Reed Wayne Hamilton v. Crispus Nix, Warden, and Attorney General of the State of Iowa

HAMILTON, Wayne Appellant, Reed NIX, Warden, Attorney

Crispus of the State of

General

Iowa, Appellees.

No. 84-2089. Appeals,

United States Court of

Eighth Circuit. May

Submitted 1986.

Decided Jan. 1987.

464

thy and Pappas, Larson Nick Jr. The Iowa Supreme Court affirmed both convictions Hamilton, appeal. State v. on direct (Iowa 1983). N.W.2d 154 then petitioned under 28 U.S.C. for a § corpus. (1) alleged writ of He habeas key prosecution witnesses evi- and certain dence admitted at trial were discovered because earlier violations and, his Fifth and Sixth rights, Amendment thus, tree,” being poisonous “fruit of the trial; improperly (2) were admitted im- proper statements made prosecution during opening its statement and clos- its ing argument deprived trial; him of a fair (3) and there insufficient evidence degree convict first him on a murder felony theory. murder The District Court1 rejected those each contentions and de- Nix, Hamilton v. petition. nied the Civil (S.D.Iowa (un- 1984) No. 83-454-B June published order). opinion memorandum and appealed, panel and a Court, judge reversed, one dissenting, holding the state trial court committed constitutional error in admitting certain physical witness and as part prosecution’s case. panel challenged reasoned and poisonous evidence were “fruit of the tree” discovery because procurement their Wellman, Moines, Iowa, John C. Des for “inextricably prior linked” with the appellant. misconduct, and concluded evidence was not admissible Moines, under the “at- Iowa, Brent R. Appel, Des for tenuation,” “independent source,” “inev- or appellees. discovery” exceptions itable to the exclu- LAY, Judge, Before Chief Nix, sionary rule. Hamilton v. HEANEY, ROSS, McMILLIAN, (8th Cir.1985) (panel opinion). In so ARNOLD, GIBSON, FAGG, JOHN R. holding, panel applied set BOWMAN, WOLLMAN, MAGILL, States v. United forth Judges, Circuit en banc. granted peti- This Court the State’s BOWMAN, Judge. Circuit rehearing tion en for banc. For rea- below, Reed Hamilton Iowa convicted sons discussed we affirm Dis- court degree state of first murder and vol- trict denial of petition Court’s Hamilton’s untary manslaughter corpus.2 the deaths Ca- for a writ of habeas Nix, Vietor, (8th Hamilton v. opinions, 1. The Honorable Harold D. see F.2d 619 Judge District Cir.1985); States for the District of Southern State 335 N.W.2d 154 Iowa. 1983), (Iowa we will not restate them here. Instead, particular will we refer facts as nec- 2. Because facts of this been thor- case have analysis. essary in the course of our oughly published prior discussed in the two ilton which he killing Pap- I. admitted pas and Larson asked her to remove key first contention is that the suitcase of from her house. and evidence admit- prosecution witnesses Paul Lincoln testified that on the day of the police as discovered ted at trial were killings Reed Hamilton carried a suitcase misconduct; thus, prior result of their containing large green bags two into the poisonous “fruit of the such evidence was of Maxine basement Hamilton’s house. admitted at trial. improperly and was tree” basement, opened Lincoln later went to the challenges Hamilton the ad- Specifically, suitcase, the and saw “some kind of tobac- (1) testimony of Maxine mission “strange co” with a smell.” during regarding telephone conversation kill- confessed to the which Reed Hamilton poisonous Under the “fruit of the tree” (2) testimony of Maxine ings; the trial doctrine, exclusionary the rule bars the ad- regarding Paul Lincoln Hamilton and physical mission of evidence and live wit- containing pounds marijua- of suitcase ten testimony directly ness obtained or indi- na; (3) marijuana the itself. through rectly exploitation the deny does not appeal the State On illegality. Wong v. See Sun United police misconduct occurred.3 471, 484-88, States, 407, 371 U.S. 83 S.Ct. challenged argument is that all the State’s 415-18, (1963). 9 L.Ed.2d and Paul testimony of Maxine Hamilton Court, however, recognized has three an- nonetheless admissible under Lincoln was alytically exceptions distinct to this doc- exception to the “independent the source” suggested trine. The has Court that the “ agree exclusionary rule. We that the iden- ‘whether, underlying analysis focus of is testimony Hamilton and Lincoln tity and granting primary establishment of the il- independent of from lawful sources derived legality, the evidence to which instant ob- misconduct, and, therefore, jection by exploi- is made has been come at admitting not err in their the trial court did illegality tation of that or instead means testimony. distinguishable purged sufficiently to be ” 488, primary taint.’ Id. at the second in this The trial below was Thus, (citation omitted). under the “in- Lin- Both Maxine Hamilton and Paul case. doctrine, challenged trial, dependent source” testify the first coln refused to prosecu- if and, will be admissible consequently, both were held con- evidence it from a lawful jail short tion can show that derived tempt of court and sentenced to again independent of the conduct. subpoenaed Both were source terms. trial, this time Lumber Co. testify at the second Silverthorne 392, 182, 183, 385, States, 40 S.Ct. prosecution. 251 U.S. testified on behalf both (1920). In such a there Reed 64 L.Ed. 319 Maxine Hamilton testified that Ham- challenged evi- handgun from her is no reason to exclude ilton had borrowed a is killings. misconduct month She dence since about one before discovery. cause of its killings for” day that on the even a “but testified Second, challenged evidence will be admis- suitcase into Reed Hamilton carried blue doctrine, “attenuation” downstairs to leave in sible under her house and took it basement, not have an though even it did her but that she never looked source, causal connection between also testified about if the into the suitcase. She violation and the dis- Reed Ham- the constitutional telephone her conversation with incriminating information Detective Haviland’s elicited The State concedes that 3. leniency promises regarding inter- his actions after the kill- to Hamilton subsequent rogation in- rendered Hamilton’s ings. time that Hamilton accom- It was at this involuntary. criminating Those statements panied and retraced his route from from evidence statements were excluded killings re- residence after the The State police. at both trials in this case. trial court cooperate quested his mother to with the Ham- that the violated likewise concedes II, infra, at 469-71. Part See right to counsel when ilton’s Sixth Amendment covery of the evidence has become so atten- framework to evaluate admissibility dissipate uated as to the taint. United live witness under the attenua- 273-80, States tion 274-79, doctrine. Id. at 98 S.Ct. at Third, challenged S.Ct. at 1058-62. evi- 1059-61. dence under the will be admissible “inev- The Ceccolini attenuation (or ultimate) discovery” itable doctrine if however, apply, does not absent an prosecution can initial establish that it inevita- factual determination bly would have been discovered lawful the witness whose challenged means without reference to the mis- Williams, conduct. Nix v. was discovered as a result of the constitu 81 L.Ed.2d 377 tional violation. See id. at 276 & n. Indeed, & n. 1060. identity of the witness in Ceccolini was argues that Maxine Hamilton’s discovered because of the unlawful Lincoln’s Paul was not ad- by police search the officer. Attenuation any missible under of these excep- three analysis inappropriate, however, is in a tions, urges adopt us to the same rea- here, such as in which police the soning by panel the majority, used which already are aware of the witness’s primarily focused on the “attenuation” and involvement. See United States v. analysis set forth in Ceccolini. We be- Crews, 463, 471-72, lieve, however, panel that the majority read 1244, 1249-50, 63 L.Ed.2d and, broadly, Ceccolini too consequently, Moreover, application in applying that it erred analy- attenuation Ceccolini analysis beyond context, sis in this case to exclude its factual Maxine Hamil- as was testimony. by panel ton’s and Paul Lincoln’s done majority, would eviscer independent ate the source exception to the officer, In a while tak- exclusionary rule. a break the defendant’s business shop, envelope noticed an containing money independent The source doctrine was lying register. Upon on the cash closer recognized first Court in examination, he found that it also con- Silverthome Lumber. The Court there slips paper tained indicating unlawful stated: gambling activity. questioned He then one The essence provision forbidding of a employees, of the defendant’s who told him acquisition way of evidence in a certain is envelope belonged to the defend- merely that not acquired evidence so ant. The officer forwarded this informa- shall not be used ... but that it shall agent, tion to an FBI who later interviewed be used at all. Of course this does not employee without referring to the inci- mean that the facts thus obtained be- involving dent officer. The de- come sacred and inaccessible. If knowl- fendant falsely later testified before a fed- edge of gained them is from indepen- an grand jury eral that he had never been they may proved dent source others____ any be like any way involved in gambling opera- tions. employee His testified prose- for the 40 S.Ct. at 183. The subsequent cution at his trial for perjury. independent rationale for the source doc- The sought suppress defendant his em- explained by trine was the Court in Nix v. ployee’s testimony poison- as “fruit of the Williams: granted ous tree.” The trial court the mo- tion, derivative en- reasoning employee-witness [T]he that prosecution sures that put is not “first came directly to the attention of the position government simply worse as because of some a result of an earlier search.” 435 error or misconduct. U.S. at S.Ct. at 1058. affirmed, The court appeals independent but the source doctrine allows ad- Su- preme Court reversing, reversed. mission of evidence that has been discov- Supreme Court analytical set forth an wholly independent any ered means violation____ indepen- Cathy Larson

