Norman Stumes v. Herman Solem, 752 F.2d 317 (8th Cir. 1985). · Go Syfert
Norman Stumes v. Herman Solem, 752 F.2d 317 (8th Cir. 1985). Cases Citing This Book View Copy Cite
“the nearly five-hour break between the interviews does not of itself invalidate the initial waiver. the significance of this elapsed time must be assessed in view of knowledge and conduct and other relevant circumstances.”
111 citation events (37 in the last 25 years) across 37 distinct courts.
Strongest positive: State v. Mattox (kan, 2005-12-09)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) State v. Mattox (2×) also: Cited as authority (rule)
Kan. · 2005 · quote attribution · 1 verbatim quote · confidence high
the nearly five-hour break between the interviews does not of itself invalidate the initial waiver. the significance of this elapsed time must be assessed in view of knowledge and conduct and other relevant circumstances.
discussed Cited as authority (rule) State v. Schultz
Kan. Ct. App. · 2024 · confidence medium
See United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (24-hour interval between waiver of Miranda rights and defendant's statement to law enforcement was reasonable); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (5-hour interval between waiver of Miranda rights and defendant's statement to law enforcement was reasonable); People v. Gonzalez, 5 A.D.3d 696, 697 , 774 N.Y.S.2d 739 (2004) (11.5 hours after first questioning defendant was reasonable).
discussed Cited as authority (rule) Eduardo Navarette v. William Sullivan
9th Cir. · 2019 · confidence medium
See United States v. Wyatt, 179 F.3d 532, 534, 538 (7th Cir. 1999); Weeks v. Angelone, 176 F.3d 249, 267-69 (4th Cir. 1999), aff’d on other grounds, 528 U.S. 225 (2000); United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998); Kelly v. Lynaugh, 862 F.2d 1126, 1130-31 (5th Cir. 1988); United States v. Pugh, 25 F.3d 669 , 672- 73 (8th Cir. 1994); Stumes v. Solem, 752 F.2d 317, 321 (8th Cir. 1985).
discussed Cited as authority (rule) State of Arizona v. Esgardo Javier Nevarez
Ariz. Ct. App. · 2014 · confidence medium
We upheld the admission of the evidence, finding that “appellant’s limited invocation of the right to counsel did not operate as a request for counsel for all purposes.” Id. at 22 , 754 P.2d at 351 , citing Connecticut v. Barrett, 479 U.S. 523 , 107 S.Ct. 828 , 93 L.Ed.2d 920 (1987) (oral statements improperly suppressed where defendant asked to consult counsel before making written statement); see also Bruni v. Lems, 847 F.2d 561, 564 (9th Cir.1988) (finding partial waiver where defendant stated he would not answer questions “without my attorney” but would “answer those I see fit�…
discussed Cited as authority (rule) United States v. Martinez
E.D.N.Y · 2013 · confidence medium
Patton v. Thieret, 791 F.2d 543, 547 (7th Cir.) (A forty minute interval between the Miranda warning and the suspect’s statement did not require readministration of warning), cert. denied, 479 U.S. 888 , 107 S.Ct. 284 , 93 L.Ed.2d 259 (1986); Evans v. McCotter, 790 F.2d 1232, 1238 (5th Cir.) (finding a voluntary waiver of Miranda rights where the suspect had been twice advised of rights during a three hour period, even though warnings were not read-ministered after a half hour break and change of location), cert. denied, 479 U.S. 922 , 107 S.Ct. 327 , 93 L.Ed.2d 300 (1986); Stumes v. Solem, …
discussed Cited as authority (rule) Adams v. State
Miss. Ct. App. · 2011 · confidence medium
United States v. Clay, 408 F.3d 214, 221-22 (5th Cir.2005); Mitchell v. Gibson, 262 F.3d *438 1036, 1057 (10th Cir.2001); Stumes v. Solem, 752 F.2d 317, 320-21 (8th Cir.1985); United States v. Weekley, 130 F.3d 747, 751 (6th Cir.1997).
discussed Cited as authority (rule) Treesh v. Bagley (2×)
6th Cir. · 2010 · confidence medium
Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.1986) (Miranda rights did not need to be reread after forty minute lapse); Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir.1986) (rights voluntarily waived where suspect was twice advised of rights over a three-hour period notwithstanding change of interview locations); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985) (five-hour interval between first and second interviews did not invalidate suspect’s waiver given before the first interview); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir.1984) (change in interrogators and three-hour la…
discussed Cited as authority (rule) United States v. Nguyen
8th Cir. · 2010 · confidence medium
We found, in Stumes v. Solem, 752 F.2d 317, 320 (8th *375 Cir.1985), that a delay of up to six and a half hours between Miranda warnings and interrogation of an intelligent and articulate adult who had significant experience with the criminal justice system did not render the waiver of Miranda rights ineffective.
discussed Cited as authority (rule) United States v. Edwards
7th Cir. · 2009 · confidence medium
Henne v. Fike, 563 F.2d 809, 813-14 (7th Cir.1977) (per curiam) (nine hours); People v. Dela Pena, 72 F.3d 767, 769-70 (9th Cir.1995) (nearly fifteen hours); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985) (nearly five hours); Jarrell v. Balkcom, 735 F.2d 1242, 1253-54 (11th Cir.1984) (three hours).
