Bert Leroy Hunter | Murderpedia, the encyclopedia of murderers

Bert Leroy HUNTER

Classification: Murderer

Characteristics:

Robberies

Number of victims: 3

Date of murders: June 16, 1968 / December 15, 1988

Date of arrest: 1989

Date of birth: March 7,

1947

Victims profile: Tavern owner / Richard Hodges, 49, and his mother, Mildred Hodges, 75

Method of murder: Shooting

/ Suffocating with plastic bags

Location: Andrew/Cole Counties, Missouri, USA

Status: Executed by lethal injection in Missouri on June 28,

2000

clemency petition

Summary:

With accomplice Tomas Ervin, forced their way into a home at gunpoint, thinking the owner kept large amounts of cash.

They bound Richard Hodges and his mother, 75 year old Mildred Hodges, with duct tape and robbed them of valuables.

When Ervin's mask was pulled off, they then suffocated both with plastic bags over their heads upon leaving.

Accomplice Ervin was also convicted, sentenced to death, and executed in 2000. Both were previously convicted of murder and met while in prison.

Hunter pled guilty to murder, though he later unsuccessfully tried to back out before sentencing.

Capital Punishment in Missouri from Missouri.net

On the afternoon of December 15, 1988, Bert L. Hunter and an accomplice, Thomas Ervin, went to the home of Richard Hodges in Jefferson City because they believed Hodges kept large amounts of cash in a file cabinet in his home.

With a pistol in his pocket, Hunter knocked on the Hodges' door and Mr. Hodges' mother, Mildred Hodges answered. Hunter pulled a stocking mask down over his face and displayed a pistol.

He entered the house and grabbed Mrs. Hodges by the hand. Mrs. Hodges became excited and cried out for her son. Mr. Hodges came into the room where they were standing and requested that the two assailants leave his mother alone because she was in frail health.

As Mr. Hodges attempted to calm his mother, Ervin and Hunter began binding her hands and feet with duct tape. She was taken to a back bedroom and placed on a bed.

Ervin took Mr. Hodges to the living room and made him lie on the floor. Errirt began taping Mr. Hodges' hands. At the same time Hunter was searching the house for money and other valuables.

Meanwhile, Mrs. Hodges managed to free herself and ran into the living room where Ervin was still taping Mr. Hodges' hands. She pulled the mask offErvin, causing him to fall on the floor. Ervin called out Hunter's first name.

Hunter returned to the living room and saw what had occurred. Once the mask was pulled off Ervin and Hunter's name was called out the two decided that both victims had to be killed.

Mrs. Hodges attempted to flee, but Hunter and Ervin caught her in the hallway and forced her to the floor. In his confession, Hunter stated that she hit the wall, bloodying her nose. A rush of air came out of Mrs. Hodges and she became still.

The two then returned to finish securing Mr. Hodges. They placed tape over Mr. Hodges' mouth and nose. Plastic bags were placed over the heads of both victims. Hunter admitted that after the plastic bags were placed on the victims' heads, he held Mr. Hodges' nose to suffocate him. Ervin returned and told Hunter that he thought Mrs. Hodges was dead. Hunter checked Mrs. Hodges and determined that she had no pulse.

The two then finished looking through the house and left. They removed Mr. Hodges' body and disposed of it in Jefferson City. The police found the body and then went to the Hodges' home where they found Mrs. Hodges' body.

Bert Leroy Hunter was bom on 3-7-47 in Stillwell, Oklahoma.

On 3-27-64 Hunter pleaded guilty to Burglaw and was sentenced to two years in the Missouri Department of Corrections. On 9-19-65 Hunter pleaded guilty to Stealing (Felony) and Escape and was sentenced to four years and two years to run concurrently in the Missouri Department of Corrections.

On 12-15-69 Hunter was sentenced to Life in the Missouri Departmnet of Corrections on a charge of Murder 1 st Degree. Hunter, acting with another, robbed a tavern in Amazonia, Missouri (Andrew County).

The owner was shot and killed during the commission of the offense which occurred June 16, 1968. On 10-21-85 Hunter received a Suspended Execution of Sentence in Florida for Aggravated Battery. He was placed on seven years probation.

The present offense occurred on December 15, 1988 when Hunter acting with another killed a Jefferson City woman and her son during a home burglary.

On 7-21-89 Hunter was sentenced to Death after a plea of guilty to Murder 1 st Degree (two counts) and Robbery 1 st Degree. Hunter was received in the Missouri Department of Corrections on 2-16-90.

Legal Chronology

1988
12/15 - Bert Leroy Hunter and accomplice Thomas Ervin suffocate 49 year old Richard Hodges and his mother, 78 year-old Mildred Hodges, during a robbery at Richard's Jefferson City home.

1989
03/28 - A Cole County grand jury indicts Hunter on two counts of first-degree murder and one count of first degree robbery. Hunter was on parole for a 1969 murder.
07/21 - Judge Kinder allows Hunter to represent himself, and he enters a plea of guilty to all three charges. Judge Kinder also rules that Hunter knowingly, intelligently and voluntarily waived his right to a jury trial at both the guilty and sentencing phases.
09/13 - A second psychiatric report which had been ordered by the court, is entered in the Cole County Circuit Court. The report finds Hunter's understanding of his legal situation to be impeccable and concludes that Hunter was capable of entering a voluntary guilty plea.
10/18 - With Hunter's permission, Hunter's attorney files a motion in the Cole County Circuit Court to withdraw the guilty pleas.
12/7 - Judge Kinder overrules the motion

1990
02/15 - Judge Kinder sentences Hunter to death on each of the two murder charges and to life imprisonment on the robbery charge.
04/25 - Hunter files a motion for post-conviction relief in Cole County Circuit Court

1991
07/24 - Cole County Circuit Court Judge James McHenry denies Hunter's request for post-conviction relief.

1992
10/27 - The Missouri Supreme Court affirms Hunter's conviction and sentence State v. Hunter 840 S.W.2d 850 (Mo. banc 1992).

1993
06/28 - Missouri Supreme Court denies Hunter's petition for a writ of certiorari Hunter v. Missouri 113 S. Ct. 3047 (1993).
10/28 - A petition for a writ of habeas corpus is filed on Hunter's behalf in the U.S. District Court for the Western District of Missouri.

1994
05/16 - Hunter files an affidavit with the Western District Court stating he never wanted to appeal his death sentence. He claims he personally did not authorize the suit and does not consent to the court's review of it. He asks U.S. District Judge Dean Whipple to dismiss the suit without prejudice.
08/2 - The 8th Circuit Court of Appeals orders Whipple to dismiss Hunter's case without prejudice.
08/17 - The Missouri Supreme Court sets Aug. 26 as Hunter's execution date.
08/22 - A petition for a writ of habeas corpus is filed on Hunter's behalf in the U.S. District Court for the Western District of Missouri.
08/25 - A petition for a writ of mandamus and an application for a stay of execution is A petition filed in the 8th Circuit Court of Appeals. The Court grants a thirty day stay of execution.

1995
02/9 - he U. S. District Court denies the petition for writ of habeas corpus in an unpublished order.

1996
11/14 - The U. S. District Court denies the petition again in an unpublished order.

1999
03/22 - The U. S. Eighth Circuit Court of Appeals affirms the denial of relief.

2000
01/24 - The U. S. Supreme Court declines discretionary review.
01/26 - The State requests the Missouri Supreme Court to set an execution date.
05/24 - The Missouri Supreme Court sets June 28, 2000 as Hunter's execution date.

ProDeathPenalty.com

On the afternoon of December 15, 1988, Hunter and an accomplice, Tomas Ervin, carried out a plan to rob Richard Hodges at his home on Boonville Road in Jefferson City.

Hunter and Ervin believed Hodges kept large amounts of cash in a file cabinet in his home. With a pistol in his pocket, Hunter knocked on the Hodges’ door. Richard’s mother, Mildred Hodges, answered. Hunter then pulled a stocking mask down over his face and, entering the house, grabbed Mrs. Hodges by the hand. He held a gun in the other hand. Mrs. Hodges became very excited and cried out for her son, Richard.

Richard came into the room where they were standing, telling the two assailants to leave Mrs. Hodges alone because she had just returned home after heart surgery.

As Richard attempted to calm his mother, Ervin and Hunter began binding her hands and feet with duct tape. She was made to lie down on a bed in a back bedroom. Ervin took Richard to the living room and made him lie on the floor. Ervin began taping Richard’s hands.

At same time, Hunter was searching the house for money and other valuables. Meanwhile, Mrs. Hodges managed to get free and ran into the living room where Ervin was still taping Richard’s hands. She pulled the mask off Ervin, causing him to fall back on the floor.

Ervin called out Hunter’s first name. Hunter returned to the living room and saw what had occurred. Once the mask was pulled off Ervin and Hunter’s name was called out, Hunter and Ervin made a mutual decision that both the Hodges were to be killed. Mrs. Hodges attempted to flee. Hunter and Ervin caught Mrs. Hodges in the hallway, forcing her to the floor.

According to Hunter, she hit the wall, bloodying her nose. A rush of air came out of her and she became still. The two then returned to finish taping Richard’s mouth and nose. Plastic bags were placed over the heads of both victims.

Hunter admitted that after the plastic bags were placed on the victims’ heads, he held Richard’s nose to suffocate him. While Hunter was dealing with Richard, Ervin was "working with Mrs. Hodges," although Hunter surmised there was "nothing to do, anyway."

Ervin returned and told Hunter that he thought Mrs. Hodges was dead. Hunter checked Mrs. Hodges and determined that she had no pulse. The two then finished looking through the house and left. They returned to the house at least once that evening or the next evening.

Eastern Missouri Coalition to Abolish the Death Penalty

June 30, 2000

Dear Governor Carnahan:

This letter is written to respectfully request that you enter a stay of all executions in Missouri until an independent inquiry is conducted and findings are entered to ensure that the execution protocol of Missouri inflicts neither cruel nor unusual punishment.

I was a witness to the execution of my client, Bert Leroy Hunter, on June 28, 2000. As a witness to two previous executions in Missouri, I know that Bert Hunter's violent death was not in accordance with execution protocol. During the other executions I witnessed, the condemned prisoners closed their eyes, rolled gently onto their backs, and appeared to fall asleep. Only when they were unconscious did they appear to cough and gasp for air before they stopped breathing.

During Bert Hunter's execution, as the blinds to the glass windows of the execution chamber opened, Bert Hunter lay on the gurney, looking at me. He mouthed the word "smile." I smiled. He raised the thumb of his right hand, and I returned the gesture. He glanced behind him, giving a puzzled look at the intravenous tubing that carried the lethal drugs. He turned to smile at me once again.

Immediately, Bert Hunter began having violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth like this repeatedly. I watched in horror, wondering how long this ordeal would continue. I thought to myself that it seemed as though the lethal drugs had not been given in the correct order.

He never lost consciousness prior to receiving the drugs to stop his breathing and his heart. With the last convulsion, he fell hard against the gurney. His mouth hung gaping open in a grotesque contorted position. His eyes were open. He was no longer breathing. I stared a few more minutes at the look of pain and agony on his face, until the window blinds dropped.

The lethal injection execution protocol used by Missouri requires a series of three separate drugs be given - the first renders the person unconscious, the second stops the breathing, and the third stops the heart. I watched Bert Hunter smile at me and then immediately, without pause, begin his convulsions. He was conscious as he suffered a violent and agonizing death. He never drifted into that state of unconsciousness the first drug was supposed to provide.

The irony is that Bert Hunter pled guilty and asked for the death penalty only because he wanted a painless death. He agreed to give up his constitutional rights to trial and to an attorney and to ask for the death penalty only because he relied on the state to kill him in a painless manner. If he had known he would suffer a painful death, he would never have pled guilty.

The State of Missouri has the legal duty to ensure a humane execution. The Constitutions of Missouri and the United States forbid the infliction of cruel and unusual punishment. If the State plans to continue to execute people, it must follow its procedures to ensure that death is not inflicted in a cruel and unusual manner.

I respectfully request that you issue an order to stay all executions in Missouri until a thorough inquiry is completed. I request that you appoint a board of inquiry of independent and unbiased persons.

This board should conduct a thorough investigation, including the taking of transcribed sworn statements of all witnesses present at Bert Hunter's execution and all persons involved in the administration of the procedure as soon as possible, a review of all prison records of the execution, an examination of all prison records of the prison's post-execution review process, the consultation of expert and independent medical witnesses regarding what transpired, and whatever else might be necessary to conduct a thorough and accurate review of what went wrong.