constitutional were there at that time. us that the dent source doctrine teaches purchased He he said some society deterring interest of unlawful home, from left where he public interest in conduct fiancee, Nystrum, and his Diane stayed having probative juries receive all evi- p.m. until about 8:00 they when went properly of a crime are balanced dence shopping and to his mother’s be- house same, by putting the not a returning fore home. just He stated that worse, position that would have prior bed, going Diane had seen a in if or been no error misconduct shadow outside the house and that he challenged had occurred. When the evi- gone upstairs get shotgun. had his source, independent dence has an exclu- up night He said he had protect sat all put po- sion such evidence would the home with his shotgun. The officers position than they lice in a worse would if any then asked him he guns be- have been in absent error or viola- shotgun. sides the replied tion. and, .38 caliber revolver when (footnote was, asked where responded it it omitted). inquiry and citations The critical (In- was “over to his mother’s house.” the independent under doctrine source vestigation of killing had established challenged evidence was ob- whether used.) .38 weapon caliber had been tained lawful sources and lawful Immediately following the defendant’s police miscon- means statement being about revolver at his States, Segura duct. v. United house, mother’s of several the officers 796, 805, 814, 3380, 3386, S.Ct. interrogation left the type up room to (1984); Williams, L.Ed.2d 599 Nix v. application search warrant for the moth- 459, (Brennan, J., U.S. at 104 S.Ct. at 2517 house, er’s apparently gun for the and Crews, 471-72, dissenting); see 445 U.S. at marijuana. point, It was at this when 475, 1249-50, 1252. left, the other officers had that Hamilton In case inquiry clearly this that remaining asked the officer to lock the must in of be resolved favor the State. door and confided to the officer that he any occurred, Before misconduct the help.” “needed The officer’s response police were well aware of Maxine Hamil try according he would to help, that identity ton’s and involvement in the case. order, suppression the trial court’s then Supreme The Iowa found Court as follows: the tainted remainder of the statement. police interrogation The of Hamilton occurred, tainting Before the the iden- seg must be divided into distinct two tity possible and involvement of Hamil- ments, preceding suggestion that the of mother ton’s were known to the officers. help following and it. The interro later, tainted, portion The of the state- gation began police headquarters at ment, clearly more focused on the extent p.m. day approximately 9:20 on the fol por- of her involvement and contradicted lowing shooting. the Hamilton was per- tions of his earlier statement as it properly rights, of advised his Miranda tained to her. in example, For the sec- regard. no and issue raised statement, ond half of his he the said interrogation continued without a gun was not at his mother’s house he as problem approximately p.m., until 11:00 was, fact, originally said but on the made, suggestion help when the Nevertheless, bottom of a the river. tainting alleg and the of the confession occurred, point tainting at which edly During pre-tainting occurred. already had learned about segment interrogation, involvement; investigation mother’s their furnished considerable information. He was far from an aimless search for evi- gone said had to the victims’ house dependent dence which for p.m. day between 3:00 and 3:30 on the direction shooting upon anything and that Nick Hamilton said later. The point Leonardi, at that the mother’s United States v. police knew (2d Cir.), denied, 928, 100 figured prominently Hamil- 752 house cert. previous day ton’s activities 65 L.Ed.2d 1123 marijua- good reason to believe both the right every State has a witness’s testi- weapon found na and murder could be mony except in those narrow circumstances there. recognizes privilege where law on grounds public policy. Branzburg at 159. None of these facts is 335 N.W.2d Cf Hayes, 408 U.S. event, court’s dispute. any the state (1972) (noting enti- determinations of factual issues are “longstanding principle public cor- that ‘the ... statutory presumption tled to the 2254(d). ”); rectness under 28 U.S.C. man’s evidence’ right every Seg § ahas ura, 104 S.Ct. at 3392 Though conceding (rejecting suggestion there is a aware of Maxine Hamilton’s evidence). right” destroy “constitutional any police potential as a witness before Acceptance panel’s reasoning, how- occurred, panel majority misconduct did ever, privilege would an create additional weight “given not fact much accord that who, though lawfully witness dis- strength of the evidence of the involun- subpoenaed, cooper- covered and refuses to testimony.” tariness of Maxine prosecution, ate with the or panel majority placed F.2d at 627. The superimpose would attenuation great emphasis on the fact that the State upon independent source doctrine. subpoena had to Hamilton to Maxine testi- fy. panel’s opinion, In the her because found, As the Iowa Court (in testimony was “coerced” the sense that were aware Maxine Hamilton’s only subpoena), she testified under it was importance involvement and her as a wit- under admissible voluntary ness from statements made exception. source Id. at 628 n. 11. interrogation Reed Hamilton evening