discussed Cited as authority (rule) United States v. Anthony Edwards
7th Cir. · 2009 · confidence medium
Henne v. Fike, 563 F.2d 809, 813-14 (7th Cir. 4 No. 08-1124 1977) (per curiam) (nine hours); People v. Dela Pena, 72 F.3d 767, 769-70 (9th Cir. 1995) (nearly fifteen hours); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (nearly five hours); Jarrell v. Balkcom, 735 F.2d 1242, 1253-54 (11th Cir. 1984) (three hours).
discussed Cited as authority (rule) State v. Ransom
Kan. · 2009 · confidence medium
“See also United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (1-day interval between waiver of Miranda rights and defendant’s statement to law enforcement was not unreasonable); Ballard v. Johnson, 821 F.2d 568, 571-72 (11th Cir. 1987) (3- to 4-hour gap between waiver of Miranda rights and third conversation in another city was not unreasonable); Evans v. Cotter, 790 F.2d 1232 (5th Cir. 1986) (several-hours’ gap between waiver of Miranda rights and confession not unreasonable); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) *708 (5-hour interval between waiver of Miranda …
discussed Cited as authority (rule) United States v. Mims
D. Minnesota · 2008 · confidence medium
“The determination of whether an accused has knowingly and voluntarily waived his Miranda rights depends on all the facts of each particular case.” Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985) (citing Fare v. Michael C., 442 U.S. 707, 724-25 , 99 S.Ct. 2560, 2571-72 , 61 L.Ed.2d 197 (1979)).
discussed Cited as authority (rule) United States v. Brown
D. Minnesota · 2007 · confidence medium
“The determination of whether an accused has knowingly and voluntarily waived his Miranda rights depends on all the facts of each particular case.” Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985) (citing Fare v. Michael C., 442 U.S. 707, 724-25 , 99 S.Ct. 2560, 2571-72 , 61 L.Ed.2d 197 (1979)).
cited Cited as authority (rule) State v. Marshall
Conn. App. Ct. · 2004 · confidence medium
Ed. 2d 281 (1986); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.) (five hours), cert. denied, 471 U.S. 1067 , 105 S. Ct. 2145 , 85 L.
discussed Cited as authority (rule) United States of America v. Ramiro Astello (2×)
8th Cir. · 2001 · confidence medium
See, e.g., Brown v. Caspari, 186 F.3d 1011, 1015 (8th Cir. 1999); Stumes v. Solem, 752 F.2d 317, 322 (8th Cir. 1985). 53 Ordinarily, "to invoke one's right to remain silent, one must unequivocally express his desire to remain silent." Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001) (citing United States v. Al-Muqsit, 191 F.3d 928, 936 (8th Cir. 1999)); United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995) ("clear, consistent expression of a desire to remain silent" required) (citation omitted).
cited Cited as authority (rule) United States v. Ramiro Astello
8th Cir. · 2001 · confidence medium
See, e.g., Brown v. Caspari, 186 F.3d 1011, 1015 (8th Cir. 1999); Stumes v. Solem, 752 F.2d 317, 322 (8th Cir. 1985).
discussed Cited as authority (rule) Weeks v. Angelone
4th Cir. · 2000 · confidence medium
See, e.g., United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998) (finding no Mosley violation where officer asked sus- pect whether he remembered rights that were read to him earlier and 26 suspect answered in affirmative); Kelly v. Lynaugh, 862 F.2d 1126, 1131 (5th Cir. 1988) (finding that failure to give new Miranda warn- ings did not establish Mosley violation because in light of two oral warnings and one written warning given earlier, it would be difficult to conclude that suspect had forgotten his Miranda rights); Stumes v. Solem, 752 F.2d 317, 319-22 (8th Cir. 1985) (finding tha…
examined Cited as authority (rule) Evans v. Rogerson (4×) also: Cited "see"
S.D. Iowa · 1999 · confidence medium
See Finch, 557 F.2d at 1236; Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.1984); United States v. Udey, 748 F.2d 1231, 1241-42 (8th Cir.1984); Stumes, 752 F.2d at 322 (interview number three); United States v. House, 939 F.2d 659 .
discussed Cited as authority (rule) Mitchell v. State
Wyo. · 1999 · confidence medium
Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.), cert. denied 479 U.S. 888 , 107 S.Ct. 284 , 93 L.Ed.2d 259 (1986); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985); Bush v. State, 461 So.2d 936, 938-39 (Fla.1984), cert. denied 475 U.S. 1031 , 106 S.Ct. 1237 , 89 L.Ed.2d 345 (1986); U.S. v. Osterburg, 423 F.2d 704 (9th Cir.), cert. denied 399 U.S. 914 , 90 S.Ct. 2216 , 26 L.Ed.2d 571 (1970); Maguire v. U.S., 396 F.2d 327, 331 (9th Cir.1968), cert. denied 393 U.S. 1099 , 89 S.Ct. 897 , 21 L.Ed.2d 792 (1969).
cited Cited as authority (rule) United States v. Willie Boyd
8th Cir. · 1999 · confidence medium
“The determination of whether an accused has knowingly and voluntarily waived his Miranda rights depends on all the facts of each particular case.” Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985).
cited Cited as authority (rule) No. 98-3583
8th Cir. · 1999 · confidence medium
"The determination of whether an accused has knowingly and voluntarily waived his Miranda rights depends on all the facts of each particular case." Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985).