Appropriate changes should be made to ensure that no one else suffers like Bert Hunter suffered. If the State did not follow its execution protocol in Bert Hunter's case, there is no assurance that they will follow the appropriate procedure in subsequent cases unless an inquiry is held. I urge you to appoint a board of inquiry to investigate, report, and make recommendations that will ensure an execution process that complies with the state and federal constitutions. If you have any further questions, please do not hesitate to contact me. Thank you for your consideration of this matter.

Yours truly, Cheryl Rafert

Abolish Archives

6-27-00 - 11 years after he waived his right to a trial and told the court he wanted to die, convicted killer Bert Hunter was scheduled to be executed at 12:01 a.m. Wednesday. Hunter, 53, would be the 2nd Missouri inmate put to death by injection this year, and the 43rd since the death penalty was reinstated in 1989.

The U.S. Supreme Court Tuesday afternoon refused to halt the execution. Gov. Mel Carnahan turned down a request for clemency Tuesday night after finishing a briefing with his chief counsel. "The governor believes that Mr. Hunter should pay the ultimate penalty for taking the lives of 2 innocent people," said Jerry Nachtigal, Carnahan's spokesman.

If executed, Hunter would apparently be the 1st inmate in Missouri history to be put to death without a jury trial. When his case came to trial in 1989, Hunter was clinically depressed and suicidal. He pleaded guilty and asked the judge for the death sentence. He reconsidered a short time later and sought a new trial. That request was denied. Hunter continued to battle depression while on death row.

In April of this year, angry at what he perceived as unfair treatment at the Potosi Correctional Center, Hunter sent an angry letter to the Missouri Supreme Court. In the letter, he all but dared the justices to set an execution date. "I called them witch hunters and all sorts of things," Hunter told The Associated Press. "They set a date seven days later."

Hunter was convicted in the Dec. 15, 1988, murders of Mildred Hodges, 75, and her son, Richard, 49, during a robbery at their home in Jefferson City. Tomas Ervin, also on death row, was also convicted in the crime. Earlier Tuesday, Hunter said he didn't expect the Supreme Court or Carnahan to grant a last-minute reprieve. "There is no justice," Hunter said. "It's time for this nightmare to be over, as far as I'm concerned."

Hunter's 1989 crimes were not his first. In 1968, he and an accomplice robbed a legally blind tavern owner in the northwest Missouri town of Amazonia.

Hunter said the accomplice killed the barkeeper out of fear that he recognized his voice. Because Hunter was involved in the robbery, he was also convicted of what was then known as felony murder. Released on parole in 1980 along with Ervin, Hunter got a high-paying job as a computer programmer with the Missouri Department of Revenue before taking a job as a software engineer for a firm in Florida. Cole County prosecutor Richard Callahan recalled Hunter as an intelligent man, but one with a lust for cocaine. His drug habit cost Hunter his job in Florida, Callahan said.

In need of money, Hunter and Ervin planned to rob the Hodges home, Callahan said. In his confession, Hunter said the Hodges were killed because the assailants feared they had been recognized. Both victims were found with plastic bags over their heads. A medical examiner said they died of suffocation.

In an interview, Hunter painted an entirely different picture of the crime. He said Ervin wasn't even at the scene -- but did turn Hunter in for the murders. So, Hunter said, to get revenge, he lied and told police Ervin was involved. Hunter said he and another man, whom he declined to name, knew Richard Hodges, and during an argument the other man knocked Mrs. Hodges into a wall. She lost consciousness and died, Hunter said.

The other man then killed Richard Hodges, Hunter said. The bags over their heads were simply part of the plan to dispose of the bodies, he said. "There was no physical evidence to show that Bert Hunter was involved in the crime," said Hunter's attorney, Cheryl Rafert.

(Source: Associated Press)

Missouri Clemency Application

IN THE MATTER OF: BERT LEROY HUNTER, CP-81

APPLICATION FOR STAY OF EXECUTION, INVESTIGATION OF FACTS, AND REPRIEVE FROM DEATH SENTENCE - EXECUTION SET FOR JUNE 28, 2000 12:01 a.m.

INTRODUCTION

Bert Hunter is the first person scheduled to be executed under Missouri's current death penalty law who did not have a trial by a jury and did not have legal representation by an attorney at the time of his convictions. Of the forty-two executions in Missouri that have occurred since the death penalty was reinstated in the 1970s, every executed man had been convicted by a jury and had assistance of legal counsel.

Although Bert Hunter originally pled guilty and asked to be given a death sentence, he did so at a time when he was suicidal. Months before his plea, Bert attempted to commit suicide by shooting himself in the head. While he waited for his court date, he again tried to kill himself. Bert was placed on suicide watch in prison.

Bert Hunter was taken from a solitary confinement cell after a stay at a prison psychiatric facility to court to waive his constitutional right to a lawyer, waive his constitutional right to a jury trial, and plead guilty in a capital case. He informed the court that he had suicidal tendencies. The court allowed Bert Hunter to represent himself and accepted Bert Hunter 's pleas of guilty to two counts of first-degree murder.

Bert Hunter soon changed his mind about wanting to die. Long before he was to be sentenced, he asked the court to set aside his guilty plea because it was made while he was under duress. There was no legitimate reason to refuse Bert Hunter a trial by jury. There would have been no harm and no delay to the prosecution had the case proceeded to trial.

The court refused to allow Bert Hunter to withdraw his guilty plea. Instead, the court sentenced him to death. The court was more than happy to go along with Bert's suicidal request to end his life, but refused to grant his constitutional right to a trial.

These are frightening facts. Bert Hunter, a depressed suicidal man, pleads guilty asking the court to quickly put him to death. Within three months and long before the date of sentencing, Bert Hunter's mental health improves and he wants to live. The court sees evidence that Bert has mental problems and a history of suicide attempts. Nonetheless, the court refuses to allow Bert Hunter a jury trial. The court sentences Bert to the ultimate punishment death.

In addition to this nightmare, there is evidence that Bert Hunter is innocent of first-degree murder. During the guilty plea, he gave the court inconsistent statements of the deaths of the two victims that did not match his previous statements and did not match the medical examiner s autopsy report.

The court expressed doubt about the factual basis for one of the pleas, but accepted it anyway because that was Bert's wish. Bert Hunter's version of how he allegedly killed the other person was later discounted by the autopsy report.

An inquiry into this matter is necessary. Bert Hunter should not be executed when there exist questions regarding his innocence and the validity of his guilty plea.

SUMMARY OF FACTS

Bert Hunter was taken from a solitary confinement cell to court to waive his right to counsel, waive his right to a jury trial, and plead guilty in a capital case. He wanted to plead guilty so he could be sentenced to death. Plea transcript, at 74.

Bert exclaimed that his life was not worth living. Id., at 73 (Appendix, at 6). He was frustrated about not being strong enough to kill himself without assistance. Plea transcript, at 76. He told the court he would rather be dead than alive. Id., at 82. Bert Hunter had a history of suicide attempts, having tried to kill himself several times during his life.

How did Bert Hunter become so desperate to die? Why would he plead guilty to something he did not do?

Prior to his arrest in 1989, Bert Hunter had been a highly skilled and well-paid computer programmer. In 1982, he and his wife moved from Missouri to Florida where he had obtained a job making over $40,000 a year.

His wife, however, did not like living in Florida and returned to her home state of Missouri in 1987. Bert unsuccessfully tried to convince his wife to move back to Florida. He grew distraught about the separation from his wife.

Thus started a downward spiral into depression for Bert Hunter. He began using cocaine in ever increasing amounts. He attempted to commit suicide in 1988 by shooting himself in the head. The offenses for which he was convicted occurred later that year.

A psychiatric evaluation report filed by the prison hospital with the court before Bert pled guilty contained several notable findings. Appendix, at 20-24. The report indicated that Bert's mother had died when he was only three years of age, thereafter an abusive grandfather had raised him, he had been raised in an environment of extreme poverty, and other students teased him because of his poverty. Id., at 21.

Among other cruelties, the children laughed at him for eating lunches of cold biscuits and jelly. Id. The report also noted that Bert was experiencing a sense of hopelessness and had attempted suicide in the past. Id., at 23.

Bert Hunter told the court that accepted his guilty plea that he wanted to die quickly because the conditions of his prison confinement were atrocious. Plea transcript, at 10. He referred to the place he was housed as the convict s nightmare. Id., at 76.

His cell consisted of a single bed and one window that was 8 X 10 inches in size. Floor space was only about twice the size of the bed. Bert had no access to a telephone, radio, or television. He could not leave his cell except for one hour every other day, with a ten-minute shower on alternating days. Bert said he was harassed constantly in prison. Bert attempted suicide while he waited for his court date.

The court allowed Bert Hunter to represent himself at his plea for death. Plea transcript, at 131. The court accepted Bert Hunter's guilty pleas, but expressed concern that there was a weak factual basis to support one of the murder convictions. Id., at 131, 133, 141 (Appendix, at 11,13,17).

As soon as the court accepted Bert's guilty pleas, the judge ordered a second mental health evaluation. The court questioned whether Bert Hunter was mentally competent. Plea Transcript, at 135, 136, 138 (Appendix, at 14 16). The first mental health report indicated that no determination could be made whether Bert was mentally competent. Appendix, at 24.

The second evaluation reiterated Bert Hunter's cocaine dependence, mourning of the death of his mother from fecal impaction when he was only three years of age, childhood of abject poverty, abusive grandfather, depression, and prior suicide attempts. Appendix, at 27-28. The report also mentioned that Bert had denied killing the victims.

Bert Hunter decides he wants to live and requests a jury trial.

Several months before he was to be sentenced, Bert decided he wanted to live. On October 18, 1989, within three months of his July 21, 1989 guilty plea, and several months before his February 1990 sentencing proceeding, Bert Hunter filed a motion to withdraw his guilty pleas.

His mental health was improving. He was no longer held in restrictive, solitary confinement, and he had reconciled with his wife. Despite Bert s desire to withdraw his guilty plea within three months of the time he pled, the court refused to set aside the plea and instead sentenced Bert to death.

Doctors find that Bert Hunter was unable to make a rational decision to plead guilty.

A subsequent mental health evaluation conducted during state post-conviction proceedings concluded that Bert Hunter was suffering from major depression at the time he pled guilty. Dr. William O'Connor testified that Bert Hunter was suffering from depression and cocaine withdrawal at the time of his plea. Post-conviction transcript, at 146.

A Minnesota Multiphasic Personality Inventory (MMPI) test profile indicated major depressive disorder and paranoia. Appendix, at 37. Dr. O'Connor found Bert Hunter displayed suicidal tendencies and considered him to be at significant suicide risk. Id., at 39. Dr. O'Connor concluded that Bert Hunter suffered from a mental disease or disorder at the time of his plea and lacked the mental competence to proceed on the case. Id.

During federal court proceedings, Dr. Robert Smith examined Bert Hunter. The district court and federal appeals court did not consider Dr. Smith's report because it was not a part of the state court record.

Dr. Smith noted that all of the mental health experts who evaluated Bert Hunter agreed that he met the criteria of cocaine dependence; three of the four doctors agreed he met the diagnostic criteria for depression; Bert Hunter suffered from the dual diagnosis of substance abuse and mental illness at the time of his guilty pleas; and the depression influenced Bert Hunter s judgment and impaired his ability to be objective, rational and fully capable of considering his options at the time he pled guilty. Appendix, at 41-44.

The state and federal courts have denied any relief to Bert Hunter, upholding the validity of his guilty plea. The Eighth Circuit Court of Appeals held that the state court s conclusion that the guilty plea was valid was entitled to a presumption of correctness. The Eighth Circuit failed to mention substantive evidence that rebutted this presumption.

ISSUES WARRANTING EXECUTIVE INTERVENTION

A. Bert Hunter's guilty plea should have been withdrawn.

1. A common reason for suicide, depression, caused Bert Hunter to plead guilty.

Bert Hunter was not competent to enter guilty pleas because he did not possess sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and [have] a rational as well as factual understanding of the proceedings. Dusky v. United States, 362 U.S. 402, 402 (1960)(per curiam)(quotations omitted).

The plea court made several comments about the unusual nature of Bert Hunter's request to be sentenced to death. The plea court noted, "it's a rare thing to have somebody come up and say they want to plead guilty and get the death penalty. That is a little unusual." Plea transcript, at 10.

The court added, "it's a little unusual that somebody comes in and says they want to plead guilty and they want to get the death penalty." Id., at 12. The court questioned whether Bert Hunter was suicidal when the court asked whether he was "trying to do a Gary Gilmore deal and that whole thing?" Id., at 16.

The court stated, "[i]t s not my function in life to be a part of a legal suicide." Id., at 28. The plea court claimed it did not "want to be part of some game where [Bert Hunter was] just trying to get the State to take [him] out if [he has] suicidal tendencies." Id., at 99. To this, Bert Hunter responded that he did have suicidal tendencies. Id.