The fact January a witness testified 1978. The tele- subpoena phone under does not render the conversation about which Maxine identity following source of that witness’s or the Hamilton testified occurred the (several testimony morning interrogation means which the witness’s hours after Crews, ceased) any less per- was obtained lawful. See had when Reed was 472, (“Here telephone 445 at 100 at 1250 U.S. S.Ct. mitted to make call. The tele- identity long phone part the victim’s was known before conversation was in no sense misconduct, any there was official and her or tainted the earlier unlawful presence in court is thus not traceable to conduct that rendered some of his confes- violation.”). any Fourth involuntary. lawfully Amendment sion The State Though may that be a relevant factor un learned of Maxine Hamilton’s involvement analysis, lawfully procured der the Ceccolini attenuation it is in the case and it her independent testimony not a relevant factor under an attendance and at trial with a analysis. thing source subpoena. It one to exclude It would be an ironic rule of manner; evidence obtained in an unlawful to exclude a critical witness’s testimo- law quite testimony ny simply it is another to exclude the in circumstances these because lawfully unlawfully of a witness whose obtained some of 814, during Segura, discovered. the same information the course of See 3391; Crews, investigation. place 104 445 471- their S.Ct. at U.S. at That would 1249-50, (“The position State not in the same it would have occurred, exclusionary enjoins in rule the Government been had no misconduct benefitting position, contrary from evidence it has un but a worse to the obtained; lawfully it does not reach back Court’s admonition in Nix v. 443, ward to taint information that was offi Williams. S.Ct. illegality.”); voluntarily provided prior cial hands 2509. Reed Hamilton cf. identifying Therefore, with information his we hold that its admission into mother as a witness with valuable knowl- evidence Compare was error. Agnello v. edge. complain He cannot now that States, 269 U.S. 46 S.Ct. advantage took State information (1925) L.Ed. 145 and United States v. by lawfully subpoenaing his mother to tes- James, (D.C.Cir.1977) 555 F.2d 992 with tify at his trial. We hold that Maxine States, Walder v. United 347 U.S. testimony was admissible under (1954). 98 L.Ed. 503 Our review “independent exception, source” and of the transcript us, entire trial convinces trial the state court did not err however, the error was harmless. admitting it. strong There was circumstantial evidence permit jury beyond conclude reasons, For the same we hold that reasonable doubt that Hamilton had robbed Paul Lincoln’s was admissible Pappas marijuana. III, See Part independent exception. under the source infra. marijuana The itself added little if anything during interrogation At no time did Thus, case. State’s it was harmless Reed Hamilton mention Lincoln’s name. error to admit it into evidence. (who See Milton police lawfully The discovered Lincoln v. Wainwright, living Maxine Hamilton at the case) time of the events involved in this investigation, the course of their they lawfully procured his attendance II. subpoena. at trial with a

Thus, Lincoln’s was admissible Hamilton next contends that improper exception, under the source prosecutor remarks opening in the and the trial committed court no error in closing argument statement and admitting it. prejudicial deprived him of a fair trial. itself,

The admission of the however, presents a different situation. It During closing argument, prosecutor seriously disputed is not suggested that there was sufficient circum- was a fruit of unlawful conduct. stantial evidence to convict Hamilton of took Hamilton to his mother’s degree premed- first murder under either a house, promised leniency, after he had been theory felony itation or theory. murder cooperation to seek her in recovering the prosecutor stated, “So both theories marijuana. Only then did Maxine Hamil- ample clearly there’s in this give ton retrieve the suitcase and it to the degree evidence of a first murder as to police. The State concedes that the mari- Larson____” Kathy Nick both juana was not admissible under either the Transcript Trial at 547. The defense ob- source, independent attenuation, or inev- jected moved for a mistrial on the discovery exception. itable ground improper argue that it was first degree murder as to since the State sought justi

At trial the State charged only voluntary Hamilton with fy the admission of the on the manslaughter Pappas’s for death. For ground rea- “opened that the defense had record, apparent not door” sons Hamilton by cross-examining to its admission charged degree had been with first Maxine Hamilton murder about her activities regard only judge to the for Larson’s death. The trial marijuana. suitcase of The judge objection, trial admitted the “re sustained the as admonished testimony.” prosecutor, immediately buttal does not ex State instructed plain exactly jury disregard prosecutor’s in its brief or what evidence remark. sought testimony by introducing judge it to rebut The trial denied the motion for mis- marijuana. prosecutor Nor are we trial. The then concluded his able to discern transcript proper closing argument from the trial a reason without further incident. argues appeal prose- its admission as rebuttal evidence. Hamilton on 470 proper improper