discussed Cited as authority (rule) Lonnie Weeks, Jr. v. Ronald J. Angelone, Director of the Virginia Department of Corrections
4th Cir. · 1999 · confidence medium
See, e.g., United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998) (finding no Mosley violation where officer asked suspect whether he remembered rights that were read to him earlier and suspect answered in affirmative); Kelly v. Lynaugh, 862 F.2d 1126, 1131 (5th Cir.1988) (finding that failure to give new Miranda warnings did not establish Mosley violation because in light of two oral warnings and one written warning given earlier, it would be difficult to conclude that suspect had forgotten his Miranda rights); Stumes v. Solem, 752 F.2d 317, 319-22 (8th Cir.1985) (finding that failure…
discussed Cited as authority (rule) United States v. Boyd Dean Weekley
6th Cir. · 1997 · confidence medium
Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.) (Miranda rights did not need to be reread after forty minute lapse), cert. denied 479 U.S. 888 , 107 S.Ct. 284 , 93 L.Ed.2d 259 (1986); Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir.) (rights voluntarily waived where suspect was twice advised of rights over a three-hour period notwithstanding change of interview locations), cert. denied 479 U.S. 922 , 107 S.Ct. 327 , 93 L.Ed.2d 300 (1986); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.) (five-hour interval between first and second interviews did not invalidate suspect’s waiver given befor…
discussed Cited as authority (rule) State v. Morgan
Iowa · 1997 · confidence medium
See United States v. Johnson, 56 F.3d 947, 955 (8th Cir.1995) (“clear, consistent expression of a desire to remain silent” is necessary); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985) (refusal to take polygraph examination is not an invocation of the right to silence); State v. Whitsel, 339 N.W.2d 149, 152 (Iowa 1983) (discussion of potential need for an attorney not an invocation of right to silence).
discussed Cited as authority (rule) Norfolk v. Houston
D. Neb. · 1995 · signal: cf. · confidence medium
Cf. Stumes v. Solem, 752 F.2d 317, 319-22 (8th Cir.) (inculpatory statements ultimately held admissible where officer told defendant he would “feel better” if he talked about the crime), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985).
discussed Cited as authority (rule) Yung v. State (2×)
Wyo. · 1995 · confidence medium
Brown v. State, 661 P.2d 1024, 1031 (Wyo.1983); United States v. Nordling, 804 F.2d 1466, 1471 (9th Cir.1986); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985); State v. Henry, 176 Ariz. 569, 577 , 863 P.2d *1034 861, 869 (1993).
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Gabriel Valdez ANDAVERDE, Defendant-Appellant
9th Cir. · 1995 · confidence medium
Patton v. Thieret, 791 F.2d 543, 547 (7th Cir.) (forty minute interval between Miranda warning and suspect’s statement did not require readministration of warning), cert. denied, 479 U.S. 888 , 107 S.Ct. 284 , 93 L.Ed.2d 259 (1986); Evans v. McCotter, 790 F.2d 1232, 1238 (5th Cir.) (finding voluntary waiver of Miranda rights where suspect had been twice advised of rights during three hour period, even though warnings were not readministered after a half hour break and change of location), cert. denied, 479 U.S. 922 , 107 S.Ct. 327 , 93 L.Ed.2d 300 (1986); Stumes v. Solem, 752 F.2d 317, 320 (…
discussed Cited as authority (rule) State v. Goforth
Mo. Ct. App. · 1994 · confidence medium
Minnick v. Mississippi, 498 U.S. 146 , —, 111 S.Ct. 486, 492 , 112 L.Ed.2d 489 (1990); Stumes v. Solem, 752 F.2d 317, 322 (8th Cir.), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985); State v. Bittick, 806 S.W.2d 652, 655 (Mo. banc 1991); State v. Owens, 827 S.W.2d 226, 227 (Mo.App.1991).
cited Cited as authority (rule) United States v. Jose Leon Barahona
8th Cir. · 1993 · confidence medium
Dougherty, 810 F.2d at 773 ; Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985); Fare, 442 U.S. at 724-25 , 99 S.Ct. at 2571-72 .
discussed Cited as authority (rule) State v. Mease
Mo. · 1992 · confidence medium
Minnick v. Mississippi, 498 U.S. 146 , -, 111 S.Ct. 486, 492 , 112 L.Ed.2d 489 (1990); Stumes v. Solern, 752 F.2d 317, 322 (8th Cir.), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985); State v. Bittick, 806 S.W.2d 652, 655 (Mo. banc 1991); State v. Owens, 827 S.W.2d 226, 227 (Mo.App.1991).
discussed Cited as authority (rule) Whitmore v. Lockhart
E.D. Ark. · 1992 · confidence medium
See United States v. Griffin, 922 F.2d 1343, 1357 (8th Cir.1990); Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir.1989), ce rt. denied, 496 U.S. 909 , 110 S.Ct. 2595 , 110 L.Ed.2d 276 (1990); Stumes v. Solem, 752 F.2d 317, 322-23 (8th Cir.), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985).
discussed Cited as authority (rule) David L. Butzin v. Frank W. Wood, Warden of Minnesota Correctional Facility, Oak Park Heights and the State of Minnesota (2×)
8th Cir. · 1990 · confidence medium
