Unpublished Disposition, 863 F.2d 886 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 886 (9th Cir. 1987)

No. 87-2856.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER, WIGGINS, Circuit Judges, and ALBERT LEE STEPHENS* , District Judge.

MEMORANDUM** 

PROCEDURAL HISTORY

Magby appeals from a judgment denying his petition for a writ of habeas corpus. This appeal follows a long history through the courts. Magby was convicted in an Arizona State Court of murder in the first degree and was sentenced to life imprisonment with no possibility of parole for 25 years. On appeal to the Arizona Supreme Court, his conviction was affirmed. State v. Magby, 113 Ariz. 345, 554 P.2d 1272 (1976). Magby sought federal habeas corpus relief from his conviction on the grounds that, inter alia, he made statements to his probation officer without receiving Miranda warnings. A federal district court denied the petition for the writ and that denial was affirmed by another panel of this court upon a finding that although it was a violation of Miranda for the probation officer to question Magby without advising him of his rights, the introduction of Magby's statements at his trial constituted harmless error. Magby v. Moran, 605 F.2d 562 (9th Cir. 1979) (unpublished memorandum).

Magby then filed a new petition for post-conviction relief with the Arizona State Court in which he claimed that his statements to the probation officer were made involuntarily. The Arizona State Court denied relief and that denial was appealed to the Arizona Supreme Court, which denied review without comment on March 31, 1981 (No. 3112-2-PC). Magby then filed another habeas petition with the federal district court in Arizona. The district court determined that Magby's involuntariness claim was procedurally barred, but a panel of this court reversed and remanded for consideration of the voluntariness claim in light of the then recent Supreme Court decision in Minnesota v. Murphy, 465 U.S. 420 (1983). Magby v. Wawrzaszek, 741 F.2d 240 (9th Cir. 1984). The district court instructed a Magistrate to prepare a Report and Finding which the Magistrate did after reviewing the state court record and after conducting his own evidentiary hearing. The district court accepted the Magistrate's conclusion that Magby's statement to the probation officer were made voluntarily and without coercion and the district court dismissed the petition on September 29, 1987. It is from that judgment that Magby seeks this current appeal. Since we find that Magby's statements were made voluntarily and were not the product of coercion, the district court's dismissal is affirmed.

JURISDICTIONAL STATEMENT

The district court had jurisdiction over petitioner's writ of habeas corpus under 28 U.S.C. 2254. This court has jurisdiction under 28 U.S.C. 2253.

FACTS

On Saturday, December 22, 1973 Magby was drinking with some friends, including Danny Clay. A fight broke out between Magby and Clay, Magby was knocked down and kicked. A friend who witnessed the fight escorted him to Magby's nearby van to recuperate. After remaining in the van for only a few moments, Magby returned to the scene of the fight and killed his assailant, Clay, with a shotgun which he had obtained from the van.

The police arrested Magby and confined him in the Pima County Jail. On Sunday, December 24, 1973, John Burch read about the killing in the newspaper. Burch had become the probation officer assigned to Magby after Magby had earlier been convicted of obstructing justice. Burch visited Magby in order to investigate the circumstances of the killing and to consider possible revocation of Magby's probation.1 

Burch arrived at the Pima County Jail and spoke with Magby on the morning of Monday, December 24. When Magby entered the room with Burch he initiated the conversation about the murder by saying, "I have really blown it now." Burch then asked Magby to explain to him what had happened, "if you would." Magby proceeded to talk to Burch for the next hour and give a full confession to the murder. Three days later, Burch turned this information over to the county prosecutor who used it as part of his case against Magby.

As noted above, Burch failed to give Magby his Miranda warnings, but a panel of this court has already ruled that the introduction of Magby's statements at his trial was harmless error beyond a reasonable doubt (on two prior occasions, Magby had spontaneously confessed). We now consider whether aside from a failure of Magby to receive his Miranda warnings, the circumstances of his confinement and the relationship with and behavior of his probation officer were such that his statements were involuntarily made and improperly introduced into evidence in violation of his Fifth and Fourteenth Amendment rights.

STANDARD OF REVIEW

We review a district court's dismissal of a writ of habeas corpus de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985). We review the issue of voluntariness of a confession de novo while giving proper deference to the conclusions of fact of the state court. Miller v. Fenton, 474 U.S. 104, 117 (1985).

DISCUSSION

"Due process does not bar the use of a confession as evidence unless government officials employed coercive interrogation tactics which rendered the defendant's confession 'involuntary' as a matter of law." U.S. v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987); Colorado v. Connelly, 479 U.S. 157, 167 (1986). For Magby to show that his confession was involuntary, he must demonstrate that it was the result of some coercion by Burch or coercion inherent in the circumstances of the interrogation. The evidence, however, clearly supports a conclusion that Magby confessed freely and voluntarily.

Magby initiated the conversation with Burch by mentioning the murder when he said "I have really blown it now." He proceeded to spew forth the details of the killing. On two prior occasions, once on the telephone to his girlfriend in a conversation overheard by the police and once in front of police officers during the taking of a blood sample, Magby spontaneously confessed to killing the deceased. Magby's willingness to discuss the murder came from his desire to explain the circumstances of the killing and not from coercion.

Magby testified at his evidentiary hearing that he felt no coercion from Burch, but rather thought of Burch as a "friend" and as someone who "went out of his way to help me and try to do things for me and give me a lot of leniency." At no point in the interview did Burch press Magby for answers. Burch never had to repeat a question.

Magby asserts he was not aware that he could refuse to answer Burch's questions because the terms of his probation required Magby to be truthful with Burch. He asserts that although he was aware of his Miranda rights generally and had twice asserted them in refusing to talk to police and in requesting counsel, he was not aware that his privilege against self-incrimination applied to his conversations with Burch. "We note first that the general obligation to appear and answer questions truthfully did not in itself convert [Magby's] otherwise voluntary statements into compelled ones." Minnesota v. Murphy, 465 U.S. at 427. Furthermore, if Magby "harbor [ed] a belief that his probation might be revoked for exercising the Fifth Amendment privilege, that belief would not have been reasonable." Id. at 438. Thus, Magby's possible misapprehension of his right not to incriminate himself did not convert his uncoerced statements into compelled testimony.

Magby seeks to characterize the nature of the probationer-probation officer relationship as inherently coercive. The Supreme Court rejected that view in Minnesota v. Murphy, but noted that the probationer in that case was not in custody when his probation officer questioned him. The Court said that " [a] different question would be presented if he had been interviewed by his probation officer while being held in police custody...." Id. at 429 n. 5. While in custody, Magby was interviewed by his probation officer, but there are no signs of coercion on Burch's part to trigger the concerns about custodial interrogation reflected in a long series of cases from Miranda v. Arizona, 384 U.S. 436 (1965) to Colorado v. Connelly, 479 U.S. 157. Magby spoke of his own free will, he wanted to explain the circumstances of the killing. Burch used no coercive or deceptive techniques to induce Magby to speak. Therefore, the circumstances in this case do not reveal a coercive custodial interrogation of the type alluded to in the Court's Murphy footnote.

The district court's dismissal is AFFIRMED.

 *

Honorable Albert Lee Stephens, Jr., Senior United States District Judge for the Central District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Magby's briefs imply that Burch went to the jail to speak with Magby with the purpose of eliciting incriminating evidence as to the murder charge. On the contrary, the district court found as a fact that Burch went to speak to Magby relative only to violation of probation. Burch's purposes for going to the jail are irrelevant. The crucial question is whether Burch used coercion to elicit Magby's statements. Minnesota v. Murphy, 420 U.S. at 431