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O'GUINN v. DUTTON

March 31, 1993

KENNETH WAYNE O'GUINN
v.
MICHAEL DUTTON



The opinion of the court was delivered by: L. CLURE MORTON

 Kenneth Wayne O'Guinn has confessed to murdering two women and assaulting another. He is now serving a life sentence for aggravated rape and awaiting a death sentence after his conviction of first degree murder. After affirmance on appeal and two rounds of post-conviction proceedings in state court, he now petitions this court for writ of federal habeas corpus under 28 USC § 2254. Because the State of Tennessee obtained his confession in violation of his privilege against self-incrimination and because he received ineffective assistance of counsel during sentencing, this court will grant the petition and issue a writ of habeas corpus to the respondent, Michael Dutton.

 I. PROCEDURAL HISTORY

 The Tennessee Supreme Court affirmed on 24 March 1986, State v. O'Guinn, 709 S.W.2d 561 (Tenn. 1986), and the United States Supreme Court denied certiorari on 6 October 1986. O'Guinn v. Tennessee, 479 U.S. 871 107 S. Ct. 244, 93 L. Ed. 2d 169 (1986). Since then, O'Guinn has filed two state post-conviction petitions, each addressing different issues. *fn2" The trial court dismissed the first on 5 July 1988. The Tennessee Court of Criminal Appeals affirmed on 30 August 1989, and the Tennessee Supreme Court denied leave to appeal on 2 January 1990. The second petition was dismissed on 6 September 1989. The Court of Criminal Appeals affirmed on 9 May 1990, and the Tennessee Supreme Court denied leave to appeal on 30 July 1990.

 II. FACTS

 The facts involving O'Guinn's confession are very simple. On 4 July 1983, Alabama authorities arrested O'Guinn for the assault and rape of an Alabama woman named Muller. He was represented on that charge by attorney Mark Sandlin. O'Guinn spoke freely with Alabama investigator Duffey; he admitted the assault but denied the rape. However, a week later when Duffey read him his Miranda rights and asked about Muller's murder, O'Guinn stated that since murder was involved, he should have an attorney. He could not afford to hire Sandlin, so he requested that one be appointed.

 According to the Alabama suppression hearing transcript, Duffey explained that O'Guinn could have an attorney, but that he would be appointed only after they went to court. About three weeks later, on 12 August 1983, O'Guinn incriminated himself in Muller's murder. Because Duffey misinformed O'Guinn of his rights, the trial court suppressed O'Guinn's statements relating to the Alabama murder. The Alabama Court of Criminal Appeals affirmed in State v. O'Guinn, 462 So. 2d 1052 (Ala. App. 1985), on the grounds that O'Guinn's waiver of the right to have counsel present was not knowing and intelligent. Id. at 1054.

 On the day O'Guinn confessed to the Alabama murder, 12 August 1983, Agent Leach of the Tennessee Bureau of Investigation interrogated him concerning the murder of Sheila Cupples. When Leach arrived, he did not advise O'Guinn of his Miranda rights because Duffey told him he had already done so. *fn3" Consequently, Leach relied on Duffey's reading and the meaning O'Guinn attached to it; that he was not entitled to have an attorney present during questioning until he appeared in court. O'Guinn then confessed that he murdered Cupples.

 III. DISCUSSION

 Of the issues raised in the petition, the court considers only two to have any merit. The others will be mentioned only briefly. The dispositive issues involve O'Guinn's privilege against self-incrimination and his sixth amendment right to the effective assistance of counsel at the sentencing phase of his trial. We note at the outset that the function of this court in habeas corpus proceedings is not to pass upon the question of guilt or innocence, but only to decide whether the petitioner's conviction and sentence were obtained constitutionally.