cutor’s remark “so infected the remarks. judge gave The trial a cautionary as the result- trial with unfairness to make instruction jury to the immedi- process.” ately a denial of due after the improper conviction remark. More- 637, over, DeChristoforo, 416 U.S. Donnelly guilt v. the evidence of Hamilton’s 1868, 1871, overwhelming. 40 L.Ed.2d 431 94 S.Ct. We hold that Hamilton has (1974). not showing met his burden of a reasonable probability improper that absent re- corpus proceeding, In a 2254 habeas § jury’s mark the verdict would have been alleged pro- due federal court’s review of different. stemming from a state court cess violations petitioner must objections narrow.4 opening conviction to the alleged improprieties prosecutor’s show that the were statement concern the refer- egregious they fatally “so infected the ences to items of evidence and to proceedings rendered his entire trial of witnesses he believed would be intro- fundamentally Wyrick, unfair.” Moore v. prosecution’s duced case-in- (8th Cir.1985); 760 F.2d holding I, see Dar- chief. supra, Our in Part re- — -, Wainwright, den U.S. garding v. the admissibility of Maxine Hamil- 2464, 2472, (1986); ton’s and Paul testimony disposes Lincoln’s Donnelly DeChristoforo, v. part U.S. at of Hamilton’s contention here. 642-43, 1871; Phillips, 94 S.Ct. at Smith v. objects prosecutor’s also 209, 219, 71 references of Edwin burden, Kracht, carry L.Ed.2d To investigator. Kracht testi- petitioner must show that there is a theory fied the State’s of Hamilton’s probability reasonable following that the error com- route killings approx- and the plained of affected the outcome of the trial imate time and distance between various —i.e., alleged that absent the impropriety points along that route. Hamilton con- probably the verdict would have been dif- tends that Kracht’s was based Kirkpatrick Blackburn, ferent. solely See provided by on information (5th Cir.1985); 278-79 United when he police. retraced route with the Robertis, States ex rel. Shaw v. judge De 755 The state trial previously had exclud- (7th Cir.1985). F.2d 1281 n. 1 ed reference to information derived solely from that excursion because it was Applying that narrow standard of by police tainted misconduct. present review to the say we cannot prosecutor’s remark, lone when A transcript review of the trial con viewed in the context of the entire and vinces us all trial the information on which isolation, Donnelly see lawfully DeChristo Kracht relied was obtained from foro, sources pro the information deprived Hamilton of a fair trial. The im vided Hamilton. Evidence from various proper challenged (whose conduct here consisted witnesses and testimony single of a during closing argu obtained) remark lawfully provided a reason being ment. After admonished ably the trial accurate account of Hamilton’s actions judge, prosecutor following killings. example, Doug- made no other im- For conviction, 4. The proof standard and burden of are review of a state court § differ- ent, course, considering when we are may where we consider errors of constitu- appeal direct claims of error in a federal crimi- magnitude. Wainwright, tional See Darden v. however, appeal, nal trial. On direct — U.S.-, we are 106 S.Ct. 91 L.Ed.2d exercising supervisory power our over matters (1986) (“[T]he appropriate standard of re- judicial administration in the federal district corpus view for such a claim on writ of habeas See, e.g., Hernandez, courts. United States v. process, is ‘the narrow one of due and not the (8th Cir.1985) (abuse 779 F.2d 456 of discretion supervisory power.’”) (quot- broad exercise of applied prosecutorial standard to claim of mis- ing Donnelly DeChristoforo, Thus, conduct). every might trial error that 1871); Phillips, Smith v. 455 U.S. result in reversal of a federal conviction on (1982). 102 S.Ct. 71 L.Ed.2d 78 appeal direct would mandate the same result in Millin that he saw Hamilton at action. las testified There was evidence that Hamilton Pappas approximately gun, residence at 5:30 had a .38 caliber that he was at the Pappas approximate day killings. of the Martin residence at the p.m. on the time Grund, killings, of the Pappas and that acquaintance a childhood of Hamil- and Larson ton’s, were shot with a .38 weapon. caliber testified that Hamilton arrived at his There was shortly evidence that after wearing clothing p.m. at 6:00 house wet killings time of the Hamilton carried a suit- accidentally told that he Grund containing, according Lincoln, case to Paul had fallen in the river. Paul Lincoln testi- bags two full of “some kind of tobacco” fied that Hamilton returned to his mother’s “strange awith smell” into the house Lin- p.m. 6:30 house at Since Kracht’s testimo- Hamilton, coln shared with Maxine secretly ny lawfully on information was based ob- basement, hid it in the and later asked his po- tained from sources of the mother to remove it from the house to misconduct, prosecutor lice committed police. conceal it from the We are satisfied impropriety in referring no to this testimo- there was sufficient circumstantial evi- ny opening in his statement.

dence from jury which the could find be- yond a III. reasonable doubt that Hamilton Pappas robbed and killed Lar- Hamilton’s final contention is that there son robbery. course of that See jury was insufficient evidence from which a 307, 318-19, Virginia, Jackson v. reasonably could conclude that he was 2781, 2788-89, guilty degree felony of first murder on a theory, predicate felony being murder robbery. argues The District Court’s that there was denial of Hamilton’s petition corpus no evidence to connect the for a writ of he habeas is carried into his mother’s house with the affirmed. residence, and, thus, Pappas no evidence LAY, Judge, Chief with whom HEA- robbery that a had occurred. NEY, ARNOLD, McMILLIAN and Circuit reviewing All pre three courts that Judges, join, dissenting. viously have addressed this issue have held We dissent.

that there was sufficient circumstantial evi permit jury dence to reasonably majority’s to infer analysis presents super- that Hamilton Pappas had robbed of a “poisoned ficial fruit” doc- large quantity marijuana. See Hamil trine under It Ceccolini. diminishes the Nix, ton v. (panel F.2d at 629 n. 13 attenuated rule to doctrine of Nix, 83-454-B, opinion); No. majority’s Hamilton v. utter ineffectiveness. Under the slip (District op. opinion); at 9-10 analysis, Court if the state becomes aware through State 335 N.W.2d at 161 of a witness lawful (Iowa sources, Supreme opinion). Court Our inde then whatever information the wit- pendent transcript possesses, review of the entire trial ness whether or not it is ob- us through leads to the same conclusion. There tained coercion or discovered sources, Pap- through was evidence that both Hamilton and unlawful becomes evi- dealers, pas drug However, proper ig- Hamilton dence and that use. appointment had made an nores the Court’s admonition in drug There, transact a day deal on the Ceccolini. Court stated that killings. There was potential evidence that fact that the name of a “[t]he day killings Pappas before the witness disclosed to is of no $4600 evi- (an se, amount buy pounds dentiary significance, per sufficient to ten since the liv- marijuana) person- and that usually purchased he witness is an individual human (intended will, large quantities drugs ality perception, for re whose attributes of drug memory sale his customers or to other and volition interact to determine dealers) shortly give.” before the scheduled trans- what will (quoting at at 1060 dressed in a bathrobe. Hamilton told States, 324 F.2d 881-

Smith v. United the officer lived there and that (1963) J.)). (Burger, people trying some had been to kill him. thought Hamilton said that he one of them Although majority opinion omits Pappas’ was Nick brother. After addition- facts, discussion of the relevant ante at see arrived, al officers a search of the 464, the nature of the constitutional viola- house was conducted. No intruders were requires tions that occurred here a detailed found, bag marijuana but emp- and an understanding underlying events. ty handgun holster were discovered. Ham- Jr., Pappas, Cathy Nick and Larson were ilton was then possession arrested for gunshot found dead of wounds in their Des taken to the West Des Moines sta- evening January 25, Moines home tion. 1978. There was substantial evidence that Hamilton was later transferred to the Pappas large regularly quantities sold where, Des Moines station after be- drugs. Pappas had been shot twice ing advised of rights, his Miranda he was revolver; back of the head a .38 with caliber questioned about his activities Larson, three weapon. times with the same previous day. The Iowa Court Their Pap- bodies were discovered Nick determined initially that Hamilton pas’ made father and sister sometime between following police: statements to the p.m. 5:30 and 6:00 gone said he had to the vic- [Hamilton] Shortly p.m., after 6:00 Reed Hamilton tims’ house between p.m. 3:00 and 3:30 appeared friend, home of a childhood day on the shooting and that Nick soaking shaking violently. wet and Hamil- Pappas Cathy Larson were there at gone ton told his friend that he had out on purchased time. He said he some argument girl- river after an with his from and left friend, Nystrom, Diane and had fallen home, fiancee, where he and his Diane through the ice. gave The friend Hamilton Nystrum [sic], stayed until about 8:00 clothes, and, dry some Hamilton while p.m. when shopping went changed, and to his counted out Hamilton had $279.00 mother’s house before returning him home. request. at Hamilton’s house, just prior bed, He stated going soon left his to friend’s to arrived at his mother Maxine Diane had seen a Hamilton’s home shadow outside the some- p.m. time after gone 6:30 house and upstairs that he had get shotgun. He up said he had sat Hamilton entered his mother’s house night protect all the home with his carrying a suitcase. Both Maxine Hamil- shotgun. The officers then asked him if Lincoln, ton and Paul a man with whom any guns he had shotgun. besides the time, Maxine living were replied that he a .38 caliber present when Hamilton arrived. Hamilton and, was, revolver when asked where it took the suitcase down into the basement responded that it was “over his moth- of the house upstairs and came back empty er’s house.” handed. After pick Hamilton left to Diane Nystrom up work, Lincoln looked into 335 N.W.2d at 159. After Ham- the suitcase plastic statements, and found two bags ilton made these all but one of bags inside. Lincoln stated at trial that the present interrogation left officers contained “some kind of tobacco” with a application prepare room to an for a war- strange smell. rant to search Maxine Hamilton’s home. day, postal

