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WOODS v. CLUSEN
794 F.2d 293 (1986)
Burdette WOODS, Petitioner-Appellee,
v.
Donald CLUSEN, Respondent-Appellant.
No. 85-1618.
United States Court of Appeals, Seventh Circuit.
Argued November 1, 1985.
Decided June 25, 1986.
William J. Tyroler, Wis. Public Defender, Milwaukee, Wis., Jack E. Schairer, Asst. Public Defender, Madison, Wis., for petitioner-appellee.
Sally Wellman, Asst. Atty. Gen., Dept. of Justice, Madison, Wis., for respondent-appellant.
Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and CAMPBELL, Senior District Judge.*
WILLIAM J. CAMPBELL, Senior District Judge. Petitioner Burdette Woods pled guilty and was subsequently adjudged guilty of second degree murder and manslaughter in the Circuit Court for Shawano County, Wisconsin for the beating death of Henry and Beryl Schwab. An oral confession obtained from Woods while in police custody played a pivotal role in petitioner pleading guilty. Prior to pleading guilty Woods brought a motion to suppress the oral confession. The trial court denied the motion. Woods took direct appeal to the Court of Appeals of Wisconsin pursuant to Wisconsin Statute § 971.31(10). The Court of Appeals affirmed in an unpublished order. Subsequently the Wisconsin Supreme Court reviewed the circumstances surrounding the confession and affirmed the rulings of the lower tribunals. See State v. Woods,117 Wis.2d 701, 345 N.W.2d 457 (1984). Woods then petitioned for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Wisconsin, 605 F.Supp. 890. Judge Myron Gordon applied a "totality of circumstances" analysis to the facts surrounding the obtaining of the oral confession and concluded the police violated federal constitutional safeguards. He granted habeas corpus relief. We now review the district court ruling pursuant to 28 U.S.C. § 1291. We affirm Judge Gordon's ruling. On September 10, 1979, Henry and Beryl Schwab were beaten to death in their Shawano County home. While local police were investigating the murder scene petitioner Woods was observed watching the events unfold from a distance. His presence and interest caused him to become a prime suspect. However, several days into the investigation police had no probable cause to arrest him. Shortly thereafter police received information that petitioner had attempted to sell
a stolen chain saw to a local resident approximately seventeen months earlier. Police obtained a statement to this effect from the person to whom the sale was attempted. Lacking the requisite probable cause to arrest Woods for the Schwab murders, the police decided to arrest petitioner on a theft charge in order to bring him into custody to question him about the Schwab incident. On September 23, 1979 at 7:30 a.m. Shawano police officers Trombi and Thorpe drove to the trailer of petitioners' grandparents where the sixteen and one-half year-old Woods lived. After gaining entrance with the consent of a family member, the police walked into petitioner's bedroom and awakened and arrested him. Woods was handcuffed and placed in a police car. While in transit to police headquarters petitioner was read his Miranda rights and asked if he understood them. Woods responded affirmatively. Woods was also asked if he wished to consult an attorney to which he answered in the negative. When asked if he would like to answer any questions or make a statement Woods did not respond. Woods arrived at police headquarters at approximately 8 a.m. A juvenile intake worker, David Gage, asked Woods many of the same questions concerning his understanding of his Miranda rights and his opportunity to consult an attorney. Woods continued to state he understood his rights and did not wish the presence of counsel. At this point Woods was fingerprinted, photographed and asked to remove his clothes and don jail overalls. He was not issued shoes or socks and was left barefoot. After approximately forty-five minutes the booking process was completed and Woods was taken to a room to be interrogated by Officers Thorpe and Trombi. Woods was seated at a table, still barefoot and dressed in jail clothing but unrestrained. Approximately one to two feet away from Woods were pictures of the Schwab murder scene. Officers Thorpe and Trombi did not repeat the Miranda warnings to Woods. They did ask several times if Woods was willing to talk to them. The petitioner never responded. Without Woods' explicit consent the officers proceeded to interrogate Woods about the Schwab case for approximately fifteen to twenty minutes. Several intimidating and deceptive tactics were employed by the officers to get Woods to talk. First, there were the disturbing pictures of the murder scene and the jail house clothing. In addition to this, Officer Thorpe misrepresented that police officials had enough evidence to convict Woods regardless of whether he talked. The officers admit this statement was not true. Officer Trombi further suggested