus procedure is seen by the successive nature of re-
spondent’s applications, and would particularly note the
dismissal of this cause originally before the Eighth Cir-
cuit, and the subsequent second filing on the exact issues
before the District Court. Petitioner would conclude that
pursuant to Title 28, Section 2254(b); Salinger v. Loisel,
265 U.S. 224 (1924); Smith v. Yeager, 393 U.S. 122 (1968);
and Sanders v. U. S., 373 U.S. 1 (1963) the Eighth Cir-
cuit abused its discretion in allowing the docketing of
petitioner’s second appeal in this case.

59

CONCLUSION

For the reasons stated it is respectfully submitted
that the judgment of the court below must be reversed.

JOHN C. DANFORTH
Attorney General

KENNETH M. ROMINES
Assistant Attorney General
Supreme Court Building
Jefferson City, Missouri 65101
314—636-7131

Attorneys for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0078%3A5. Public record. Not legal advice.