Bert Hunter testified at his plea hearing that "being strapped on that gurney at Potosi would be a blessing to the State and myself." Id., at 73 (Appendix, at 6). Bert Hunter remarked that he would take his own life if given a painless way. Id., at 74 (App., at 7). He admitted to attempting suicide the prior year while he was a cocaine addict. Id.

A psychiatric evaluation report filed with the plea court by Fulton State Hospital before Bert Hunter pled guilty indicated that Bert suffered from a history of cocaine abuse, had been raised in an environment of extreme poverty, was teased by other students because of his poverty, had been raised by a physically abusive grandfather after his mother died when he was only three years of age, was experiencing a sense of hopelessness, and had attempted suicide in the past. Appendix, at 21, 23.

Dr. Surjit Singh's pre-plea psychiatric report concluded that he was unable "to determine whether [Bert Hunter] is competent and responsible for the crimes he committed." Appendix, at 24. Dr. Singh did not issue a finding that Bert Hunter s guilty plea was made in a knowing, intelligent, and voluntary manner.

The report referred to Bert s desire to die and his self-destructiveness. Id., at 23. Such findings support a conclusion that Bert Hunter s guilty plea is invalid. As soon as the plea judge accepted Bert Hunter's pleas, he ordered a second mental health evaluation. Plea transcript, at 136.

The plea court had residual doubts about Bert Hunter's mental competence as evidenced by the ordering of a new mental health examination. The plea court acknowledged that it was not a psychiatrist. Id., at 135 (Appendix, at 14).

The court noted that although it had accepted the plea, the court wanted to be sure that Bert was competent when he entered the plea. Plea transcript, at 136 (Appendix, at 15). This indicates that the plea court was not firmly convinced that Bert Hunter was competent to plead guilty at the time the court accepted the guilty pleas.

The new mental evaluation, conducted by Dr. Sam Parwatikar, reiterated Bert Hunter's cocaine addiction, detailed his impoverished childhood and abusive grandfather, indicated he was depressed because his wife had separated from him, revealed that he was experiencing extreme paranoia, cited prior suicide attempts, and reported that he indicated that he was not guilty of the charges. Appendix, at 30. Nonetheless, Dr. Parwatikar concluded that Bert Hunter was mentally fit to plead guilty.

Only one doctor, Dr. Parwatikar, found Bert Hunter was mentally competent. The fate of whether a man lives or dies by execution should not rest on the conclusion of one doctor when there is substantial evidence from all other examining doctors that refutes Dr. Parwatikar 's conclusion.

Dr. Lee Evans also examined Bert Hunter after he pled guilty and before he was sentenced. Dr. Evans testified that Bert Hunter was engaged in the most extensive cocaine use he had encountered up until that time. Plea transcript, at 161 (Appendix, at 40). Dr. Evans testified that cocaine withdrawal could result in depression and have other adverse effects. Id.. Depression is a mental disease and can cause self-destructiveness.

Plea transcript, at 164 (Appendix, at 41). People who are depressed will begin feeling very worthless, hopeless, suicidal, extreme guilt. Id.. Dr. Evans noted that the judgment of a depressed person will be adversely affected and thus will lose an ability to make decent judgments. Plea transcript, at 165 (Appendix, at 42).

Dr. Evans found that there was no depth to Bert Hunter s decision to plead guilty. Plea transcript, at 176, 187-188. Dr. Evans diagnosed Bert Hunter as suffering from depression meeting the DSM-III criteria for a mental illness. Id., at 189, 191. Dr. Evans doubted whether Bert Hunter was acting in a knowing, intelligent, and rational manner at the time he pled guilty. Id., at 196 (Appendix, at 44).

During post-conviction proceedings, Dr. William O'Connor examined Bert Hunter. Dr. O'Connor concluded that: [I]t is clear that a major depression affects judgment and that the degree of depression, while it does not interfere with the knowledge of technical court procedures, it would prevent an individual from making decisions with respect to a possible death penalty; individuals with this degree of depression do not anticipate any positive future events and can clearly be considered at significant suicide risk. Appendix, at 39.

The post-conviction court did not state why it rejected Dr. O'Connor's conclusions and instead adopted Dr. Parwatikar's conclusions. By offering no explanation for why it credited one doctor s diagnosis over the diagnosis made by other doctors, the state court infused the death penalty process with improper arbitrariness.

2. Atrocious prison conditions compounded Bert Hunter's depression and suicidal tendencies.

The conditions of Bert Hunter's prison confinement also spurred Bert Hunter's decision to plead guilty. Bert Hunter testified at the guilty plea that the conditions of confinement were a significant factor in wanting to plead guilty. Plea transcript, at 78.

A correctional officer described the conditions in a hearing held after Bert Hunter pled guilty. The officer testified that Bert Hunter was confined in a single prison cell of a very small size that held a twin bed; he was confined in the cell and permitted out only every other day for about one hour; he was allowed either to shower or to walk in a security area during the release from his cell on alternate days; he ate all of his meals in his cell; he did not have access to exercise equipment, a telephone, television, or radio; and he had only limited opportunity to talk to other inmates through the prison walls. Plea transcript, at 204-210.

At a pre-sentencing hearing, Bert's wife, Deanna Hunter, testified that he had written several letters to her while in prison stating that he was suicidal, he wanted to die as soon as possible, and he had attempted to commit suicide during confinement while waiting to plead guilty. Plea transcript, at 162, 168, 173.

3. Bert Hunter's guilty pleas were invalid because he was not mentally competent at the time of his pleas.

The conviction of a defendant who is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375, 378 (1966). To be valid, a guilty plea must be a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970). "[I]f a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." McCarthy v. United States, 394 U.S. 459, 466 (1969).

Bert Hunter lacked the mental capacity required to waive the cornerstone trial rights of a United States citizen the right to be tried by a jury of one's peers, the right to confront one's accusers, and the privilege against self-incrimination. A defendant waives these three federal constitutional rights when pleading guilty. Godinez v. Moran, 509 U.S. 389, 397 n. 7 (1993). Bert Hunter's guilty pleas were not made in a voluntary, intelligent and knowing manner. He was not competent to represent himself and enter valid guilty pleas because he was suffering from clinical depression.

Bert Hunter's decision to discharge counsel, plead guilty, and present no defense was the result of mental illness. At the time he pled guilty, Bert Hunter was suffering from clinical depression, which meets the diagnostic criteria of a mental disease or defect; suffering from the adverse effects of withdrawal from cocaine; and suffering from the poor conditions of prison confinement that included being held in restrictive isolation in a small cell. Bert Hunter's state of mind precluded him from making a voluntary, knowing, and intelligent plea of guilty.

4. There was no legitimate reason to deny Bert Hunter a jury trial.

It is strange that, at the time of the guilty pleas, the court recognized the unusual nature of Bert Hunter's desire to proceed without counsel, plead guilty, and request a death sentence, yet the court refused to grant Bert s request to withdraw his guilty pleawell before the sentencing date.

There was no prejudice or harm to the state if the plea court had permitted Bert Hunter to withdraw his plea. On the other hand, the prejudice and harm in not granting this request was enormous Bert Hunter would die.

The plea court supported Bert Hunter's wish for a state assisted suicide. When Bert decided not to commit suicide, the plea court proceeded to fulfill Bert s prior death wish. The laws of the State of Missouri do not support state-assisted suicide, and do not permit a person to kill another person who has retracted his or her thoughts of suicide.

5. The constitutional right to a jury trial is a fundamental right that should not be denied arbitrarily.

In our society, the constitutional right to trial by jury is guaranteed. The waiver of such a vital right should be scrutinized closely especially in a death penalty case. Missouri law favors the trial of criminal cases. State v. Hardy, 98 S.W.2d 593, 596 (1936); Tillock v. State, 711 S.W.2d 203, 205 (Mo. App. 1986).

In general, courts are reluctant to deny people their constitutional right to a trial by jury and all the constitutional rights that accompany the right to a jury trial, especially when the outcome results in the death penalty. "That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized." Brady v. United States, 397 U.S. 742, 748 (1970).

When the present Missouri death penalty statute was written, it was unlikely that anyone considered that someone might plead guilty and request the death penalty. The death penalty statute is designed to afford specific rights through a trial by jury, including the rights to voir dire the jury panel regarding views that might preclude a fair decision and the right to present mitigating evidence in the punishment phase of the trial. The death penalty statute does not provide what procedures must be followed in the event of a guilty plea.

Guilty pleas are often entered because the defendant is seeking to avoid the death penalty. See e.g., North Carolina v. Alford, 400 U.S. 25, 31 (1970). It is extremely rare that a defendant will enter a guilty plea and request a death sentence. A guilty plea that results in the death penalty requires close scrutiny. There is a heightened need for reliability in capital proceedings. Woodson v. North Carolina, 428 U.S. 280, 304-304 (1976).

"[T]he greater the offense . . . charged . . . the greater is the caution exercised by and the greater is the reluctance on the part of the court in accepting a plea of guilty." Hardy, supra 98 S.W.2d at 596; State v. Reese, 457 S.W.2d 713, 717 (Mo. banc 1970)(citing Hardy). When the penalty may be death, "the court should proceed with care." State v. Williams, 361 S.W.2d 772, 774 (Mo. banc 1962).

In Mercer v. Armontrout, 864 F.2d 1429, 1431 (8th Cir. 1988), the Eighth Circuit Court of Appeals held: Human life is our most precious possession. Our natural instincts guide us from birth to sustain life by protecting ourselves and protecting others. All notions of morality focus on the right to live and all of man s laws seek to preserve this most important right. . . . What separates the unlawful killing by man and the lawful killing by the state is the legal barriers that exist to preserve the individual s constitutional rights and protect against the unlawful execution of a death sentence. If the law is not given strict adherence, then we as a society are just as guilty of a heinous crime as the condemned felon.

Even assuming that it was "legally" right to deny Bert Hunter's request to withdraw his plea and receive a jury trial, it is not ethically or morally right to execute a man who was denied his request for a jury trial under the unusual circumstances of the present case. Intervention by the Governor is necessary to remedy this wrong.

If the facts underlying Bert Hunter's case suicidal tendencies, depression, poor living conditions, change of heart arose in any other situation that did not involve the death penalty, then intervention to correct the injustice would be unquestioned. If someone entered a contract with a doctor to assist in a suicide, then changed his or her mind, should they not be allowed to cancel the contract?

B. Bert Hunter was not competent to represent himself.

The plea court permitted Bert Hunter to proceed pro se without determining his ability to represent himself. Bert Hunter acknowledged that he only "somewhat" understood the perils of self-representation. Plea transcript, at 25-26, 28 (Appendix, at 2-4).

The Sixth Amendment provides, In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense. The right to counsel is fundamental to our system of justice. Gideon v. Wainwright, 372 U.S. 335 (1963).

The United States Supreme Court has held: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Powell v. Alabama, 287 U.S. 45, 68-69 (1932).

Courts must indulge every reasonable presumption against a knowing, intelligent, and voluntary waiver of the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 463 (1938). The court should make the defendant aware of the dangers and disadvantages of self-representation and inquire into his mental capacity to make an intelligent decision. Faretta v. California, 422 U.S. 806, 835 (1975).

If an accused does not receive effective assistance of counsel and has not competently and intelligently waived his constitutional right to counsel, the Sixth Amendment to the United States Constitution bars a valid conviction or sentence. Johnson v. Zerbst, 304 U.S. at 468.

The plea judge asked Bert Hunter only a handful of questions before declaring that he could represent himself without counsel. Plea transcript, at 25-26, 28 (Appendix, at 2-4). Bert Hunter's response that he knows he has a right to counsel and desires to waive it does not end a judge s responsibility. Von Moltke v. Gillies, 332 U.S. 708, 723 (1948).

When Bert said he "somewhat" understood the risks of proceeding without counsel and that his life was "fraught with peril," the court failed to explain the peril or inquire into Bert's equivocal understanding of the situation. Plea transcript, at 26 (Appendix, at 3). In the case of Heath Wilkins, the plea court repeatedly discouraged Heath from dismissing counsel and offered repeated opportunities to reconsider and withdraw his plea of guilty. State v. Wilkins, 736 S.W.2d 409, 413-414 (Mo. banc 1987).

The plea court heard evidence from a psychiatrist before granting Heath Wilkins the opportunity to proceed pro se, postponed the proceeding to give Heath a week to contemplate his request, and admonished Heath not to plead guilty. Id., at 413.

When the hearing resumed, the plea court again strongly encouraged Heath to consult with counsel and set a hearing for several weeks later with the continued admonishment to reconsider his chosen course. When the court again convened to consider Heath s request, the plea court persisted in its efforts to convince Heath that his uncounseled course was unwise. Id., at 414.

