Mahurin v. State

¶1(dissenting).

¶2I respectfully dissent. An examination of the record of this case compels me to believe that the trial court’s conclusions of law based upon its findings of fact are clearly erroneous and should be reversed.

¶3The trial court found Mahurin’s testimony to be totally unreliable and cited as examples Mahurin’s account of a trip to Illinois where he claimed he was shot in the back and his account of the refusal of the trial court at his trial to permit him to sit inside the bar of the court, at the counsel table with his lawyers. I have no quarrel with the rejection of Mahurin’s testimony with respect to these alleged incidents. However, the trial court and this court have ignored the one determinative issue herein presented.

¶4The trial court found that Mahurin had not been beaten. There is no evidence to support this finding. Mahurin’s jailers each categorically denied beating him or ever witnessing his being beaten. Neither these denials nor the rejection of Mahur-in’s testimony explain the hospital record1 which shows: (1) that Mahurin had blood in his urine prior to his admission to the *38hospital and (2) that he had suffered a contusion of the rectus abdominus muscle, injuries which caused Mahurin’s hospitalization.2

¶5The following undisputed and unexplained facts vitiate the constitutional admissibility of the confession:

¶61. Mahurin’s injuries and resulting hospitalization, during the time he was in the close custody of the sheriff and his deputies in the small St. Francois County jail. The sheriff admitted he was responsible for the jail and as he put it, “ … nothing went on that I didn’t approve it, I can assure you of that.” Mahurin, during the time he was a prisoner, unquestionably was the victim of violence. The kind of injuries he had were not self-inflicted. A man cannot kick himself in the stomach.

¶72. The alacrity with which he was taken to circuit court once he confessed, contrasted with his long incarceration prior thereto — 54 days altogether from arrest to first appearance in circuit court, with the confession being made on the 53rd day, followed by a plea of not guilty and a trial lasting eight days.

¶83. The continuing conversations between Mahurin and Sheriff Smallen, many of them at night, together with the exhortations of the sheriff for Mahurin “to make a clean breast of it and confess”, after he had been indicted and despite the fact the sheriff was aware that Mahurin had been consulting with a lawyer, contra to the standards established in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 and State v. Witt (Mo. Sup.), 422 S.W.2d 304. The sheriff’s objective was to convict Mahurin out of his own mouth, counsel or not, and if the primary aim of the law is to secure a conviction, then he was justified. But fortunately for all of us, the rights of an accused cannot be sacrificed to obtain a conviction.

¶9To be admissible into evidence a confession must be voluntary. Voluntariness is not a fact question, but a conclusion of law, Hector v. State, 2 Mo. 166. Our old cases examined voluntariness upon the theory that involuntary confessions were too untrustworthy to be admitted into evidence. It therefore followed that a confession would be admissible even though there had been a prior confession which was involuntary if the state could prove the influence which produced the first confession did not affect the second, State v. Brown, 73 Mo. 631; State v. Ellis, 294 Mo. 269, 242 S.W. 952; State v. Williamson, 343 Mo. 732, 123 S.W.2d 42. Under these cases Mahurin’s confession would be voluntary. His injuries which gave rise to his hospitalization occurred near mid-April (he was hospitalized from April 21 to April 23) ; there is no evidence of physical abuse after his hospitalization. His confession was made approximately two weeks later on May 8th. Today the concept of voluntariness is a much broader concept. The theory underpinning the older concept has been abandoned, 3 Wigmore, Evidence, Sec. 826 (Chadbourn Rev. 1970) at p. 350. The modern conception of voluntariness is a more complex legal notion inculcating several factors — some focus on the mental-physiological state, some on the faithful observation of the defendant’s rights, and some upon the conduct of those to whom the confession is made. In cases prior to Miranda the third factor becomes the most important, Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242; Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 ; 3 Wigmore, Evidence, supra, at p. 351; ALI Model Code of Pre-Arraignment Procedure, T.D. No. 1, p. 167. This is based upon the conviction that ours is an accusatorial, not an inquisitorial, sys*39tem of justice, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, proceeding on the assumption that those in whose hands the administration of justice is placed are bound by the law, Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037. Viewed in this light, proof of illegal, physical violence against the defendant would make any confession constitutionally involuntary while in the custody of those responsible for the violence, regardless of the temporal relation of the violence and confession. Thus Mahurin’s testimony as a factor in determining the voluntariness of his confession is less significant than other evidence which is inconsistent with a voluntary confession, Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634.