Accordingly, we have held that statements volunteered by a suspect during the course of routine arrest procedures were not the products of interrogation, United States v. Webster, 769 F.2d 487, 491-92 (8th Cir.1985), and that custodial statements made on the suspect's own initiative are not subject to the safeguards of Miranda, Stumes v. Solem, 752 F.2d 317, 322-23 (8th Cir.1985).
cited Cited as authority (rule) United States v. Smith
D. Del. · 1988 · confidence medium
Stumes v. Solem, 752 F.2d 317, 320 (8th Cir), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985).
cited Cited as authority (rule) Gandia v. Hoke
E.D.N.Y · 1986 · confidence medium
Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir.1986); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985).
discussed Cited "see" Commonwealth v. Hill
Pa. Super. Ct. · 2012 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317 (8th Cir.1985) (suspect invoked right to counsel during polygraph examination by refusing to take exam without attorney but did not by this refusal invoke right to counsel as to the non-polygraph questioning); United States v. Thierman, 678 F.2d 1331 (9th Cir.1982) (suspect may selectively waive rights by responding to certain questions but not others).
cited Cited "see" GARCIA-DORANTES v. Warren
E.D. Mich. · 2011 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.1985) (five-hour interval between the first and the second interview did not invalidate the suspect’s waiver given before the first interview). 2.
cited Cited "see" United States v. Rodriguez-Preciado
9th Cir. · 2005 · signal: see · confidence high
See id. (citing Stumes v. Solem, 752 F.2d 317 (8th Cir. 1985)).
discussed Cited "see" United States v. Antonio Rodriguez-Preciado, AKA Tony Rodriguez-Preciado (2×)
9th Cir. · 2005 · signal: see · confidence high
See id. (citing Stumes v. Solem, 752 F.2d 317 (8th Cir.1985)). 3 Though the record in this case is not explicit, it appears that the Miranda warning was administered to Rodriguez-Preciado at the Satellite Motel shortly after 9:00 p.m. on June 26, and that the interrogation on June 27 began shortly after 1:15 p.m.
cited Cited "see" United States v. Rodriguez-Preciado
9th Cir. · 2005 · signal: see · confidence high
See id. (citing Stumes v. Solem, 752 F.2d 317 (8th Cir. 1985)).
discussed Cited "see" State v. Mack
Ohio · 1995 · signal: see · confidence high
See. e.g., Stumes v. Solem (C.A.8, 1985), 752 F.2d 317 (five hours); Evans v. McCotter (C.A.5, 1986), 790 F.2d 1232 (one to one and one-half hours). 16 January Term, 1995 {¶ 55} Accordingly, we reject appellant’s ninth proposition of law.
discussed Cited "see" United States v. Vasquez
M.D. Penn. · 1995 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317, 321 (8th Cir.) (six and one-half hour gap between warnings and second interview did not violate Miranda because “[t]o require the police to reissue Miranda rights under these circumstances would serve no real purpose.”), cer t. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985). 9.
cited Cited "see" United States v. Atlas Norris Pugh, Jr.
8th Cir. · 1994 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317, 321 (8th Cir.), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985).
cited Cited "see" State v. Moseley
La. Ct. App. · 1991 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317 (8th Cir. 1985), cert. denied, 471 U.S. 1067 , 105 S.Ct. 2145 , 85 L.Ed.2d 502 (1985) (five-hour delay); United States ex rel.
cited Cited "see" State v. Harvey
N.J. · 1990 · signal: see · confidence high
See Stumes v. Solem, 752 F. 2d 317, 321 (8th Cir.1985) ("[W]e believe that Stumes was aware of his Miranda rights and voluntarily chose not to exercise them.
discussed Cited "see" United States v. Johnson, Richard
3rd Cir. · 1987 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317 (8th Cir.1985) (suspect invoked right to counsel during polygraph examination by refusing to take exam without attorney but did not by this refusal invoke right to counsel as to the non-polygraph questioning); United States v. Thierman, 678 F.2d 1331 (9th Cir.1982) (suspect may selectively waive rights by responding to certain questions but not others).
discussed Cited "see" State v. Hartley (2×)
N.J. · 1986 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317, 321 (8th Cir.) (“[W]e believe that Stumes was aware of his Miranda rights and voluntarily chose not to exercise them.
discussed Cited "see" State v. Hornbeck (2×)
Mo. Ct. App. · 1986 · signal: see · confidence high
See Stumes v. Solem, 752 F.2d 317, 320-21 (8th Cir.1985).
cited Cited "see, e.g." Riva v. Kirkland
9th Cir. · 2009 · signal: see, e.g. · confidence medium
See, e.g., Stumes v. Solem, 752 F.2d 317, 319-21 (8th Cir.1985). .
cited Cited "see, e.g." Riva v. Kirkland
9th Cir. · 2009 · signal: see, e.g. · confidence medium
See, e.g., Stumes v. Solem, 752 F.2d 317, 319-21 (8th Cir.1985). .
cited Cited "see, e.g." People v. Edmondson
Ill. App. Ct. · 2002 · signal: see also · confidence medium
Israel, Criminal Procedure § 6.8, at 520 (1984); see also Stumes v. Solem, 752 F.2d 317, 321 (8th Cir. 1985).
Norman STUMES, Appellant,
v.
Herman SOLEM, Appellee
81-1589.
Court of Appeals for the Eighth Circuit.
Jan 8, 1985.
752 F.2d 317
Lay, Henley, Arnold.
Cited by 88 opinions  |  Published
ARNOLD, Circuit Judge.