The next Hamilton then asked the officer reported carrier who re- being mained in the room to lock the door windows broken Nystrom out help.” and Hamilton’s confided that he “needed West Des re- patrolman sponse, replied: Moines home. A went to inves- the officer “Tell us the tigate incident, try and found help you.” Hamilton truth and will we sitting house, judge a car in front of suppression state who held the hear- * * * promise leniency found this rendered “Lincoln’s also confirmed * * * the remainder of statement Hamilton’s in- that he and Maxine took the suitcase voluntary inadmissible.1 As recounted to the home of Ann Morrison.” Hamilton, Court, Supreme following the Iowa 335 N.W.2d at 157. promise leniency: officer’s arrived at Maxine Hamilton’s stated he had shot the victims [Hamilton] home at 10:00 a.m. to execute the search and that he had taken approximately ten warrant, prepared night before, for lo- pounds marijuana and one ounce of cating marijuana and a .38 gun. caliber home; cocaine from the that he The search revealed neither gun nor took the to his mother’s home marijuana. Maxine Hamilton initially placed where he it in a suitcase and hid it denied that brought Reed had any marijua- basement, in the then he went to “a na into the house. Then one of the officers dispose and, river” to gun while told her that knew Reed had ice, walking on the fell in. pounds carried ten into her Hamilton, 335 house in N.W.2d at 156. Hamilton a suitcase. Shortly thereafter, admitted, agreed then Maxine response to show the where to direct questions, decided, gun. brought hidden the It was that Reed had how- a suit- ever, case into the morning to wait until the house and next that she act had re- not, however, moved it. plan, on this She did divulge because it was too dark to see. the location of the suitcase. Early following morning, January again however, is conflicting, regarding a.m., approximately 5:00 Hamilton called may what she have said about his mother jail. He asked that she early morning Hamilton’s telephone call. remove the suitcase in the basement from Maxine Hamilton testified that she lied to her house. His mother told him that she morning, and specifically anyone, knew he hadn’t killed to which he telling denied them anything about replied, yeah, “oh but I did.” Paul Lincoln phone call. There was some testimony, inwas the same room with Maxine when however, that she did relate the substance call, she received the and heard some of the call to one In any officer.3 all her side of the According conversation. personnel law present enforcement testi- Lincoln, he and Maxine then went into the fied that generally she was uncooperative. living room to talk. It undisputed Maxine later meantime, took the suitcase to the home In the Reed Hamilton had re- friend, family Morrison, of a Ann quested the assistance an attorney who asked keep Morrison to it. Less clear is demanded that the questioning cease whether Paul Lincoln went with her.2 The Hamilton. attorney Hamilton’s also Supreme found, however, Iowa sought Court granted and was a court order re- sought 1. Both Hamilton and the point state and ob- 2. The on this is somewhat con- appellate ruling. fusing. tained state review of Maxine Hamilton was never asked at April, upheld Appeals accompanied Iowa Court of trial whether Lincoln her. Lin- ruling, petitioned and the state for further coln testified that he went to Morrison’s home afternoon, Supreme review only of the Iowa Court. The su- in the when Maxine did make a preme trip court denied further review and issued second there to retrieve the suitcase. Mor- proceed Descrip- an order to on June 1979. rison testified that she saw Lincoln once proceedings tions of these earlier are set forth when Maxine came to recover the suitcase. Hamilton, did, (Iowa however, in State v. testify 309 N.W.2d Lincoln that he went with 1981) marijuana, State v. N.W.2d Maxine to deliver the and neither (Iowa 1983). appeal Hamilton’s brief on nor his counsel’s argument deny to this court Lincoln's involve- sought The state has not to further defend the early morning ment in the transfer of the suit- validity of the officer’s conduct. It did not case. challenge suppression on order appeal pro- direct or in the course of habeas supreme findings 3. The state court made no ceedings. The state’s brief to the Iowa say what Maxine did or did the officers appeal Court in Hamilton's direct in fact charac- morning. illegal. terized the officer’s conduct as interrogating from Hamilton was to straining the sentenced three months in jail, The Paul Lincoln to six further. subverted months. Ann Mor- Hamilton however, by testify, did not order, persuading Diane rison also and the ten pounds marijuana ques- a conduit for their were not admitted Nystrom to act as into evidence. convince Reed to retrace the tions and to following killings. The route he took trial, At the second Lincoln and Maxine Nystrom that if she could in- officers told subpoena Hamilton were both served a and cooperate, charges to Hamilton duce testify. testified, did Ann Morrison also be reduced and he against him would would and marijuana the suitcase of was admitted psychiatric help. immediate The receive into evidence. Maxine Hamilton testified said were afraid children officers also that Reed Hamilton had borrowed a hand weapon the murder if Hamilton find would gun from her sometime before the shoot- Nystrom recover it for them. then did not ings, brought marijua- and that he had agreed do as the asked. She to evening. na into her house that She also briefly, Nys- Hamilton and then spoke with early morning telephone testified about the got squad into trom and Hamilton ear call she received from Reed in he which They officers. then with two trav- shooting Pappas admitted and had asked path day elled the Hamilton followed the marijuana her to remove from her base- killings, transmitting with the officers ment. Paul Lincoln testified that Hamilton through questions Nystrom, to Hamilton house, brought marijuana into the answering through and Hamilton in turn confirmed that Maxine had received the call officers, Nystrom her.4 The and Hamilton Reed, and stated and Maxine eventually arrived at Maxine Hamilton’s containing marijuana took the suitcase home. Reed went to his mother to Ann Morrison’s house. Morrison testi- whispered to her that she should tell fied, too, brought that Maxine had the suit- knew, she what and should re- early morning case to her and that the suitcase because the trieve were Maxine and Lincoln had retrieved it later in going help him. Maxine Hamilton and day. Lincoln later recovered the suitcase and objected Defense counsel to the admis- police. They delivered it to the both also sion of Maxine’s of Reed’s con- gave statements, including complete an ac- her, testimony relating fession to all by telephone count Maxine Hamilton of her transfer, storage, and retrieval of the mari- conversation her son. itself, juana and the on the notes, majority As the there were two ground that it was inadmissible fruit of invalidly trials in this case.5 Hamilton’s illegally Hamilton’s obtained confession any obtained confession and direct refer- illegal trip. and the The state trial court path trip retracing ence to the Hamilton’s objections, reasoning overruled these were excluded at both trials. Neither Max- the confession to Maxine and the evidence ine Hamilton nor Paul Lincoln testified relating nothing “had trial, although the first sub- illegal police both been with” do conduct. The poenaed identify- for the purpose limited trial court also denied Hamilton’s motion discussing gun. acquittal felony the .38 Both were for directed verdict of adjudged contempt in Cathy of court. Maxine murder the death of Larson and 4. The state judge manslaughter. appealed ruled on Hamilton’s these con- motion suppress procedure improper that this victions. The Iowa Court reversed trial, evidence received as a result of this finding preju- and remanded for a new activity illegally again obtained. The state dicial error in the admission of certain state- proceedings, does not claim otherwise in these Nystrom. ments Diane State v. appealed ruling and never to the state su- (Iowa 1981). 309 N.W.2d 476-79 All refer- preme court. ences this dissent relate to testi- mony taken at the second trial. 