Heath testified that he preferred the death penalty to life in prison. Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998)(slip op. at 6). He did not express any desire to not be executed until more than two years after he was sentenced, which was after his conviction and sentence had been affirmed by the Missouri Supreme Court. Id., slip op. at 4, 7. No doctor who examined Heath at the time of his guilty plea found that he was incompetent to plead guilty. One doctor found Heath was mentally competent to plead guilty while another doctor offered no opinion regarding competency. Id., at 5.

By sharp contrast, in Bert Hunter's case, the plea court encouraged Bert to proceed without counsel and failed to acknowledge evidence that the waiver of counsel was not being made in a knowing and intelligent manner. Despite the plea court's efforts to dissuade Heath Wilkins from pleading guilty to a capital charge without assistance from counsel, the Eighth Circuit Court of Appeals found that Heath s waiver of counsel was not made in a voluntary and intelligent manner. Wilkins v. Bowersox, slip op. at 20-21. The Eighth Circuit Court of Appeals did not even permit Bert Hunter to raise the issue that his waiver of counsel was invalid on appeal.

The Eighth Circuit refused to allow Bert to brief this important constitutional issue, even though it was an issue resolved favorably for Heath Wilkins. The federal appeals court did not mention Heath Wilkins case in its decision of Bert Hunter's case. Although Bert Hunter's case is far more compelling than that of Heath Wilkins case, Heath will live, while Bert is scheduled to die next week. This is arbitrary and unfair.

C. There is no factual basis supporting the convictions.

1. Mildred Hodges was not killed in a deliberate manner.

Bert Hunter told the court that "the death of Mildred Hodges was not caused by asphyxiation." Plea Transcript, at 36 (Appendix, at 5). He testified that Mildred Hodges was not murdered because there was no deliberation. Id., at 90-91. He stated that no one intentionally suffocated her. Id., at 121 (Appendix, at 10). According to the autopsy report, Mildred Hodges died as a result of heart disease, probably during an assault. Appendix, at 18.

The trial judge remarked "there is no indication of murder in the first degree concerning Mrs. Hodges." Plea transcript, at 131 (Appendix, at 11). The court remarked that the guilty plea to the death of Mildred Hodges was probably only "a matter of statistics." Plea transcript, at 132 (Appendix, at 12). The court stated that the factual basis is a bit thin. Plea transcript, at 133 (Appendix, at 13).

To be guilty of first-degree murder, the murder must be deliberate and intentional. Deliberation is a necessary element of first-degree murder. Section 565.020, R.S. Mo. Such was not the case with the death of Mildred Hodges. Bert Hunter should not have been found guilty of first-degree murder in Mildred Hodges' death.

2. Richard Hodges was not killed in the manner Bert Hunter claimed.

Bert Hunter told the court that he had killed Richard Hodges by holding his nose shut. Plea transcript, at 104, 108 (Appendix, at 8, 9). The medical examiner s autopsy report indicated that the cause of Richard Hodges death was due to compression of the neck (Appendix, at 19), which was inconsistent with Bert Hunter s testimony during the guilty plea. Thus, there was no reliable factual basis to support a first-degree murder conviction for the death of Richard Hodges.

3. Bert Hunter's numerous inconsistent statements render his confessions unreliable.

Bert Hunter made many inconsistent statements regarding what had transpired. Although he told the court that he should be convicted of murder, he told many other people including police officers, his wife, his stepson, and psychiatrists that he was innocent. Plea transcript, at 111, 150, 237, 243. Bert Hunter s inconsistent statements render his guilty plea unreliable.

4. There is evidence that a third party committed the crimes.

There is evidence that has not been investigated that tends to show that a third party killed the Hodges. FBI evidence indicates that a Dr. Pope was the possible killer. Post-conviction Legal File, at 46. In addition, a hair found at the crime scene did not match the hair of either Bert Hunter or Tomas Ervin, a co-defendant who was also convicted of these murders. Bert s wife provided a detailed statement to the police implicating a third party as having committed the crimes. The police intentionally omitted this statement from their police report and failed to pursue this significant lead.

THE GOVERNOR HAS AUTHORITY TO REPRIEVE DEATH SENTENCES

Article IV, Section 7 of the Missouri Constitution and Sections 217.800 and 552.070, R.S. Mo. provide that the Governor of Missouri has the power to grant reprieves, commutations, and pardons.

The Constitution of Missouri vests in the Governor the power of checks and balances in the matter of sentences of death. If a defendant has not received due process or a fair trial, as required by our system of justice, the only remedy is by act of Governor. It is the responsibility of the Governor to intervene and grant a stay of execution when there have been violations of the Constitution that our legal system has not addressed in an adequate manner.

The United States Supreme Court has made it clear that it is the responsibility of the Governor of the State to intervene and grant relief to prevent miscarriages of justice in death penalty cases. In Herrera v. Collins, 506 U.S. 390, 411-412, 415 (1993)(opinion by Rehnquist, C.J.), the United States Supreme Court held: Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted In England, the clemency power was vested in the Crown and can be traced back to the 700's. Executive clemency has provided the "fail safe" in our criminal justice system. . . . It is an unalterable fact that our justice system, like the human beings who administer it, is fallible.

The Missouri Supreme Court also recognizes that it is the proper role of the Governor to act when the courts decline to correct an unjust conviction or sentence. State v. Wilson, 813 S.W.2d 833 (Mo. banc 1991)(case in which this Governor subsequently granted relief).

The execution of a human being must not occur when the criminal justice system has failed to ensure a just result. As held by the United States Supreme Court: "The penalty of death differs from all other forms of criminal punishment not in degree but in kind. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice and it is unique finally, in its absolute renunciation of all that is embodied in our concept of humanity." Harmelin v. Michigan, 501 U.S. 957, 995-996 (1991)(quoting Furman v. Georgia, 408 U.S. 238, 306 (1972)(Stewart, J., concurring)).

The Governor of Missouri also has the authority to issue a stay of execution to ensure that this Application receives the full and fair review it deserves. Potts v. Zant, 638 F.2d 727, 730 (5th Cir. 1991)(Governor of Georgia granted stay of execution pending clemency consideration); Miller v. State, 473 S.W.2d 413, 414-415 (Mo. 1972)(stay of execution ordered by Governor pending a psychiatric review).

Section 552.070 allows the Governor to appoint a board of inquiry whose duty it shall be to gather information, whether or not admissible in a court of law, bearing upon whether or not a person condemned to death should be executed or reprieved or pardoned, or whether the person s sentence should be commuted. Under the circumstances presented in the case before you, it would be prudent to appoint a board of inquiry to determine whether Bert Hunter should be executed.

CONCLUSION

Governor Mel Carnahan: You have heard many pleas for mercy. It is a difficult job to weigh and decide issues that determine whether someone will live or die. The case before you is one that warrants your intervention. You are the last resort for justice for Bert Leroy Hunter. The decision you as Governor face is whether you will exercise your power to intervene to correct Bert Hunter s unjust and unfair conviction and sentence.

The courts failed Bert Hunter. The plea court failed to do justice to Bert Hunter by allowing Bert Hunter to represent himself, accepting Bert Hunter's plea, and sentencing him to death. When there is any question whether Bert was not mentally competent to enter a plea of guilty, justice should fall upon the side of being conservative and cautious. Justice in this case would have been to withdraw the guilty plea and proceed to jury trial. The appeals courts failed to do justice to Bert Hunter by not correcting errors made by the plea court.

For the reasons set forth above, we implore you to stay the June 28, 2000 execution of Bert Hunter, appoint a board of inquiry to gather information bearing upon whether Bert Hunter s convictions and death sentences should be upheld, and thereafter grant Bert Hunter whatever relief is just and proper under these circumstances.

Respectfully submitted

Cheryl A. Rafert
Leo N. Griffard, Jr.
Attorneys for Bert L. Hunter

Mid-Missouri Fellowship of Reconciliation

Bert Hunter: Getting to Know, Beyond the Headlines, the Human Being the State Killed.

Excerpts from a June 2000 Interview with Bert Hunter.

Bert Hunter sat on the other side of a thick pane of glass, while we communicated by telephone at the Potosi Correctional Center in southern Missouri. He had been sentenced to death for the robbery and murder of Mildred Hodges and her adult son Richard in Jefferson City.

Hunter waived his right to a jury trial and pled guilty, but has since recanted his confession. Thomas Ervin also received a death sentence, largely due to Hunter's testimony, testimony which Hunter now contends was perjurious. The Missouri Supreme Court ordered Bert Hunter's execution set for late the night of June 27, (officially just after midnight, June 28).

Since he has an execution date, he can have no further "contact" visits. We could not shake hands. Nobody besides correctional workers can touch him. That includes his parents or other loved ones, at least not until state officials would kill him. (See "Suggestions for Action" on this web site to help halt his state killing)...

Reporter: Hello Bert. Thanks for agreeing to meet. I felt an obligation to let the public know the human being the state is intent to wipe off the face of this earth.

Bert Hunter: But this ain't too much of an earth,.. there's a new Bob Dylan song (with the lyrics)....'He used to care that changes would change, but they've got him locked up and now he's out of range.'.... I think it should be stressed (that many people) are running around saying, 'Let's get rid of the death penalty because it's inhumane. That could be. But I think there are very few people that would not want to kill somebody that had hurt somebody they had really loved. I think it's a human reaction. But the problem is, if I did something horrendous to you, I hurt someone in your family, if you kill me you are the only one that's (still) in (an emotional) prison. You kill me and my suffering's over. By killing me, you're doing me a favor.

Rep: Have you always felt this way about the death penalty, that it was something of a mercy killing?

BH: I think everyone has a certain fear of death. I think I have less of a fear than most because I'm an atheist. I've never believed in God..... If you're trying to stop murder, executions are the last thing you'd want to do. There are all kind of arguments.. But if I were wanting to really punish you, I would feel better if I knew that you were going to be in prison for the rest of your life and that you would suffer...

Rep.: Now what about your situation? In the case of the killings of Mildred and Richard Hodges, you opted not to have a jury, just a trial by the judge. You pled guilty. You--

BH: Committed suicide.

Rep. Could you talk about that?

BH: I was under a lot of stress. I tried to shoot myself (some weeks before the crimes) . Do you see these (points to black marks on the upper part of his forehead). I took a .22 pistol and tried to shot myself. And I just couldn't do it. I got this powder burn that turned into a mole. I don't know what it takes (to kill yourself), if it's cowardice, courage....Doyle Williams (who was executed a few years ago in Missouri) and I used to argue about this...One of the only urges we are born with is self-preservation. If you don't have that how can you tell me you are not insane?... If you do not have the will to live then you are insane.

Rep. How did you lose your will to live?