This case comes to this Court on remand from the United States Supreme Court. Solem v. Stumes, — U.S. —, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). In our earlier decision, 671 F.2d 1150 (1982), we applied the per se rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), to exclude confessions that Stumes made without the presence of counsel after he had invoked his right to counsel. The Supreme Court reversed, holding that the per se rule of Edwards is not retroactive and should not have been applied to bar the admission of Stumes’s confessions. Accordingly, the Court remanded for us to evaluate the admissibility of the confessions under its pre-Edwards decisions and those of this Circuit. 104 S.Ct. at 1346. Having done so, we now affirm the District Court’s denial of the petition for habeas corpus.

I.

The facts of this case were fully stated in our previous decision and will only be summarized here. In September 1973, the police in Sioux Falls, South Dakota, suspected that Norman Stumes was responsible for the death of Joyce Hoff. After receiving word that Stumes had been arrested on September 27 in Green Bay, Wisconsin, on charges of perjury and check fraud, three Sioux Falls police officers (Skadsen, Green, and Hendrick) went to Green Bay to bring Stumes back. At this time, Stumes had not yet been charged with Hoff’s death. On September 28, Stumes called his lawyer from the Green Bay jail. His lawyer instructed him not to make any statements before returning to South Dakota.

About 10:00 on the morning of October 1, Green questioned Stumes at the Green Bay Police Department. After being read his Miranda rights, Stumes stated that he understood them and did not object to speaking with the police without an attorney present. At the end of the hour-and-a-half questioning session, Green asked Stumes if he would submit to a polygraph test on the Hoff case. Stumes replied that “that is a question I’d rather not answer until I talk to [my attorney].” Questioning then stopped, but the officers told Stumes that they would return later that afternoon for further questioning.