5. The first trial resulted in convictions for first degree premeditated voluntary murder and felony to a objection murder The federal overruled district court on habeas agreed and petition. dismissed Hamilton’s instruction. Hamilton’s motions for mis- generally district court concurred based on certain statements made trial state court’s of the admissibili- including references to Hamil- prosecutor, ty challenged evidence. The district mother in opening confession to his ton’s court rejected also argument closing argument, likewise de- that the state secured Maxine’s cooperation jury nied. convicted Hamilton first investigation only con- degree felony murder for the death of Ca- duct, that she involuntarily, testified and voluntary manslaughter thy Larson and for testimony therefore her should have Pappas. death of Nick the suppressed. been Such approach, an the Supreme reasoned, The Iowa Court affirmed Ham- district court would the involve speculative court in overly the task prob- of appeal. convictions on 335 ilton’s N.W.2d subjective motivations, a witness’s and (Iowa 1983). The rejected 154 state court contrary principle would be to the that the contention Hamilton’s that Maxine’s testi- right state has to every person’s the evi- mony regarding his confession to her and dence. The district court also found no marijuana the transfer of the was inadmis- constitutional in the challenged error state- sible, “independent relying on the source” by ments prosecutor the and in the suffi- exception exclusionary to the rule. The ciency of the support evidence to the con- reasoned that the court since felony viction for murder. of Maxine Hamilton’s aware court, appeal On again to this any police as a before potential witness challenges admissibility the of Maxine occurred, illegality admissibility of the her testimony Hamilton’s of his confession by testimony was unaffected the subse- her, Maxine, Lincoln, and Morrison’s quent acts of misconduct. 335 testimony regarding pounds the ten mar- of at 158-59. The of Lin- N.W.2d ijuana. Absent their foundational testimo- deemed coln Morrison was admissible ny itself, linking to the reason, the same their as identities and argues also in- light as value witnesses came when the following reasons, admissible. For the we pursued investigation through the this believe that all of evidence was inad- 160. The Maxine Hamilton. Id. at state missible “fruit” the of misconduct. rejected court also claim exclusionary It is axiomatic that the rule prosecutor certain made comments physical bars the of admission evidence and at 160. Finally, warranted mistrial. Id. through live witness obtained felony the submission of murder exploitation illegality, e.g., see charge sufficiently supported was held States, Wong 371 Sun v. United U.S. evidence that Hamilton had killed Ca- 484-86, 415-16, 83 9 441 S.Ct. L.Ed.2d perpetrating Larson thy robbery. (1963),or, while metaphor, invoke evidence poisonous 161. Id. at is “fruit of the tree.”6 recently voluntary 6. The Court has limited dence of a confession to be irretriev- scope ably of the "fruits” doctrine certain cases lost to the factfinder.” Id. at 1295. premised alleged violations the fifth bearing on Elstad has no however. Elstad, Oregon amendment. In 470 U.S. v. Here, illegalities underlying involved threat- (1985), 222 S.Ct. 84 L.Ed.2d the Court ening police resulting involuntary in an tactics require held that the fifth does not amendment Moreover, interrogation. confession we confession, suppression of made after conclude in this case that Maxine Hamilton and waiver, proper warnings Miranda and a valid involuntary. Paul was also Lincoln's solely because the had obtained an earli- Thus, subsequent since neither “initial nor voluntary er but unwarned admission from the voluntary respect admission[s]" were suspect. 105 S.Ct. The Court at 1298. reasoned testimony, their the Elstad does nor "[w]hen neither the initial the subse- obtain. coerced, justification quent little admission is admissibility Ann Morrison’s testimo- highly probative permitting exists for evi- ny physical marijuana is and the of the evidence exclusionary exceptions testifying degree rule witness from and the Three however, permitting recognized, have been free will testify- exercised the witness in prosecution if the the use such evidence 276-78, ing. Id. at 98 S.Ct. at 1060-61. se- it or could have been shows that was cooperation Where the of a witness is in sufficiently distinguish- “by cured means fact the result of an exercise of the individ- primary purged able to taint.” be will, by police ual’s free unaffected miscon- if may Evidence be admitted Id. at 487-88. duct, purpose exclusionary rule it has but an “attenuated link” to the un- by disallowing would not be served derlying illegality, States v. Ceccol- United testimony. determining strength ini, 268, 273-79, illegality the link between the and a wit- 1058-61, (1978); testimony, ness’s us to Ceccolini directs White, (8th States willingness consider the stated of the wit- Cir.1984), if it derived from a source inde- testify, played by ness to the role the il- conduct, pendent of the Silver- legally seized in gaining the wit- States, Lumber thorne Co. United cooperation, proximity ness’s between 182, 183, L.Ed. illegal behavior, cooper- the decision to (1920), 319 or if the evidence would inevita- trial, ate and the actual bly illegal- discovered absent the have been engaging motivation in in the Williams, 431, ity. v. 467 104 Nix 279-80, illegal conduct. Id. 2501, 2507-11, (1984); 81 L.Ed.2d 377 1061-62; see also United States v. Leonar- 293, Apker, v. F.2d United States 705 746, (2d Cir.1980). 623 F.2d 752 do (8th Cir.1983). 306-07 Applying these factors to the ease before challenged The state contends that us, they require we conclude that the exclu- sufficiently evidence all was attenuated sion of testimony. Maxine Hamilton’s illegally from Hamilton’s obtained state- Throughout proceedings, the trial court she permit ments to its admission.7 Ceccoli- repeatedly expressed unwillingness her to ni, forth Court set the an- testify. spent jail contempt She time in alytical evaluating framework for whether during giving the first trial to avoid testi- live witness falls within the ex- mony against her son. There can be no ception. paramount The Court deemed of stronger unwillingness statement of her to importance the extent which to “the basic cooperate than her refusal to do so. She purpose exclusionary rule will be appeared again only at the second trial by application” particular advanced its in a 276, subpoena, spending under case. and after three 435 U.S. at 98 S.Ct. jail at 1060. months in Relevant to that determination well aware of the conse- permanently disabling quences are the costs of of future defiance of the order. by finding supported by also unaffected Elstad. This evidence the record. While true, not, by illegal interrogation accepting obtained sulting Hamilton’s re- these facts as we are how- agreement ever, to by Maxine's and Lincoln’s holding regard- bound the state court's disclose the location of the and deliv- question constitutionality the ultimate police. only er it to the Not was the evidence admitting the evidence. Whether the evi- obtained, involuntarily underlying thus but the attenuated, independent dence was source, had an infringed conduct Hamilton’s sixth amendment inevitably or would have been discover- right displace to counsel. Elstad did not questions ed are of federal law. Miller v. Cf. underlying “fruits" doctrine when sixth amend- — Fenton, U.S.-,-, 445, 449, 106 S.Ct. 88 ment violations are involved. (1985) (voluntariness L.Ed.2d 405 of confession question subject of law federal properly points 7. The state also out that Mata, 597, determination); 102 S.Ct. findings questions of the state court on factual (constitutionality pretrial at 1306 identifica- presumption are to a entitled of correctness. 2254(d)); procedures, governed § tion Mata, 591, Sumner v. 455 U.S. 102 S.Ct. 71 Sullivan, 335, 342, L.Ed.2,d Cuyler v. 446 U.S. 100 S.Ct. (1982); 2254(d). 480 § 28 U.S.C. We 1708, 1714, (1980) (multiple rep- finding are therefore bound the state court’s Williams, counsel); resentation Brewer v. were aware of Maxine Hamil- 1232, 1241, 51 potential prior ton’s as a witness (1977) (waiver right). L.Ed.2d 424 of counsel any police occurrence misconduct since Testifying contempt executing under threat of cannot home warrant, the search before expression willing cooper- deemed an she was be aware that Reed had been coerced Scios, cooperating into police. ation. See United States v. 590 F.2d with the That she (D.C.Cir.1978)(decision may done testify have so does not alter analy- our sis, product of coercion however. She did tell them when made under that Reed brought contempt); a suitcase into the threat v. house United States Houltin, that she (5th Cir.1978) had taken it 566 F.2d “somewhere.” The police report (Wisdom, J., gave indicates that she dissenting) (testimony them under information, however, coercive); after the contempt obviously threat of cf. they told her already Stevens, knew Reed 612 F.2d States there, had hidden the suitcase (10th Cir.1979) information (testimony voluntary illegal obtained Hamilton’s cooperated when witness testified he out Again, confession. these circumstances change lifestyle). a desire to suggest exploitation a direct of Reed’s con- Further, played misconduct fession in securing Maxine’s statement. obtaining crucial role Maxine’s initial ofOne the officers also stated that Maxine cooperation. compliance with told him the substance of Reed’s 5 a.m. officers, plainly the result of their mis- confession to her at that time. Maxine conduct, “leverage” gain was used as vigorously telling this, denied the officers her assistance. See United States v. Ru event, however. In any given strong (9th balcava-Montoya, 597 F.2d showing in this case of the coercion neces- Cir.1978) (witnesses directly confronted sary compel testify, Maxine to such an yielded by search); cf significance admission is of minimal Miller, United States question ultimate