BH: Jesus Christ, I was making $45,000 a year (with a Florida computer company) , I lost my wife--she was really the only friend I ever really had. And I drove her away. It impacted her so much, she went to a doctor...I came back to Missouri, quit my $45,000 a year job. She was in Missouri. I didn't have a job (when he returned). I was going to sell these hand-held computers. It was lucrative. I know them in and out. I didn't have any sales experience. Well, the average sales person took 6 months to make a (first) sale. I told her (the parole officer) I had over $2200 in savings. Then my wife had some too. And she was working and was happy with her work. Yet my parole officer, told me to go out and get a job (instead of waiting for some revenue from the computer sales). My (previous) employers (at the Dept. of Revenue) told me as a favor in part, 'We're not going to hire you (back), when you had been making $45,000-- and would be making $20,000. You're really making a dumb career move (quitting the Florida job). You don't roll back.' I told them I needed to because of my wife's situation. He told me, 'We foresee you getting frustrated with the loss of salary. That's going to blend over into your home life. And probably lead to a divorce.' I believe he was trying to give me what he thought was good advice." I did eventually decide to move back to Florida. (She didn't really want to go, but she agreed to. Then he felt too controlled by her, he said, so he went south on his own) Going back to Florida without her was the biggest mistake I ever made in my life. (His former employers gladly hired him back. However) I went to 'titty' bars and began selling cocaine....And for me it went (hand motioned a downhill slide). They (the Florida employers) let me sit for seven months without putting together a single line of computer programming. I wouldn't show, couldn't show up two days a week. I tried to get back with my wife...She later met someone else and went on with her life. A former co-worker and I used to sell cocaine while I lived in Jefferson City (years before)... My roommate (in Florida) and I had a falling out. He got a girlfriend... all of a sudden, I became the person with a drug problem. He began pushing me out...I decided to rip him off (staging a robbery) of their apartment (with his former drug partner from Jefferson City). It took some possessions from my side of the apartment to make it look good and I took about an ounce of cocaine. He had threatened to shoot me. I came by to shoot him, but he wasn't there, but his girlfriend (and a few other folks) were. We committed the robbery, then we headed up to Missouri. I was two car payments behind. I called my (then ex-) wife, but she was leery of it (my reason for needing the money.) So I told her I was going to rob a bank. (Instead) I decided to sell the cocaine....He (his former Jeff City partner whom Hunter refuses to identify) agreed to sell it. (This unidentified man has since died. Hunter told his friend) I needed the money when reporting to the (Florida) parole officer (to show financial responsibilities were being met)...The man (Richard Hodges told Hunter's partner) the cocaine wasn't any good (Hunter contends Hodges gave the drugs to another person in exchange for sex. Confronting his partner, Hunter says) ... I told the man, I wanted my $500. 'If it doesn't work out, all hell's going to break loose right here in River City.' I had an '86 Mustang with loud mufflers with Florida plates, pretty recognizable in Jefferson City. I borrowed (Thomas) Ervin's car (They had met while in county jail several years earlier. Hunter says Ervin didn't accompany him, but that he went with his unidentified partner to the Hodges' home which doubled as a real estate office for Richard's mother Mildred. Hunter says he waited in the car while his partner, went inside to confront Richard Hodges. An argument erupted, Hunter says he could see from the car. Mildred Hodges, apparently burst into his apartment, overhearing the discussion. She had also seen Hunter parked and waiting. The partner later told Hunter, he told Richard Hodges nonpayment was not an option. The son) was trying to beat me for the money. I was waiting in the car. (Hunter's partner supposedly later told him) She began beating him. He grabbed her, then she slipped away and fell into a wall, nose first, (leaving) blood on the wall. She fell down. It knocked the breath out of her. She had severe heart problems, (apparently) had just gotten out of the hospital. And died. This guy he used to work at the hospital at MSP,... (he found) she's got no pulse, no carotid artery (pulse), nothing. He (Richard Hodges) started yelling, 'You dirty sonuvabitch. You killed my mother. (He attacked Hunter's partner) Probably the only aggressive move he ever made in his life. Then he (Hodges) got knocked down and choked (to death by Hunter's partner). He waved from the window. I came up. He briefed me on what had happened, and I said, "I'm out of here.' 'Oh No, you can't leave me hanging.' (Hunter stayed and helped duct-taped Richard Hodges then left) He was cleaning three deep scratches on his face (from the woman's defensive efforts). So he says, 'Take me back to work so we can get a vehicle.' I said, 'Well, we have still got a problem.. I've got to report to my parole officer in Florida, and I've got to have that money.' He don't want to hear that. 'I done just killed two people. I've done everything I could (to retrieve the money)... I couldn't have whupped him, so I let him go to work. I called later on that evening at about 5:00. He told (his wife) he had a family emergency in Iowa (so didn't go to work), got her car. He left his pickup there and called her on the payphone from the road. Said someone in his family was sick there. I asked (his wife) if she had a number. She said 'I have got his sister's number. Let me get that.' I called that number and she said, 'He ain't been here.' So he's bugged out, he's panicked. (Later Hunter brought Ervin's car back to him. He told him what happened and of his concern for risking the revocation of his parole. Together the two drove back to the house of the crime scene. Ervin suggested they rob the house to get his money, when he realized the wealthy neighborhood in which the family lived) We started looking around the house. She had a 2-carrat ring. I got that. She had a couple fur coats, full-length sable (alcohol) and about $15-$16) (When considering what to do with the bodies) Ervin said, I'll just bury them. Well I was desperate. (After putting the bodies into garbage bags) I carried this guy and I had strept throat, and a cold, so I turned the thermostat all up. And I kept dropping him. I couldn't even lift him into the trunk (of the family's car, a Lincoln), so I put him in the back seat. I said, 'let's get rid of him. We'll come back for her as soon as possible,... We took him out to where Ervin lived. I was exhausted (from sickness and months of heavy drug use), weak. (Several hours later we) went back up there (to remove her body). It was like an oven, the heat still cranked up. And she's laying there in this bag. And I was starting to pick her up and her body expelled all these gases. It made me sick. I was puking. She was rotting. (It was) the second day after she died (The pair took the Lincoln, later abandoned it, getting a rental car which they used for a robbery in Puducah Kentucky, then it got burned up. Hunter says he later returned to Florida),...It was Ervin that got us arrested. That woman (Mildred Hodges) had written down Ervin's license when she looked out the window. (Police later found the notepad she had written it on and shaded the next sheet to find what they then found to be Ervin's car license number. A few weeks after the murders Ervin) led the police to us,... at first me and Cheek (the former Florida roommate he had ripped off). They (police) body-slammed me at my parole office....I decided to plead guilty and give Ervin what he deserved (for identifying Hunter. He says he lied to investigators, saying Ervin committed the murders along with him.)..... It never also made much sense to me that people who kill in a fit of passion are treated better in the (judicial) system than those who have robbed and killed for instance. The people that kill out of passion may have some kind of sexual insecurity. Much of the time the person who commits those crimes do so often out of a sense of poverty. But if that guy who committed the robbery earned a trade, he can earn a living, now he might stop feeling like Sam Shit. He might have some pride. The other guy with his insecurities (and kills in a fit of passion) might never be able to have a girlfriend and might do harm to some other woman. In my case which I can speak of personally, I came to prison in 1968 for a robbery and murder in Amazonia (MO). I didn't have a skill and was unloading trucks. I was 21. I had been in prison prior to that for burglary and other nonviolent offenses. While I was in prison, I learned a trade, data processing. I did about 11 years in prison for being involved in an execution-style murder. (Two years after being put on parole for that crime) I was making about $45,000 a year as a computer software engineer. I got out in 1980. In 1987, my wife's father died. And that created a real traumatic experience for her. And I was working 12 hours a day for 5 days a week. I was helping the company (in Florida) make hand-held computers to read utility meters, gas, water.. (Just out of prison) I had been working with the (Missouri) Department of Revenue. In fact if you had to get your (car) license plates-- they're still using my software. And even the man who (was a supervisor of his) testified at my court hearing (for the murders of the Hodges), saying he would hire me on work release, parole or in prison. They asked him 'do you have any fear of this man'. He said, "No. In fact he gets along with the workers better than I do. I guaranteed Dept. of Revenue two years of work. It probably was a mistake to leave (and later go to Florida). Everyone at the Revenue Dept. knew I had been in prison, that I was on parole from a murder charge. It was all accepted. It was probably a more stable environment for me. Then when I moved to Florida, it all had to be hidden. I only had a GED. Everyone had at least a bachelors degree. My boss (at the Florida firm) knew. He was also an ex-convict. After my wife and I split up (some months after her father's death), I moved out into a drug house. I was involved in the robbery(in Amazonia, which resulted in his 11 years in prison) but didn't do the shooting. My accomplice (according to BH) did the shooting and received a harsher sentence because the local prosecutor didn't like the other man. He had on one occasion shot at the prosecutor's boat and put holes in it. He (the prosecutor) barely made it to the bank before the boat sank in the middle of the Missouri River. They (court officials) didn't have much feeling for this guy. So I told the prosecutor I'd plead guilty to whatever he charged me with, right after (the county prosecuted) him. The judge was glad to more harshly punish him (his accomplice).

(On the politics of the death penalty....)

BH: When Gov. Carnahan first ran for the position of governor, he said I am opposed to the death penalty, but I will follow the law....Now he's made a complete turnaround (supporting the practice wholeheartedly) as he's running for the U.S. Senate. He recently wrote a letter to the St. Louis Post-Dispatch (in response to their series of editorials on wrongful capital convictions in Missouri), insisting as did Gov. Bush in Texas, that the state has never executed an innocent man. That's ludicrous. You can't be sure of that. If O.J. Simpson can be found not guilty; If John DuPont (of the billionaire industrialist family in Delaware) can kill his homosexual lover in front of his wife and children and not suffer anything except spend some time in a comfortable mental hospital (how can we be sure only the guilty are really punished and the innocent spared wrongful punishment? In this country). You get the justice you can pay for. The state has a long list of aggravating factors to justify imposing death, among them is the killing of a guard. And isn't that a ridiculous law? Now think about that. You are a citizen. If I kill you, no big deal. They're paying the police officer and he has armor and weapons and we're paying them. (Common citizens have no such protection)Why is their life worth more than yours?.

Rep: How would you feel about some greater sense of restorative justice, where prisoners work to earn money to give to murder victims families?

BH: (The concept is good) but not under the threat of a death sentence.... If you're in prison -- now that's punishment enough. The Department of Corrections (however) has taken the position,... they believe morally and duty-bound to further punish you, to make your life miserable.

Rep: How have they made it more miserable for you?

BH: The biggest problem is it (the prison's) overcrowded....Anytime you put a gallon of baby shit in a quart jar it's going to be overcrowded....They've got the CP (Capital Punishment) prisoners mixed in with the other prisoners. We used to be separated...I mean you're never really going to be at peace (in prison with a death sentence), but you can be peaceful...Then (prison officials) decide they've got all these problems at other prisons and we've got this $65 million maximum-security prison here-- 'That's where we should be putting them (problem prisoners).'

Rep: The Potosi prison was originally set up to incarcerate just men who had committed murder and were serving life-plus or death sentences. These days, do you have any ideas what percentage of the folks who are imprisoned here have committed other crimes instead and are here for behavioral problems instead?

BH: At least more than 50-percent. (Question of DOC???) It's causing all sorts of problems....Say for instance, there was a guy who got his throat cut (a few months ago) over in 6B and there are CP's (capital punishment prisoners) over there. And they (everybody in the wing) got locked down for 3-4 weeks. (In another situation earlier this year) I was in a drug treatment (program), got done then was switched to another unit, and we (all) got locked in our cells for three weeks (due to a different assault. Hunter got locked in a cell) with a homosexual man who shaved his legs. (Even those not involved in the assault, including some men dealing with a death sentence, are all held for the full days in their cells during these lockdowns. The CP's) are unable to use the telephone, denied legal visits with attorneys and can't visit the law library. Some people want to prepare for their appeals...

(The prison's changing) visiting policy (also makes life more difficult at Potosi). Most recently they cut the visiting hours to from 9:30-3:30 (on two weekdays plus weekends) When you've got people traveling from 200-300 miles away. They've got to get up before the sun's up. They did that to discourage visits..When they (prison officials) mess with the visiting policy, (perhaps) they don't realize they are punishing your family.... In a DOC newsletter, the department wrote that they would not liberalize their visiting policy, even though they had a reduced level of "dirty" urine tests from the prisoners. I wrote to them saying that as you noticed your rates fell soon after a woman guard was filmed (by the prison's own surveillance camera) having sexual encounters with prisoners in the canteen. She had been supplying everyone (prisoners) with drugs and they were getting dirty urines, then when she got caught, the numbers fell. Several other workers also were found to have smuggled drugs into the prison. They (officials) put it all on us. They give us urine tests, but they don't require them of guards and other workers....when (officials) crack down further, trying to prevent any of the (little) drug smuggling that prisoner's families (do), the value of it (drugs) in the prison increases. Guards are even more tempted to bring it in. I asked one guard I had known when we were imprisoned behind the Walls (at MSP, now known as the Jefferson City Correctional Center) if he remembered what it was like when there were strip searches of family members (with full-body cavity searches. We recalled)... there was an even greater amount of drugs, even some guns and a shotgun, brought in (by some Corrections workers and sold to prisoners). I've been in a bit of a fog, taking the drug Adavan-- to help deal with anxiety. Locked up, I was in the hole for refusing to work the "satellite," (an auxiliary unit of the prison's cafeteria, in which prisoners prepare and serve the meals for people isolated in the largely, disciplinary Administrative Segregation area. He had been kept there for continuing to have "dirty" urines showing drug use). They (officials) used to keep me from visits (with family members) by the urine reports, then as my time (for execution) looked more close my family said "Look here, we've supported you for 10 years. We want you to straighten up so we can come visit you (visiting privileges are routinely denied if there have been such violations). So I had 19 straight clean urine tests. They (correctional officers) were wondering, 'Now, how is he beating these urine tests?'.. (It's impossible to cheat) You just stand there and pee in the open into a jar. They could probably point out your crotch from a lineup of many such photos. I had to do more than a hundred days in Ad Seg, for refusing to work in the satellite. I told them I would not work for them to help punish prisoners through isolating them in Ad Seg. They take offense to that. Any type of rebellion. They try to break you, they don't want any individuality, no rebellion. They think if they request it you should shine their shoes... They don't like my rebelliousness. But it's not really rebelliousness. Rep: Folks on the outside often believe prisoners have an obligation to the society and should repay for the harm they caused, offering restitution.