About 4:30 that afternoon, Skadsen recommenced questioning without giving Stumes new Miranda warnings. Stumes admitted he had been in Hoff’s apartment the night of the killing and that he had had intercourse with Hoff, but he denied having anything to do with her death. Green asked Stumes whether Hoff’s death was intentional or accidental, and Stumes responded that it was accidental. Stumes then stated, “I would rather not talk about it any more at this time until I talk to my attorney, and after that I’ll give you a full statement in regards to her death.” Following this remark, at about 5:00, the questioning ended.

The following morning, the three officers and Stumes left Green Bay by car on the trip back to Sioux Falls. At the beginning of the trip Stumes was given his Miranda rights again and was asked if he was will[*319] ing to talk. He shrugged and nodded affirmatively. He was questioned intermittently about the Hoff murder. Late in the afternoon, after a 10-to-15 minute silence, Stumes had what he called “a little conflict with my emotions” and stated “that I couldn’t understand why anyone would want to kill Joyce and that the taking of a human life is so useless.” Green told him he would feel better if he “got it off his chest.” Stumes then recounted strangling Hoff after she told him that she would tell Stumes’s girlfriend that she and Stumes had slept together. After this confession, Green asked if Stumes would give a statement when he reached Sioux Falls, and pointed out to Stumes that his attorney would advise against giving such a statement. Stumes replied, “I don’t give a damn what [my attorney] says. I’m doing anything I feel like, and I’ll talk to anybody I want to.”

After arriving at the Sioux Falls jail about 6:45 that evening, Stumes was put into a cell. Shortly afterwards he called Officer Skadsen to the cell. He was sobbing and placed his head on Skadsen’s shoulder, and asked Skadsen to “tell them that I didn’t mean to kill her — that I’m not a vicious killer.”

Stumes was charged with murder. After a hearing on a motion to suppress Stumes’s confessions, the trial court denied the motion. A jury convicted Stumes of first-degree manslaughter, and sentenced him to life imprisonment. On direct appeal, the State Supreme Court remanded for a determination of whether Stumes’s statements had been voluntary. State v. Stumes, 90 S.D. 382, 241 N.W.2d 587 (1976). The trial court found they had. Stumes then filed this petition for a writ of habeas corpus in the United States District Court for the District of South Dakota, which the District Court [1] denied. Stumes v. Solem, 511 F.Supp. 1312 (D.S.D.1981).

On appeal from the District Court’s denial of habeas relief, Stumes argues that the state trial court violated his Fifth Amendment right against self-incrimination in failing to suppress the statements he made. [2] For purposes of analyzing the admissibility of these statements, we shall, divide them into four groups: the first interview (the statements made on the morning of October 1, which all parties agree were not incriminatory); the second interview (the statements made on the afternoon of October 1), the third interview (the statements made during the car trip to Sioux Falls on October 2);. and the fourth interview (the statements in the Sioux Falls jail on October 2).

II.

A. The Second Interview

The District Court held that the statements made during the second interview were inadmissible because they were made without Miranda warnings. 511 F.Supp. at 1323. However, the court found that the admission of these statements was harmless error because other evidence proved Stumes’s guilt beyond a reasonable doubt. Id. On appeal, Stumes urges that the District Court erred in finding that the admission of the second interview was harmless error. The State denies this claim and further argues as an alternative ground for affirmance that the District Court erred in holding the second interview inadmissible. It claims that the second interview was admissible despite the absence of Miranda warnings because Stumes voluntarily and knowingly waived his Fifth Amendment rights to remain silent and to have a lawyer present.

[*320] The determination whether an accused has knowingly and voluntarily waived his Miranda rights depends on all the facts of each particular case. Fare v. Michael C, 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979). These circumstances include the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461 (1938). Here the District Court concluded that Stumes had not voluntarily and knowingly waived his rights during the second interview because he was not given fresh Miranda warnings before the interview. Two considerations arguably support this conclusion: first, the second interview came nearly five hours after the first interview and nearly six-and-a-half hours after Miranda rights had been given; second, Stumes invoked his right to counsel in refusing to decide whether to take a polygraph exam.

The State argues that under the totality of the circumstances the time lag and the request for counsel as to the taking of a polygraph test did not invalidate Stumes’s initial waiver. Although this is a close question, we agree and hold that the State has met its heavy burden of showing that Stumes voluntarily and knowingly waived his rights during the second interview. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966).

The nearly five-hour break between the interviews does not of itself invalidate the initial waiver. The significance of this elapsed time must be assessed in view of Stumes’s knowledge and conduct and other relevant circumstances. As his testimony in the state court clearly reflects, Stumes is an intelligent and articulate adult. At the time of the second interview, he had already twice received his Miranda warnings (on the day he was arrested and at the beginning of the first interview), and in addition was familiar with criminal procedures from past involvement with the criminal-justice system. On the day after his arrest, three days before the second interview, he discussed his rights with his attorney, who advised him not to talk to the police. Despite this advice, Stumes voluntarily agreed to talk to the police and expressly waived his Miranda rights on the morning of October 1.