things would "be better" or "go easier" if Woods talked, in view of the fact he knew Woods committed the murders. Trombi testified petitioner became visibly emotional during the interrogation. At one point when Officer Trombi asked petitioner why he was in the woods the day after the murders Woods responded, "I never went in the woods the next day." Nonetheless, except for this statement and despite the police tactics mentioned above Woods, although clearly emotionally involved, remained unresponsive. Having reached an apparent impasse, Officers Trombi and Thorpe left the room. Two fresh investigators, Robert Ankenbrandt and Wendell Harken of the Wisconsin Division of Criminal Investigation, entered the interrogation room to commence their own interrogation. Harken asked Woods if he had been advised of his rights and Woods replied affirmatively. Harken and Ankenbrandt then initiated their own questioning. More deceptive tactics were employed to elicit an incriminating response from Woods during this second interrogation. Agent Ankenbrandt testified he produced a fingerprint card with two prints circled in red and the wallet of one of the murder victims and declared to Woods, "this is what is going to pin you down, or this is what's going to hang you, or something to that effect." Tr. 41. Ankenbrandt admits this statement was untrue and intentionally advanced to trick Woods into confessing. Indeed, no fingerprints were found on the wallets of the victims.
After twenty to thirty minutes of continuous interrogation, Woods began to cry. Agent Harken then put his hand on Woods' shoulder in a paternal manner. It was at this point Woods orally confessed to the Schwab murders.1
* The Honorable William J. Campbell, Senior District Judge of the Northern District of Illinois, is sitting by designation. 1. Woods subsequently signed a written confession as well. However, it was suppressed at the state trial court level and therefore any issues surrounding its procurement are not presented on appeal. 2. The state claims the room was warm and petitioner was asked if he wanted food or drink or to use the restroom. We do not view these facts as positive overtures in view of the otherwise harsh setting. 3. We repeat the Miranda quote selected by the district court: "The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated." 384 U.S. at 487, 86 S.Ct. at 1630. 4. "... a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628. 5. In Haley, supra, the Supreme Court stated:
"... when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy ... [H]e cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year old lad, questioned ... by relays of police, is a ready victim for the inquisition. Mature men might stand the ordeal ... [B]ut we cannot believe a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, may not crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour ... [N]o lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning." Id. 332 U.S. at 599-600, 68 S.Ct. at 303-304. 6. We agree with the district court when it states, "The police are not ... licensed to grill the silent suspect." (D.Ct.Op. p. 11.) 7. We feel compelled to distinguish the instant case from Moran v. Burbine, 475 U.S. ___, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). In Moran the issue was whether the police's failure to notify a suspect of an attorney's telephone call and offer of representation deprived the suspect of his capacity to knowingly waive his Fifth Amendment right to the presence of counsel. In Moran the voluntariness of the suspect's confession was not at issue. There was no evidence police used any coercion and/or psychological pressure in securing the incriminating confessions. Indeed, it was the suspect who initiated the discussion with police which led to the damaging confession. The Court ruled that since the receipt of the attorney's telephone call by police was never known to the suspect, the police's conduct in failing to inform him of an attorney's call had no practical effect on the suspect's knowing waiver of his right to counsel.
In contrast, in the case at bar we are concerned with a custodial police interrogation involving a juvenile where rather intense psychological pressure was employed. We rule today the police conduct in the instant case fatally tainted the voluntariness of Woods' confession by hindering his ability to make a rational, voluntary waiver of his Fifth Amendment privilege against compelled self-incrimination. 8. We find no need to rule on the state's burden of proof argument which focuses on the issue of whether petitioner bears the burden of proving his confession involuntary or whether the state must prove a valid waiver in a habeas corpus action. We find any discussion of this issue in this case unnecessary because under either standard advanced by the state we believe affirmance of the district court ruling is in order.
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