BH: But not under threat of death, and not to help the people (prison workers) who are, one day going to kill you. That definitely fits under the conditions of slavery.. During a recent interview on 'Nightline,' someone said, 'A problem with America is they love to punish. They want to judge and punish every country around the world. They scream about democracy.' The U.S. government wiped out Native American people because they were heathen and didn't believe in the Bible. Yet when archeologists look at various cultures, they see Native American communities as among the most harmonious. When you had groupings of no more than say 200 people, people could tell if someone had a screw loose. It was very rare that they ever killed someone for an offense. Much more often they merely sent that person away (banished him or her). Men in prison often will present themselves as tough. But people in prison are not here because of their strengths.. People may want to claim 'I'm a murderer, I'm tough.' Well, it's not true. Murder, acts of aggression are spun in fear.. Any one can murder. What does it take (to point a gun and fire). My problems were, I lost my mother at three years of age. Now, I'm not going to get off into some abuse excuse-- a lot of people have lost someone, a lot have lost their mothers, a lot don't know who their mother even is. You have just got to accept it. If you don't have the strength, then you (don't survive. After my mother's death) it was not a good situation.

Rep.: I'm not saying because of such trauma, people then have a right to kill, but different occurrences surely shape who we are and what actions we take. How were you raised after her death?

BH: (After mom died) One sister went to live with an aunt, my younger sister and myself went to live my grandparents who had already raised 13 children,...in Stilwill, (eastern) Oklahoma, Cookson Hills. It was an area filled with gangsters. It's the same area as the Ozarks, the Boston Mountain chain that goes up through Arkansas. It was a pretty rough and tough neighborhood. They (grandparents) were poor but they didn't reveal much of that to us. I'm sure I was a complete terror, after I lost my mother. But that's nothing. Y'know you always hear of these CP's about to be executed, saying 'I'm mildly retarded and I suffered from childhood abuse.' Now I've already said when it came down to it (regarding my mental competency) I wanted everyone to understood that I'm a rocket scientist. (He noted with some gleeful kidding but pride of his intellect). And that I did not tolerate any abuse.... ......If we're (the state's) going to go that (immoral) route of having a death penalty, why not execute those who are mentally retarded, mentally ill? (With that way of thinking) they should be the first to go (be executed). There may be little chance of changing their conditions. Let's spare those that have a glimmer of intelligence. They (state officials) ought to save those who can be changed, who are intelligent but may be criminally inclined.

(On the racism and the death penalty)

...The history of the death penalty in Missouri, was printed in the "Let's All Cry Now Journal" (actually, the "Cry Justice Journal" printed by the New Life Evangelical Center). It listed all those executed. Besides many of them (noted from the 19th Century, it (simply) said "Slave," "Slave," "Slave." They (officials) didn't even know their name.

Reporter: (to Bert Hunter) This guy says he's an investigator working on another case. He's been sitting at a table (about 50 feet away with a notebook. No one beside myself and he are in the "L" shaped room on this side of the glass ) And he said "Oh, don't worry about me." (Soon after he left).

Bert Hunter: And we haven't even gotten to the good stuff yet, the stuff he's waiting for. .(Chuckles. Regarding his release from person after his involvement in the robbery-murder in Amazonia) Rehabilitation programs took off in the '70's...basically because prisoners were killing employees,... The straw that broke the (camel's) back was the Attica (NY) prison uprising where more than 20 people were killed. They (officials) realized people were not going to put up with it anymore. They had us in cells at MSP (Missouri State Penitentiary, built before the Civil War), where, a one-man cell had three men in it. It was overcrowded badly. You couldn't control it. there are 47 acres (on the grounds with scores) of blind spots.

(Today, rehabilitation has been largely scrapped as a idea for prisoners. Instead) the solution has been well, we'll give them all these life sentences...(Then) there are all these (really) evil bastards (in power), like wasn't it (U.S. Supreme Court Chief Judge (Rehnquist) who wanted to bring back the 'rack'. I think they should. I think they should strap (him) to it. Because what is that (such punishment)? He's only really one step away from saying 'Let's burn the witches.' If you capture a wild animal and put in a cage, like a wolf, it may starve itself to death. Or if it's caught in a trap, it may chew through its leg to get free. Now but we humans we have overpopulated this earth. We're too adaptive. (including the folks inside here become institutionalized), they adapt to this environment. They (officials) throw us in here and they (prisoners) say, 'No, I'll get along.' like sheep But the CP's, about 30 of us refused (to cooperate with officials who have integrated the death-sentenced prisoners into the rest of the Potosi population. There is no segregated 'Death Row' in Missouri). It's too much of a stress and strain. We need to have our own space. I need some space, away from everybody. I don't want to be locked in a concrete box (during a lockdown), to smell all the body odors of a cellmate, I do not want to learn all his nasty bathroom habits. Would you put two pit bulls in a pen? Well, they do it here. They've had people raped, stabbed, chunks bitten out of them. If they (DOC) officials have any problems anywhere else (in the DOC network of prisons) they send them to Potosi. Everybody here is wanting out of Potosi. (Throughout the prison) it's two men to a cell, except in Ad Seg (administrative segregation) and (a psychiatric unit) I wrote a letter to (televangelist) Larry Rice (via Darrell Mease, whose life was sparred by Gov. Carnahan commutation to honor the Pope and appease Catholic voters. Hunter had Mease write it because he is a Christian. The letter said) "Larry, what you're doing is never going to work. Most of the people may support the death penalty. You're out there telling folks 'it's cruel and unusual punishment.' You've got people (in here and on the streets who have) cut peoples' heads off, shooting people over their latté (and committing other heinous actions). Nobody's going to listen.... (Another) problem is everyone on death row is innocent. You ever seen them get on the news and say "I did it."?

Rep.: I have seen and heard of it a few times, but most of the time folks say they are innocent. Most of them I know, are lying. Still there are at least a couple who actually are innocent.

BH: There's a lot more than just a couple. I would like to shove this (claim no innocent men have been executed during his watch) down (Gov.) Carnahan's throat. I'm in jail all right. My (ex-)wife says to me, 'I don't believe you've done this.' So I said, 'Well, I'll tell you everything exactly what did happen, if you'll keep your mouth shut.' Cause I don't want to endanger this guy, who actually sold the guy this stuff (the cocaine) and actually killed them. But she (Hunter's wife/ex-wife) don't care about that.

Rep.: Well, now why wouldn't you want to identify him? He's the guy who owed you money, he's the guy who left town?

BH: I still wanted the money but I wouldn't tell on him. I mean and it wasn't her fault (his wife). She tried to call him. And she talked to him on the phone, told him he owed me money. He had hung up on her. See, I had known her. We played cards together, so anyway I finally told her (Hunter's ex-wife) the story. And she promised not to tell anyone. (Nonetheless) the next day she calls (Cole County law-enforcement officials) George Brooks (and others).. Now he (Brooks) had interviewed me. And his theory was this was a cult murder,... (Richard Hodges should have known) If you are going to buy some illicit drugs, you don't tell them (drug dealers) you aren't going to pay for them and you don't (as he and his mother threatened to) call the police. Y'know it don't work that way. I don't care if the stuff is junk. You pay or you defend yourself. And you don't defend yourself by calling the police. (Hunter expressed no remorse that the Hodges were killed) (Brooks did listen to his ex-wife. What she said didn't fit with his theories). This was not a cult murder, not a hate crime, (Brooks surmised. At the time Brooks) thinks this was a common house crime.... He fails to file a police report on the statement my wife gave. (According to her, his face turned a real pale color because it was really the only thing(Hunter's account of the killings) that really fit. And immediately he wanted her to deny that and tried to talk her out of it,.. Their was no physical evidence (of her statement).

Rep: Not having the report from the wife?

BH: They didn't believe her.... (In the trial Brooks later said) 'I didn't write anything down.' He said 'I didn't believe it.' (her account. Hunter's attorney asked Brooks ) 'Do you just write down things that you believe (during an investigation)?' 'Well no.'... The police intentionally tried to withhold evidence from me.

Rep: With Thomas Ervin, for many years you didn't publicly acknowledge you had falsely fingered him for the killings. Why are you doing so now?

BH: I told (my) lawyers about this (he limit of Ervin's involvement) years ago, but they couldn't acknowledge it, they couldn't say anything publicly because of client confidentiality. If they did, they could have been called before court, themselves. They could tell him (Ervin-- but it wouldn't really help him that much)....But I think the greatest that could happen to him would be to get a life sentence. And he's good for a life sentence, just based on his participation, his movement of the bodies (and robbery). I think that would be great for him.

Rep: From your perspective anyway? So you don't want him to get off easy?

BH: Oh, he don't want to die. He's scared to death of death. So that would be perfect for him. He can just spend the rest of his life, hid down in there. He's been in protective custody since the day he turned up here in the prisons. He says he doesn't want to be anywhere near I am in prison, that I'm an animal and all this crap.

Rep: I must admit, I'm kind of mystified. Why do you want to protect the identity of this third person?

BH: There's no good that could come of it. (His attorney) Cheryl (Rafert) says the physical evidence couldn't really help me. And if could just cause further harm to his wife. He died several years ago.

Rep: Besides what good would come of such physical findings? Could it help spare your life? And even if it could, would you even want that ?

BH: No, I don't want to be spared. I want this nightmare ended.

Rep: Could you say what you wrote in your letter to the Missouri Supreme Court, wanting them to set an execution date for you, and why you did write the letter.

BH: I continued to refuse to work the 'satellite' system. I had spent five months cleaning shower stalls. That was okay with me and the guards....And they were cleaner than they had ever been...(One particular prison worker, the functional unit manager however, pushed to have him work the satellite). My family told me 'look we've been there for you and your time might be limited so agree to this so we may be able to visit with you. I agreed (to work in the satellite), then they paired me with a Black Muslim with an attitude. I told (my caseworker) if I would be in a cell with him (all the time), there would be some (fighting) words exchanged. And I would not put up with it (wouldn't accept the housing assignment).. A federal judge then ordered me to cell with him. I said, 'I don't give a shit. I'm not going to do it.'

Rep: Are you saying you wouldn't share a cell with any African-American?

BH: Only if I knew him, and then in that case, only for a very short time. But you don't do that in prison (have an integration of prisoners within cells). The only people who do that in prison are punks (prisoners who have typically been forced to routinely perform homosexual acts.) (Hunter realizing his refusal to cooperate with prison officials, would mean a loss of visits with loved ones, says he got more and more perturbed with the prison system.) There were nine of us with no stays, waiting for execution dates,...Why make my family go through more of this bullshit, I thought. So I'm tired of this shit, so I wrote the letter. I still agree with it. I thought about it and wouldn't take it back. And like Cheryl (Rafert, his attorney) says it proves their (the Missouri Supreme Court's) immaturity and their lack of professionalism. Now when I told her I had written a letter, she called them to see if they had received the letter. They told her, 'yes we had gotten a letter from him. It had his signature on it. We do not know that he wrote it.' See they're already safeguarding themselves because they don't want this to come out that, 'hey this nut wrote you a letter-- with a history of suicide (attempts),...And we jumped right on it.'

Rep: Now what did you say in the letter?

BH: 'Dear Witchburners-- Why don't you swell your little testies (testicles) up and set an execution date for me. Put on your best robes and swell yourself just as large as you can and set me a date. I'm tired of this shit. I'm tired of these hillmonkeys (rural Ozark residents who work at the prison are) being put in a position that they feel they are superior to me.' I said 'please destroy this letter as soon as you get it because we would not an is-he-crazy? game. I'm sure this will not bother you morally or ethically as witnessed by your long history (of killing, already ordering the execution of 42 other people in Missouri since 1989).' Well, they proved my point ( setting his execution date first among the nine men awaiting a death date. It showed how little capital punishment system has to do with signaling out the most heinous/brutal of all offenders, and more to do with politics and officials' personal vendettas.) And I don't have a fear of death. Compared to this (life in prison), what's death?

442 F.2d 625

Bert Leroy HUNTER, Appellant,
v.
Harold R. SWENSON, Warden, Appellee.

No. 20601.

United States Court of Appeals, Eighth Circuit.

April 26, 1971.
As Amended on Denial of Rehearing May 21, 1971.

Before VOGEL and ROSS, Circuit Judges, and STEPHENSON, Chief District Judge.

ROSS, Circuit Judge.

Hunter brought this action for a writ of habeas corpus against Swenson, the warden of the Missouri State Penitentiary. The trial court entered an order denying the petition and refusing to grant an evidentiary hearing. We reverse with directions to the trial court to hold an evidentiary hearing.

Hunter was charged with first degree murder in an amended information filed in the Circuit Court of Andrew County, Missouri on March 10, 1969. He pleaded not guilty and was convicted after a trial to a jury on May 1, 1969. After his motion for new trial was overruled, he was sentenced to life imprisonment. On appeal, the Missouri Supreme Court affirmed the conviction. State v. Hunter, 456 S.W.2d 314 (Mo.1969).