In addition, Stumes’s conduct both before and during the second interview indicates that he was fully aware of his rights. At the conclusion of the first interview, Stumes refused to decide whether to take a polygraph test without first talking to his lawyer. The police then ceased questioning and apparently did not raise this issue again at a later interview. In both the first and second interviews Stumes indicated his knowledge of his right to remain silent by selectively choosing which questions to answer. Further, in asserting his right to counsel at the end of the second interview, after he had stated that Hoff’s death was accidental, Stumes again demonstrated that he was aware of his right to counsel and his right to remain silent.

Stumes’s refusal to agree to a polygraph test without first talking to his counsel also does not warrant a finding that he failed to voluntarily and knowingly waive his Miranda rights. His refusal was not itself a general invocation of his right to remain silent or to the presence of counsel but applied only to the particular question asked. [3] While a general request[*321] for counsel indicates an unwillingness to submit to any further questioning, a request for counsel only as to one question does not itself indicate such an unwillingness. Further, other factors indicate the voluntariness of Stumes’s statements. Approximately six-and-a-half hours before the second interview Stumes had indicated he was willing to answer the officers’ questions. Stumes also evinced a cooperative attitude from the very start of the first interview when he consented to the search of his car and apartment and waived extradition proceedings for his return to South Dakota. When Stumes was told that questioning would be resumed later that afternoon, he in no way indicated his unwillingness to submit to further questioning, though he was aware of his right to do so.

In deciding whether Stumes voluntarily and knowingly waived his rights during the second interview, we also consider whether the police “scrupulously honored” his right to counsel, which he had asserted in a limited way at the end of the first interview. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Court seems to have held that statements made subsequent to the exercise of the right to remain silent are admissible only if the police “scrupulously honored” the defendant’s right to silence. [4] If they have not done so, subsequent waivers of rights are apparently not considered effective.

In determining whether the police “scrupulously honored” Mosley’s right to remain silent, the Court considered the following factors:

[T]he police ... immediately ceased the interrogation [after Mosley invoked his right to counsel], resumed questioning only after the passage of a significant period of time [about two hours] and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.

Id. at 106, 96 S.Ct. at 327.

Here the police ceased questioning after Stumes refused to answer the polygraph question and apparently did not resume this line of inquiry in the second interview, held about five hours after the first interview terminated. The only significant element missing in this case which was present in Mosley is that Stumes was not reissued Miranda^ warnings. We do not believe this difference is decisive under the peculiar facts of this case. First, Stumes, unlike Mosley, made only a qualified assertion of his rights, limited to one question. As noted above this does not indicate the same degree of unwillingness as a general exercise of the right to silence or counsel. Second, for the reasons stated above, we believe that Stumes was aware of his Miranda rights and voluntarily chose not to exercise them. To require the police to reissue Miranda rights under these circumstances would serve no real purpose. If Stumes had thought that the police would ignore his rights even if he asserted them, it is hardly likely that the mere reiteration of the rights would have disabused him of that idea.

In summary, we find that the police “scrupulously honored” Stumes’s request for counsel and that Stumes was aware of his Miranda rights and voluntarily decided not to exercise them when he spoke to the police during the second interview.

[*322] B. The Third Interview

The District Court found that Stumes voluntarily and knowingly waived his rights as to the statements made in the car on the trip to Sioux Falls. Stumes argues that this conclusion is erroneous because the statements were made after Stumes had expressly invoked his right to counsel at the end of the second interview.

As to the third interview, we hold that Stumes was aware of his Miranda rights and voluntarily chose not to exercise them. The evidence detailed in our discussion of the second interview strongly indicates that Stumes was aware of his rights and chose not to assert them. Near the end of the third interview Stumes in fact stated that “I don’t give a damn what [my attorney] says ... I’ll talk to anybody I want to.” Although this statement was made after he confessed to killing Hoff, it serves to confirm the inference that Stumes was acting voluntarily and with knowledge of his rights. Although Stumes argues that the confession he made in the car just before arriving in Sioux Falls was involuntary because the police had not given him Miranda warnings since about 9:00 that morning, we reject this argument for essentially the same reasons that we concluded that new Miranda warnings were not necessary at the second interview.

We also believe that the police “scrupulously honored” Stumes’s right to counsel. All but the last of the factors the Supreme Court found decisive in Mosley are present here. The police immediately ceased the interrogation after Stumes invoked his right to counsel. The interrogation did not resume until about sixteen hours later the next day. This break in the questioning was nearly fourteen hours longer than the two-hour break that • the Supreme Court considered to be a “significant period” in Mosley. [5] During this sixteen-hour period, Stumes was able to reconsider his decision free of the pressure and influence of the questioning officials. Also, like Mosley, Stumes was given fresh Miranda warnings when questioning was resumed.