of the voluntariness of (5th Cir.1982) (no evidence that used testimony. her illegally seized in questioning wit- analysis proximity Our of the link nesses); Brookins, United States v. illegally between the obtained confession (5th 1037, Cir.1980) (same). F.2d willingness and Maxine Hamilton’s coop- fully cooperative Maxine became with the erate is also unaffected the fact that the police only appeared when Reed at her police were aware of identity po- her officers, doorstep, accompanied by the tential as a witness before misconduct requested investiga- that she assist Supreme occurred. The Iowa Court and help tion because the had offered to the district court below relied on the offi- promise him. The officer’s initial of lenien- prior knowledge cers’ identity of her cy, together promises with the same made involvement in Reed’s in holding activities Nystrom, plainly to Diane motivated Hamil- testimony her majority admissible.8 The plea cooperate ton’s to his mother that she adopt now this rationale. With all due fully police. illegal with the trip in respect, an complete such is a dis- opportunity turn created the for Hamilton principles tortion of the laid down in Cec- request to make the face-to-face to his Certainly colini. the extent of such inde- mother and without the advice of counsel. pendent knowledge may be a factor in eval- suggest “close, These circumstances di- uating the causal connection between her illegal rect link between the [conduct] illegal and the e.g., conduct. See given testimony” ultimately Maxine Leonardi, 752; 623 F.2d at United States Rubalacava-Montoya, Hamilton. 597 F.2d 639, (3d Cir.1982); Schaefer, v. 691 F.2d at 143. Celia, United States v. 568 F.2d may (9th Cir.1977). It is true that Maxine Hamilton 1286-87 That her divulged discovered, however, have some information incrimina- had been does not ting Reed when the were in her mean that the substance her testimo- of gained by promise leniency 8. This information was fore the occurred. portion of Hamilton’s statement made be- it, willingness give testimony. such valuable In such and her circum- ny, Ceccolini, 435 stances, been secured. See suggests likewise Ceccolini that even will- 276-80, 98 at 1060-62. Given U.S. at may be inadmissible. See strength of of the involun- the evidence Ceccolini, 435 U.S. at 276 n. 98 S.Ct. at testimony, tariness of Maxine Hamilton’s (voluntariness may differently 1060 n. 4 be potential prior her identification as a wit- weighed illegal engaged when conduct is given weight.9 ness should be little specific purpose discovering po- for the requires consideration of Ceccolini also witnesses). Moreover, tential illegal con- length of time between the recently Court has noted that an assess- duct, cooperate, and the the decision to flagrancy ment of the misconduct evaluating at trial in actual important step evaluating is an the de- testimony. of a witness’s voluntariness terrent effect of exclusion. United States goes probability This consideration Leon, v. long span of time between these It could not have the witness a chance for events afforded escaped the officers that Hamilton would indicating extended reflection that the tes- convey coopera- the same enthusiasm for given product timony ultimately tion to his mother when met free choice. See excursion that he himself 1061; Mergist, United States promises showed as a result of their Cir.1984); (5th 738 F.2d hold, therefore, leniency. We would for all (9th Hooton, States Cir.1981). reasons, of the above the ultimate In this there over a year lapse three the time Maxine purposes between exclusionary rule would be wrongfully coop- Hamilton was induced to Maxine served exclusion of subpoenaed her erate and the time of testi- unwilling testimony.10 mony. might long reason that One We next turn the issue of the admissi- delay supports an inference that considera- bility testimony. of Paul Lincoln’s His tes- tions unrelated to misconduct timony brought that Reed established dispel original intervened to her determina- large quantity into the However, protect tion to her son. there house, phone that Maxine had received a nothing exists in the record to demonstrate night, in call from Reed the middle of the any change in such her attitude. and that he and Maxine had delivered the factor, Finally, po- the last Ceccolini marijuana to Ann Morrison. The Iowa Su- engaging improper lice in the motivation preme concluded that Paul Lincoln’s Court conduct, weighs in also favor exclusion. admissible, since his testimony was promises to induce Hamilton’s made potential value as a witness were dis- confession, and the dis- officers’ blatant Hamilton, through covered Maxine not the regard request of Hamilton’s counsel’s not dispute police misconduct. We do question to appear him further to have legally identity, been large part discovering directed in discovered his right agree exploit 9. We thus cannot state does not have the with the district court’s degree view that the gained of free will exercised in violation of an accused’s evidence testifying Maxine Hamilton in must be deemed guarantees. constitutional irrelevant. The district court considered such inquiry inappropriate specu- an an invitation to reasons, reject same we would 10. For the However, subjective lation into states of mind. testimony contentions that her was ad- state’s it seems clear that the factors set forth in Cec- under the source or inev- missible evaluating admissibility colini for of her discovery exceptions exclusionary itable Further, testimony require inquiry. such an we cooperation Our conclusions that her was rule. inextricably agree evaluating also do not motivation underlying linked with the miscon- principle "run would counter to the ancient testimony that her ultimate was duct and right public every person’s law that the has a application excep- preclude these coerced evidence,” as the district court believed. We testimony. to her own tions greater proposition consider of relevance the again difficulty marijuana find we the admis- order to induce but Maxine Hamil- testimony speak. sion of his under Ceccolini. ton and Lincoln to This information directly came Reed Hamilton’s con- surface, On the the circumstances sur- fession no and was doubt the kind of evi- rounding testimony suggest Paul Lincoln’s dence the were motivated to uncover persuasive admitting reasons for more in making promises to Hamilton in the Maxine Hamilton’s testimo- than place. circumstances, first Under these is, ny. There Lincoln’s “evidence where the misconduct arose from a completely uncooperative [he] * * * just desire to find the sort of evidence originally when discovered but later ultimately through adduced Lincoln’s testi- changed supplied nec- his attitude and mony, significance of the witness’s essary information.” United States v. willingness testify stated is further di- 179, (5th Cir.1983) Parker, 722 F.2d minished. See atU.S. 276 n. Marder, (quoting United States 4, 98 S.Ct. at 1060 n. 4. We therefore 1192, (5th Cir.1973)). He did state at would hold that Paul Lincoln’s testifying willingly, that he was trial was also inadmissible fruit of the unconsti- that he would have testified the first tutional conduct.11 lawyer him not except trial that his “asked to.” Finally, presents the state no evidence that, suggesting absent the testimony of willingness testify, A stated witness’s Lincoln, Maxine Hamilton or Paul Ann however, just one of the factors to be Morrison would have been identified or considered under In all other Ceccolini. come forward as a Nor witness. is there respects, Paul Lincoln’s was de- evidence that the would have or given rived and was under circumstances could have located the and un- surrounding identical to the circumstances covered sufficient foundational evidence testimony. Maxine Hamilton’s Like Max- linking it to Hamilton and the scene of the ine he testified under sub- permit crime to its admission at trial. poena having spent at the second trial after sum, we would hold that all of the chal- in jail contempt refusing time for lenged testimony physical testify at first trial. Lincoln did state should been excluded and improp- have trial at the second would have told erly admitted. anything they officers wanted to investigation. know the initial Moreover, given that this unconstitution- However, po- the record discloses that the ally improperly obtained evidence was ad- question lice did Lincoln when exe- mitted, its use at trial was not harmless cuted the search and that he warrant was beyond Chapman a reasonable doubt. See cooperative even less than was Maxine California, 386 U.S. accompa- Hamilton at that time. Lincoln (1967); Anderson v. nied Maxine to retrieve the and Nelson, gave his police only statement to the after (1968); Bennett, Stump L.Ed.2d 81 Hamilton, Nystrom’s request, sought (8th Cir.1968). 111, 121 F.2d The state Thus, cooperation. mother’s the nexus be- produced tending considerable evidence tween the conduct and Lincoln’s co- Pappas that Hamilton at the show was operation compelling is at least as in his shootings residence near the time of the case as it is in Maxine Hamilton’s. Pappas drug sup- and that was Hamilton’s plier. undisputed It was also