At Hunter's trial there was no direct evidence linking him to the killing except his confession. The only issue briefed and argued before the Supreme Court of Missouri was the admissibility of the confession. At his trial and on appeal, Hunter claimed that it was not voluntary in that it was induced by repeated and protracted custodial interrogation without counsel and by false promises of the police that he would receive help and a reduced charge for his cooperation. Hunter also claimed the confession should not have been received in evidence because his constitutional right to counsel was not knowingly and intelligently waived.

The murder occurred on June 16, 1968. On June 18, 1968, Hunter was interrogated by Sgt. Rhoades of the Missouri Highway Patrol and released. He was again interrogated later the same day by Sgt. Rhoades and Sgt. Shirley, by the prosecutor, Mr. Lance, and by other law enforcement officials. He was interrogated further on June 19 or 20 by Sgt. Shirley. On July 15, Hunter was again questioned while in custody of the police in Atchison, Kansas by Sgt. Shirley and another trooper. The interrogation was continued on July 16 and at that time there was some discussion initiated by Hunter about making a deal for a lesser charge and getting the Kansas charges dropped in return for Hunter's cooperation. Sgt. Shirley agreed to convey this suggestion to Mr. Lance, the prosecutor. He also told Hunter that another individual made a partial statement about the murder implicating Hunter. Hunter made oral statements at the time indicating some knowledge of the murder but denied having been at the murder scene and declined to make a written statement.

On August 5, 1968, Sgt. Shirley and Sgt. Rhoades, together with a court reporter, Mrs. Sowards, visited Hunter in jail in Atchison, Kansas. This contact was the result of a message to Sgt. Shirley from a friend of Hunter conveying Hunter's request to talk to Sgt. Shirley again. At that time, Hunter gave a confession to Sgt. Shirley and Sgt. Rhoades which was transcribed by Mrs. Sowards and signed and initialed by Hunter. Prior to signing the confession, Hunter was formally advised of his rights by Sgt. Rhoades from a card which he carried with the standard questions and warnings printed thereon.

These facts are not seriously in dispute. The disputed point is whether or not on August 5, 1968, immediately prior to the confession of Hunter, Sgt. Shirley promised or implied that the prosecutor, Mr. Lance, was willing to consider a reduced charge in return for Hunter's cooperation in the form of the signed confession.

The Supreme Court of Missouri commented on that question as follows:

"There is the further significant fact, which we find from the evidence, that there was no discussion of the so-called `deal' on the 5th of August when Hunter was finally ready to give his confession. If in fact there had been such an understanding Hunter, who in his testimony showed that he knew there was such a thing as a written guarantee of immunity, would doubtless have insisted upon at least an oral confirmation of the deal before signing away his rights and confessing his crime."

State v. Hunter, supra, 456 S.W.2d at 321.

The United States District Court in its order denying the writ of habeas corpus made a similar finding.1

Prior to Hunter's original trial, his attorney filed a motion to suppress the confession. The state trial court (Judge Yeaman) on March 11, 1969 held a hearing on that motion at which hearing Hunter, Sgt. Shirley, and Sgt. Rhoades testified. The motion to suppress was overruled.

At the trial of the murder case in state circuit court, the Court (Judge Schoenlaub) held a hearing on the voluntariness of the confession outside the hearing of the jury. During this hearing Hunter and Mrs. Sowards testified, and Sgt. Shirley's testimony given at the hearing on the motion to suppress was received in evidence by stipulation of the parties. Sgt. Rhoades did not testify at this hearing and his earlier testimony was not received in evidence at this time.

After the Court had determined that the confession was voluntary and could be received in evidence, the jury returned and the trial continued.2

Sgt. Shirley then testified concerning the circumstances surrounding the confession. Mrs. Sowards also testified to the effect that on August 5, 1968 she was not in the interrogation room at all times, but she did not hear either Sgt. Rhoades or Sgt. Shirley make any promise or convey any message from the prosecuting attorney, Mr. Lance, to Hunter relating to possible reduction of the charges. Again Sgt. Rhoades did not testify and his testimony from the hearing on the motion to suppress was not received in evidence.

The testimony of Sgt. Rhoades which was not presented except at the March 11, 1969 hearing on the motion to suppress was significant in two ways: First, Sgt. Rhoades testified he had not been present when Sgt. Shirley interrogated Hunter on July 15 and 16, so it is obvious that if he heard any communication from Sgt. Shirley to Hunter purporting to convey a message from the prosecutor, it had to be on August 5, 1968. Secondly, his testimony is clear that on August 5, 1968 he overheard Sgt. Shirley tell Hunter immediately prior to obtaining Hunter's confession something "similar to `Mr. Lance said it's possible.'" Rhoades also testified that he thought Sgt. Shirley meant by this that "[i]f Bert Hunter were to give a statement where he would be testifying against Carl Paxton as to Mr. Lyle's death, then there might be some leniency shown to Bert Hunter by the prosecuting attorney."3

A study of the transcript of the testmony at the March 11, 1969 hearing and the testimony at the trial convinces this Court that the conclusions reached by the Supreme Court of Missouri on the appeal and by the United States District Court in this habeas corpus proceedings were based, at least in part, upon an incorrect determination that the interrogation of Hunter on August 5, 1968 prior to his confession, did not include any discussion of a possible "deal" on the requested reduction of the charge to be filed. Whether a correct determination of this fact would have changed the decision reached by either court is not known, but Hunter claims that he is entitled to have this decision made on the basis of a correct factual determination after careful scrutiny of the state court record as a whole and after an evidentiary hearing to clarify the facts in dispute; especially since both the Supreme Court of Missouri and the Federal District Court for the Western District of Missouri placed some emphasis on the timing of the conversations relating to the possibility of reduced charges.

I. EXHAUSTION OF STATE REMEDIES

The contentions raised by Hunter in this habeas corpus action are substantially the same as those raised on his appeal to the Supreme Court of Missouri. Therefore, for the purpose of this action, Hunter has exhausted his state remedies even though he has not complied with state post conviction procedures under Missouri Supreme Court Rule 27.26, V.A.M.R. This Court held in Edwards v. Swenson, 429 F.2d 1291, 1293 (8th Cir. 1970) that a Missouri prisoner need not pursue his post conviction remedy under Rule 27.26 where the merits of his contentions had already been determined by the Missouri Supreme Court on direct appeal. See also Connors v. State, 422 F.2d 122, 125 (8th Cir.), cert. denied, 398 U.S. 954, 90 S.Ct. 1881, 26 L.Ed.2d 297 (1970); Kennedy v. Sigler, 397 F.2d 556, 559 (8th Cir. 1968). Accord, United States ex rel. Adams v. Pate, 418 F.2d 815, 817 (7th Cir. 1969); Smith v. Peyton, 408 F.2d 1009, 1010 (4th Cir. 1968); Whippler v. Balkcom, 342 F.2d 388, 390 (5th Cir. 1965).

II. ALLEGATIONS CONCERNING ADMISSIBILITY OF THE CONFESSION

The Supreme Court of Missouri in State v. Hunter, supra, 456 S.W.2d at 316, stated the law of the State of Missouri concerning the admissibility of confessions in that state as follows:

"[C]onfessions induced by the influence of hope of leniency, State v. Ball, Mo.Sup., 262 S.W. 1043, hope of clemency, State v. Hart, 292 Mo. 74, 237 S.W. 473, or hope of mitigation of punishment for the crime charged, or of `worldly advantage,' State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76, are not voluntary and are not admissible in evidence."

In so stating the law, the Missouri Supreme Court did not cite State v. White, 316 Mo. 576, 292 S.W. 411 (1927), a case which presents a fact situation very similar to that of this case. White, while in jail and charged with murder in the first degree, confessed after the prosecuting attorney had promised him he would recommend minimum punishment and had told him that a co-defendant had confessed. The Court stated:

"By all the authorities that confession was not voluntary. The defendant was in jail at the time, and his interview was with the prosecuting attorney and the sheriff — persons in authority — and the law presumes that a confession thus induced is involuntary."

State v. White, supra, 316 Mo. at 580, 292 S.W. at 412. The distinguishing factor between the White case and that of Hunter is that the alleged promise was made directly, rather than indirectly, by the prosecuting attorney and was made after the murder charge had been filed. However, this is a distinction without a substantial difference inasmuch as the alleged promise was made by a "person in authority". In Hunter's case, Sgt. Shirley was such a "person in authority".

This Court, however, must apply the federal standard in cases such as this. As stated in Cummings v. United States, 398 F.2d 377, 381-382 (8th Cir. 1968):

"The standard to be applied by this Court in determining whether a confession is incompetent because not voluntary `is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person "shall be compelled in any criminal case to be a witness against himself."' Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). `Under this test, the constitutional inquiry is not whether the conduct of * * * officers in obtaining the confession was shocking, but whether the confession was "free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence."' Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964)."

See also Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963). In Brady v. United States, 397 U.S. 742, 754, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970), the Supreme Court noted:

"Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess."

Since Hunter has stated in his petition for habeas corpus that his confession was procured by false promises of a reduced charge for his cooperation at a time when he was in jail and unrepresented by counsel, we conclude that his petition did make allegations which would, if proven to be correct, properly be the basis for the relief requested. Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).

III. NECESSITY OF EVIDENTIARY HEARING

Since Hunter has exhausted his state remedies and made allegations which if proven to be true could be the basis for granting the writ, we pass now to the question of whether an evidentiary hearing should have been granted.

In the case of Townsend v. Sain, 372 U.S. 293 at 313, 83 S.Ct. 745, at 757, 9 L.Ed.2d 770 (1963) the Supreme Court held "that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing." In 1966 these requirements were codified by 28 U.S.C. § 2254(d). See Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970); Howard v. Swenson, 404 F. 2d 469, 472 (8th Cir. 1968); White v. Swenson, 261 F.Supp. 42, 60 (W.D.Mo. 1966) (en banc); Lay, Post Conviction Remedies and the Overburdened Judiciary: Solutions Ahead, 3 Creighton L. Rev. 5, 11-12 (1969). 28 U.S.C. § 2254(d) provides that the decision of the state court shall be presumed correct unless the petition comes within one of a number of specified exceptions. One of the exceptions is "that the material facts were not adequately developed at the State court hearing." 28 U.S.C. § 2254(d) (3); Townsend v. Sain, supra, 372 U.S. at 313, 83 S.Ct. 745; Hawkins v. Bennett, supra, 423 F.2d at 950; Howard v. Swenson, supra, 404 F. 2d at 472; Roach v. Bennett, 392 F.2d 743, 748 (8th Cir. 1968). Another exception is "that such factual determination is not fairly supported by the record." 28 U.S.C. § 2254(d) (8); Townsend v. Sain, supra, 372 U.S. at 313, 83 S.Ct. 745; Hawkins v. Bennett, supra, 423 F.2d at 950; Howard v. Swenson, supra, 404 F.2d at 472. Accord, Anderson v. Nelson, 432 F.2d 55, 56 (9th Cir. 1970); O'Neal v. Smith, 413 F.2d 269, 270-271 (5th Cir. 1969). Both of these exceptions tend to overlap. In looking for guidance to their meaning, we turn to Townsend. In speaking of these exceptions, Townsend observed that:

"This Court has consistently held that state factual determinations not fairly supported by the record cannot be conclusive of federal rights." Townsend, supra, 372 U.S. at 316, 83 S.Ct. at 758.

Townsend then provided:

"Where the fundamental liberties of the person are claimed to have been infringed, we carefully scrutinize the state-court record. * * * The duty of the Federal District Court on habeas is no less exacting." Townsend, id.

and

"The duty to try the facts anew exists in every case in which the state court has not after a full hearing reliably found the relevant facts." Townsend, supra, at 318, 83 S.Ct. at 759.

Having carefully scrutinized the state court records and for reasons already mentioned, this Court believes that Sgt. Shirley's discussion with Hunter concerning a possible lesser charge on August 5, 1968 was a material and relevant fact which, because of the omission of Sgt. Rhoades' testimony at the state court trial of Hunter, was not adequately developed. In determining that there was no discussion of the so-called "deal" on August 5, 1968, the State Supreme Court appears to have made an incorrect fact determination that could have influenced its primary decision that Hunter's confession was voluntary. Therefore, in accordance with 28 U.S.C. § 2254(d) (3) and (8) and Townsend, an evidentiary hearing on the allegations contained in Hunter's petition is mandatory.

Reversed and remanded with directions to hold an evidentiary hearing.