Stumes’s situation at the time of the third interview differs in one important respect from Mosley’s. Stumes was questioned by the police about the same crime as in the earlier interview, whereas Mosley was questioned about a different crime that was not the subject of earlier questioning. However, as we have held on two prior occasions, this difference is not decisive. Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 167, 83 L.Ed.2d 102; United States v. Finch, 557 F.2d 1234, 1236 (8th Cir.1977) (per curiam), cert. denied, 434 U.S. 927, 98 S.Ct. 409, 54 L.Ed.2d 285. Questioning about the same crime does not of itself prove bad faith or undue pressure on the part of the police, especially where, as here, there is a substantial period between interviews and the police immediately terminated the prior interview when the defendant invoked his right to counsel. The defendant must show something more than simply that he was questioned again about the same crime. He might, for example, show that the police attempted to induce him to give up his right to counsel or to remain silent. See Jackson, supra, 730 F.2d at 1180. But here the defendant has not presented evidence that would warrant such a finding of bad faith or misconduct.

C. The Fourth Interview

On the evening following the car trip, Stumes requested to see Officer Skadsen and asked Skadsen to “tell them that I didn’t mean to kill her — that I’m not a[*323] vicious killer.” Because Stumes made this statement on his own initiative without questioning or prompting from the police, the safeguards of Miranda do not apply. Further, since we have found that Stumes’s prior statements were properly admitted into evidence, the argument that the “vicious killer” statement was the fruit of prior illegal interrogation is unavailable.

III.

The judgment of the District Court denying the writ of habeas corpus is affirmed.

1

. The Hon. Fred J. Nichol, Senior United States District Judge for the District of South Dakota.

2

. Stumes also argues that the admission of these statements violated his Sixth Amendment right to counsel. The District Court rejected this argument on the ground that Stumes’s right to counsel had not yet attached because no formal charges or indictment had been issued before the statements were made. We agree. See Brewer v. Williams, 430 U.S. 387, 398-99, 97 S.Ct. 1232, 1239-40, 51 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

3

. Although Stumes testified at the state suppression hearing that he made a general request for counsel, no court, state or federal, has so found. The state circuit court did not enter any findings directly on this point but found that "At one point while they were talking the Defendant stated he did not wish to continue the conversation. Immediately, Detective Green ceased this discussion, but told the Defendant he would see him later that afternoon.” State v. Stumes, Cr. 74-11, slip op. at 2 (Cir.Ct. Union County, S.D., Oct. 18, 1976).

Under 28 U.S.C. § 2254(d), factual findings of state courts are rebuttably presumed to be correct. Although the District Court held that the presumption of correctness did not apply because material facts were not adequately developed at the state court hearing, we construe the District Court’s holding to apply only to those material facts on which new evidence was intro[*321] duced. Since no new evidence was introduced as to the substance of the interviews, and the District Court in fact ruled that such evidence was inadmissible, the factual findings of the state courts as to the statements Stumes made to the police are presumed to be correct.

4

. Mosley involved the right to remain silent rather than the right to counsel. Indeed, two footnotes in Mosley suggest that the right to counsel should receive even greater protection than the right to remain silent. 423 U.S. at 101 n. 7, 104 n. 10, 96 S.Ct. at 325 n. 7, 326 n. 10. While these footnotes also indicate that the right to counsel should be protected by a per se exclusionary rule, we have been instructed on remand to evaluate the admissibility of the statements under the weaker “totality of the circumstances” standard. Solem v. Stumes, 104 S.Ct. at 1343-44, 1346, and the Supreme Court has stated that "much of the logic and language of the [Mosley ] opinion could be applied to the invocation of the ['right to counsel.’ ]’’ Id. at 1344.

5

. Our court has previously upheld the admission of statements obtained after substantially equivalent periods between the defendant's exercise of his right to silence and subsequent interrogation: United States v. Finch, 557 F.2d 1234, 1236 (8th Cir.1977), cert. denied, 434 U.S. 927, 98 S.Ct. 409, 54 L.Ed.2d 285 (statements made about twenty hours after right invoked); Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.1984) (statements made about twenty-four hours after right invoked). In Westover v. United States, 384 U.S. 436, 496-97, 86 S.Ct. 1602, 1639-40, 16 L.Ed.2d 694 (1966), a statement made after being given Miranda warnings was excluded, but there the defendant had just been subjected to intense and prolonged interrogation without any warnings at all. See Mosley, 423 U.S. at 107, 96 S.Ct. at 328.