¶10It should be added that this is not a case where the defendant has waited 20 years or more to attack his conviction, until witnesses are dead and memories dim. Ma-hurin’s first application for a writ was lodged here in June, 1950, about eight months after his conviction. He has thirty files in this court over the years, raising basically the same issue as raised in the present motion and setting forth basically the same facts, albeit his later petitions and motions evidence what to a layman seems like paranoia and contain some wild allegations. Not until the present did Ma-hurin ever succeed in getting an eviden-tiary hearing on these allegations he has been raising for 20 years, although in 1951, this court did examine the record proper in a writ of error, State v. Mahurin, Mo., 240 S.W.2d 110.

¶11For the reasons set forth above, I would reverse the order of the trial court overruling Mahurin’s 27.26 motion and would set aside the judgment of conviction and order a new trial, based upon the conclusion that the confession admitted into evidence at Mahurin’s 1949 trial was not voluntary.

¶12APPENDIX

¶13BONNE TERRE HOSPITAL ASSOCIATION

¶14Hospital No. 26575 Room No. 208 History Taken By G. L. Watkins, MD

¶15Name Mr. Wm. C. Mahurin M S W Referring Physician

¶16Address Farmington, Mo. R.R. 2 Age 53 Sex Male

¶17Occupation Farming Admitted 4-21^19, 12:30 pm Discharged 4 — 23—49

¶18Diagnosis 27325-402 Contusion of the rec-tus abdominus muscle

¶19Admission Note:

¶20This is a 53 year old male, a patient of Dr. G. L. Watkins, Sr., who has been incarcerated in the County jail. He was first seen by Dr. Watkins, Sr. several days ago, at which time it was stated he was kicked in the lower abdomen and had been passing bloody urine since, and having a good deal of pain in this region. A urine specimen was brought to the office, and it contained a considerable amount of blood. The patient has been continually complaining of pain, and he is admitted to the hospital for study and observation.

¶21Past History:

¶22Patient states that several years ago at the Deaconess Hospital because of a back pain, he had some oil injected into his spine for study to rule out the possibility of a disc. He states that he was not operated.

¶23Physical Examination:

¶24Reveals a well developed, well nourished, 53 year old male, who seems to be in a considerable amount of distress. He is holding his abdomen and twisting his head from side to side, complaining of abdominal pain and right flank pain.

¶25Eye, ear, nose and throat: Essentially negative.

¶26*40Mouth: There is fair oral sepsis, gums are in fair condition, tongue protrudes in the midline without tremor.

¶27Neck: Trachea is in midline; thyroid is not palpable; there is no cervical adenopa-thy.

¶28Chest: Symmetrical; expansion is equal; lungs are clear to percussion and auscultation.

¶29Heart: Sounds are of good quality; there are no murmurs; rhythm is regular; the heart does not seem enlarged to percussion. The pulse is full and pounding at 84 per minute.

¶30Abdomen: There is some muscle guard in the lower abdomen, which at times is felt can be broken through. There are no definite masses. He complains of tenderness all over the lower abdomen and some in the right flank region. There are no external bruises in this area.

¶31External genitalia: Normal male.

¶32Rectal examination: Negative.

¶33Extremities: Symmetrical.

¶34Reflexes: Physiological.

¶35Impression:

¶36Possible kidney or bladder injury.

¶37G. L. Watkins, MD

¶38Stimmary :

¶3927325-402 B Contusion of rectus abdomi-nus muscle.

¶40Treatment:

¶41Patient was catheterized on admission and the urine was clear both grossly and microscopically, though somewhat concentrated. A.K.U.B. film showed no evidence of free air in the abdomen, though there was some lower distension. A catheter was inserted into his bladder per urethra and a cystogram was taken, which was negative for any evidence of perforation of the bladder. In the absence of any positive findings, it was assumed that whatever bladder injury he may have sustained from this blow at the present time, at least, has healed, and the patient was discharged.