*****

Notes:

"On August 5, before making his statement, Hunter, after being explained his rights, signed a waiver of those rights, which included the statement, `No promises or threats have been made to me and no pressure of any kind has been used against me.' Sgts. Shirley and Rhodes [sic] and Mrs. Sowards, the stenographer, testified that no discussion took place on this date about a deal." (emphasis supplied)

In the same opinion, the United States District Court stated:

"There was no definite promise to Hunter, only a statement that a lesser charge might be considered. Hunter did not immediately act upon that statement. In fact, it was almost three weeks later before he made any incriminating statements. At the time he did make a confession, there was no discussion of a `deal'."

In ruling on the admissibility of the confession the state trial court made the following observation:

"I am concerned about the testimony of Sergeant Shirley that was found on page twenty-seven of the March 11 transcript. The legal effect of those words is a matter that will have to be determined by an appellate court, if this matter is appealed. Also, I do have considerable doubt because of that one point. I am going to overrule the objections."

The testimony of Sgt. Shirley (on pages 26, 27 and 28 of the March 11. 1969 transcript) which concerned the court is as follows:

"Q. And you testified that Hunter asked to relay a message to Mr. Lance concerning a reduced charge? You testified to that? A. Yes.

Q. Did you relay that? A. Yes, I did.

Q. In return did you relay a message back to Mr. Hunter?

A. The only message I ever relayed back to Mr. Hunter was Mr. Lance informed me — I must qualify this — Mr. Hunter also requested Mr. Lance contact him personally at the jail. This information was relayed to Mr. Lance. But I didn't relay any information back to him, other than I told him that Mr. Lance told me that when Mr. Lance was satisfied he would cooperate and give a truthful statement, at that time he would consider coming to Atchison.

Q. Well, when you relayed the information back to Mr. Lance concerning the reduced charge — You did relay that information you said to Mr. Lance?

A. Yes, I did sir.

Q. After talking to Mr. Lance didn't you go back down and talk to Mr. Hunter and tell him what Mr. Lance had told you to say? A. Yes. I just repeated what he told me to say.

Q. Didn't Mr. Lance tell you to say that if he would cooperate it's possible, very possible that they would consider a lesser charge?

A. That's right.

Q. Then you told Mr. Hunter that?

A. I said `it's possible'.

Q. You said it's possible, it's possible that Mr. Lance would consider a lesser charge if he would cooperate? You relayed that message to Mr. Hunter?

A. I did.

Q. Those were words spoken by Mr. Lance that you relayed to Mr. Hunter in the Atchison County Jail?

A. Right.

Q. Prior to the time of the statement?

A. Yes, sir."

The testimony of Sgt. Rhoades (on pages 36, 39-41 of the March 11, 1969 transcript) includes the following:

"Q. Sgt. Rhoades, more specifically, did you ever talk to Mr. Hunter at the Atchison County Jail in Kansas?

A. Oh, yes. Pardon me. On August 5.

Q. How about prior to August 5th, had you accompanied Sgt. Shirley down there on any prior trips that he had made to Atchison to talk to Mr. Hunter?

A. No.

* * * * *

Q. Sgt. Shirley, in the course of your direct testimony where you were being questioned about whether any promises of leniency had been made to Mr. Hunter, you made reference to `its [sic] possible', and that's where you left off, would you explain that for me please?

A. All I'm aware of, Sgt. Shirley, Mrs. Sowards and myself and Bert Hunter were in the room in the Atchison County — Pardon me, the Sheriff's Office in Atchison, Kansas, and Sgt. Shirley made a statement similar to `Mr. Lance said its [sic] possible'. Now, this is all I know of.

Q. Do you know what he was referring to at that time, what Sgt. Shirley was referring to?

A. No, sir.

Q. You don't know what prompted that statement from Sgt. Shirley to Mr. Hunter?

A. Well, can I say what I think prompted it? I don't know. I don't know what prompted it.

Q. I'm asking you if you know what prompted it?

A. No, actually not.

Q. Did you know what Sgt. Shirley was talking about?

A. I thought I did, yes.

Q. Tell me what you thought he was talking about.

A. Well, if Bert would give — If Bert Hunter were to give a statement where he would be testifying against Carl Paxton as to Mr. Lyle's death, then there might be some leniency shown to Bert Hunter by the Prosecuting Attorney. This was what Bert Hunter wanted you might say, leniency if he were to testify.

Q. This was your understanding and your impression then from that conversation, or from that statement by Sgt. Shirley to Mr. Hunter?

A. That this was a message, `its [sic] possible'.

Q. A message from whom Sgt. Rhoades?

A. Well, see I don't know. Sergeant Shirley was telling Bert `its [sic] possible'. Do you mean do I know who it was from?

Q. Yes? A. No, sir.

Q. Did Sgt. Shirley say he was relaying it from anyone?

A. Well, Sgt. Shirley — As I recall, I would have thought it was a relay from Mr. Lance on this.

Q. To Mr. Hunter? A. Yes, sir.

Q. Sgt. Rhoades, this conversation, was it before or after Mr. Hunter signed the waiver, I believe which has been marked Exhibit Number 1? Yes, State's Exhibit 1.

A. I would say that was prior to this statement."

*****

STEPHENSON, Chief District Judge (dissenting).

I dissent. I am satisfied, from an examination of the entire record herein, that the factual issues relating to appellant's claim that his statement1 was involuntary were fully developed and resolved in state trial court proceedings, after a full and fair hearing which resulted in a finding that appellant's statements, written and oral, were voluntary. This finding was amply supported by the record before the state trial court. Appellant is not entitled to another plenary hearing on the same issues. 28 U. S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 312-316, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1913); Wade v. Yeager, 377 F. 2d 841, 844 (3d Cir. 1967), cert. denied, 393 U.S. 893, 89 S.Ct. 218, 21 L.Ed.2d 173 (1968).

On March 11, 1969, more than six weeks prior to trial, the state court conducted a hearing on appellant's motion to suppress the statement in dispute upon the grounds that the same was involuntary and given by the appellant while he was under the impression that he was to be given leniency if he cooperated in giving a statement. Appellant, who was represented by two attorneys, testified during this hearing, as did the two officers, Sgt. Shirley and Sgt. Rhoades, who were present when his statement was taken. After hearing the evidence, Judge Yeaman specifically found that the statement in question "* * * was voluntarily made by the defendant, was not procured by coercion or threats or through fear, was not induced by promises of leniency. The Court finds that the statement in question is competent evidence and therefore overrules the defendant's objections and admits the statement in evidence." The Court, in response to a question by counsel for the defendant, made it clear that the ruling of admissibility applied to all oral statements, as well as the written statement in question. After ruling on the motion to suppress, the Court conducted a hearing on defendant's motion to produce, inspect, and copy, during which the prosecuting attorney was examined under oath concerning the existence or non-existence of any information in his possession favorable to the defendant. At the close of the hearing, the Court spoke concerning the prosecutor's duty and burden in the subsequent trial to establish that the statements taken from the defendant were voluntary, requested the court reporter to transcribe that part of the record having to do with the motion to suppress and directed him to furnish a copy to the court, defense counsel and the prosecutor.

During the trial which commenced April 30, 1969, a hearing concerning the voluntariness of appellant's statements was held out of the presence of the jury in compliance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). At the commencement of the hearing, the trial court2 made specific inquiry of both of defendant's attorneys and defendant Hunter as to whether they had had an opportunity to read the transcript of the hearing before Judge Yeaman on the motion to suppress. Both the defendant and his attorneys replied in the affirmative. Counsel for the defendant then stated that the defendant was prepared to agree that Sgt. Shirley's testimony as it was previously given on the motion to suppress be used in the trial, reserving the right to offer additional testimony. The defendant specifically stated he was in agreement with this procedure. The transcript of Sgt. Shirley's testimony given in the hearing on motion to suppress was then received in evidence. Lois Sowards, who transcribed defendant's statement, was then examined and thoroughly cross-examined concerning the taking of the written statement and oral conversations that she heard between defendant and the patrolmen when she was present. Sgt. Shirley was also called for a brief interrogation. Defendant Hunter took the stand and testified in great detail concerning his various conversations with the patrolmen. At the close of his direct testimony, defendant's counsel invited him to make any statement to the court concerning matters that were not covered. The defendant also offered in evidence a transcript of a part of the testimony of Sgt. Shirley given at the preliminary hearing on October 2, 1968.

After hearing the arguments of counsel, the trial court expressed some concern as to the legal effect of the words used by Sgt. Shirley in the hearing on the motion to suppress and observed that that would be a matter for the Appellate Court.3

My colleagues are concerned because the Supreme Court of Missouri (State v. Hunter, 456 S.W.2d 314 at 321) and the United States District Court found there was no discussion of a "deal" on August 5, 1969, when appellant made and signed his statement. Taking the evidence favorable to appellant, the most that can be said is that Sgt. Shirley advised appellant "* * * its possible that Mr. Lance [prosecutor] would consider a lesser charge if he [appellant] would cooperate." It is very difficult for me to read into these words a promise, express or implied, that leniency would be shown in exchange for a statement. When other factors are considered, including appellant's long criminal record4 and his expressed antagonism toward prosecutor Lance in the early stages of the investigation, I find it impossible to conclude from this record that appellant's statements were involuntary or induced by promises of leniency. The most that can be said for appellant is that he was familiar with the criminal law and knew of his rights as well as the choices open to him. He wanted to make a deal, failing in this he could always claim he thought he had one, or do as he threatened, claim that he was not advised of his rights.5

I fail to see the value of another evidentiary hearing on the issue of voluntariness. This matter was originally gone into in the preliminary hearing on October 2, 1968. It was thoroughly ventilated in the hearing on the motion to suppress heard on March 11, 1969. Transcripts of the foregoing were available to appellant and his counsel at the time of the trial. Appellant stipulated that the transcript of Sgt. Shirley's testimony given in the hearing on the motion to suppress be made a part of the record on the issue of voluntariness. Sgt. Shirley was also available and did testify briefly, and was available for cross-examination by the defendant. A transcript of Sgt. Rhoades' testimony given during the hearing on the motion to suppress was likewise available to defendant and his counsel. Sgt. Rhoades had testified that he heard Sgt. Shirley say "its possible." On cross-examination he stated he thought this meant there might be some leniency shown to defendant by the Prosecuting Attorney if the defendant were to give a statement. He also volunteered that "its possible" may have related to the prosecuting attorney coming down to see the defendant. Neither side chose to call Sgt. Rhoades or use the transcript of his testimony. After the trial court's determination of voluntariness, appellant's statements were admitted. Thereafter, the jury was properly instructed that before the jury could consider an alleged statement of the defendant, oral or written, it must have been made voluntarily.

I am satisfied that appellant had a full hearing and that all of the relevant facts were developed under the guiding hand of counsel.6 Proper findings, amply supported by the evidence, were made by the trial court. The Supreme Court of Missouri has affirmed the finding of voluntariness. I would affirm the district court's denial of the petition and its refusal to grant an evidentiary hearing herein.

*****

Notes:

At issue is the voluntariness of a written statement and oral statements made in connection therewith

Judge Schoenlaub presided. Defendant was represented by two attorneys, but they were not the same attorneys who represented him at the hearing on the motion to suppress heard before Judge Yeaman

"THE COURT: I am concerned about the testimony of Sergeant Shirley that was found on page twenty-seven of the March 11 transcript. The legal effect of those words is a matter that will have to be determined by an appellate court, if this matter is appealed. Also, I do have considerable doubt because of that one point. I am going to overrule the objections. It is the finding of this Court that the defendant was adequately advised of his rights under the Constitution as shown by Plaintiff's Exhibits 2 and 4 and the testimony of Sergeant Shirley concerning the advice which he did give to the defendant. It is further the finding of this Court that the statements were voluntarily made by the defendant; that they were not procured by coercion or threats or through fear and were not induced by promises of leniency. The Court, therefore, finds that these statements in question are constitutionally admissible and competent evidence and, therefore, the defendant's objections are overruled and the statement, Plaintiff's Exhibit 3, is received in evidence, and the witness will be permitted to testify concerning the oral statements which the defendant also made." (the testimony of Sgt. Shirley is set out in Fn. 2 of the majority opinion.)

Apparently four felony convictions in Kansas. Two in Missouri

Sgt. Shirley testified during the trial:

"Q Sergeant Shirley, you were present at the time this statement I read was made, is that correct?

A Yes.

Q You were asking at least some of questions?

A I asked the majority of them.

Q What else, if anything, did Mr. Hunter say on that date?

A Well, I asked Mr. Hunter what he thought would happen when this statement was signed and brought back, in the event that the Andrew County Prosecuting Attorney saw fit to file a charge of first-degree murder, and he stated to me at that time, as I related last night, practically the same thing. That he would state that I had not informed him of his rights and that he had not understood his rights and he said, `They will believe me and not you,' and then again he reiterated the fact he had two witnesses, one of which was a reverend, that would attest to the fact he had stayed at his home that night, and again he said he would have himself declared mentally incompetent."

Cf. Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970)