Further, trial the conduct of the had seeking marijuana used substantial amounts evidence about the was During day day Pappas of and particularly flagrant. cocaine after execu- warrant, killed, one and Larson were he had a tion the search of the offi- specifically gun to the used to kill them. cers said knew about the similar one argue, inevitably con- source or would have been dis- 11. The state does not nor could we dent clude, indepen- had an that Lincoln’s covered. However, placed re- state considerable morning early confes-

liance on Hamilton’s that Lin- establishing

sion to his mother Pappas

coln and Larson. The had killed fact, of his

prosecutor, near the end

closing argument jury reminded the you your person

the “one don’t lie to

mother.” ruling majority,

Contrary to the suitcase of was crucial theory prosecutor motive. The

state’s

plainly sought jury convince the get killed

drugs. piv- Finally, played proof robbery role in

otal the state’s that a occurred, underlying felony sup-

porting felony for murder conviction Cathy key Larson. death of Given physical challenged testimony

role the in the played prosecution’s

evidence

we error would hold that constitutional admitting not harm- beyond

less a reasonable doubt. reasons,

For these we would vacate remand the

conviction and cause grant

district court the writ unless a petitioner provided

new trial for the period

within a reasonable of time. Light, Friday,

Robert V. Eldredge & Clark, Rock, Ark., Little Braun, Richard J. Gracey, Maddin, Bird, Nashville, America, UNITED Cowan & Appellee, STATES of Tenn., appellant. for Frederick Powers, John Freilicher and J. CO., INC., BEN Appellant. M. HOGAN III, Appellate Section, Div., Antitrust U.S. No. 84-1757. Justice, Dept, of Washington, D.C., Mary Sewell, T. Dept, Coleen Justice, Appeals, States Court of Dallas, Tex., appellee. Eighth Circuit. Jan. 1987. McMILLIAN, Before Judge, Circuit Rehearing Rehearing En Banc BRIGHT, Senior Judge, Circuit 30, 1987. Denied March BOWMAN, Judge. Circuit opinion, a divided this court reversed Hogan

the conviction of Ben Company M. on one count of conspiracy restrain trade Act, violation Sherman 15 U.S.C. (1982) its affirmed conviction on § three associated mail fraud counts. Unit-

Case Details

Case Name: Reed Wayne Hamilton v. Crispus Nix, Warden, and Attorney General of the State of Iowa

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 12, 1987

Citation: 809 F.2d 463

Docket Number: 84-2089

Court Abbreviation: 8th Cir.