 A. The Privilege Against Self-incrimination.

 After carefully reviewing the record, the court finds as follows:

 
1. The Alabama suppression hearing transcript shows that roughly one week after O'Guinn's arrest on the Ivey rape/assault charges, Alabama investigator Duffey read O'Guinn his Miranda rights incorrectly, leading O'Guinn to believe that the only way he could obtain an attorney during questioning was to go to court first. This is the way O'Guinn understood his rights during the entire four-week interrogation period until he confessed. *fn4"
 
2. Special Agent Jimmy Leach of the Tennessee Bureau of Investigation questioned O'Guinn on 12 August 1983 regarding the Cupples murder in Jackson, Tennessee, while O'Guinn was still in custody of the Alabama authorities. During this interrogation, O'Guinn confessed to the Cupples murder.
 
3. When Leach arrived, he did not read O'Guinn his rights. Instead, he determined that Duffey had, and proceeded to take O'Guinn's confession. *fn5"

 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), requires O'Guinn's waiver of his right to counsel during questioning to have been knowing and voluntary. For a waiver to be knowing, it must be made with a "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). *fn6" O'Guinn's uncontradicted testimony in the Alabama suppression hearing indicates that investigator Duffey misinformed O'Guinn of the nature of his right to counsel. Therefore, his "waiver" of the right to have counsel present during questioning regarding the Alabama murder could not have been knowing. As to the interrogation regarding the Tennessee murder, there is no evidence that any Tennessee authorities misinformed O'Guinn of his rights, but the record does clearly show that before O'Guinn confessed, Agent Leach failed to read him his rights at all. Instead, he relied on the fact that the Alabama investigator had already read them. In doing so, Agent Leach assumed the meaning Duffey had conveyed to O'Guinn concerning those rights. There, too, O'Guinn's waiver could not have been knowing.

 We note here that we disagree with the holding of the Tennessee Supreme Court in affirming the trial court's denial of the motion to suppress. That court held that the trial court's denial of the motion resolved the question of O'Guinn's credibility against him. To reach this conclusion, the Supreme Court had to presume that the trial court found O'Guinn's testimony concerning his request for counsel to contradict the State's evidence. *fn7"

 This court cannot agree with that holding. Considering the record as a whole, the Tennessee suppression transcript is ambiguous on this point. In that hearing, O'Guinn's attorney asked Duffey the following questions:

 
Q: Now isn't it true at a certain point in time that Mr. O'Guinn had indicated to you that if you were going to continue to discuss murder that he better have his lawyer?
 
A: No, sir, not to my knowledge.
 
. . .
 
Q: Now, I'm going to ask you - show you a document first I suppose. I'll ask you if you can recall in that hearing that you made the statement that Mr. O'Guinn did say that or could have said that?
 
A: No, sir, I don't remember saying that in the motion to suppress evidence down there. I was asked did he request an attorney and I told him not to my knowledge because in the interview on August the 12th of 1983, Kenneth Wayne O'Guinn was advised of this rights by me on tape, and he answered that he understood his rights. At no time to my knowledge did Kenneth Wayne ask for an attorney.

 Duffey could truthfully answer as he did if he believed that the lawyer's questions at the Tennessee suppression hearing referred to the 12th only. Indeed, the Alabama suppression transcript contains the following dialog specifically referring to the events of the 12th:

 
Q: Now, prior to his breaking down and crying, did anybody threaten him or harm him in any fashion that caused him to cry?
 
A: No, sir.
 
A: No, sir.

 However, as noted above, *fn8" investigator Duffey did state at the Alabama suppression hearing that O'Guinn "could have" requested an attorney when first questioned about the Muller murder, but that he did not remember. He also admitted that he "might" have told O'Guinn that he would get an attorney when he got to court. His certainty at the Tennessee hearing mirrors that which he displayed at the Alabama hearing when asked specifically if O'Guinn requested an attorney on the 12th. But when asked at the Alabama hearing whether O'Guinn had requested an attorney the week following his arrest, Duffey admitted it was a possibility. *fn9" The only reasonable conclusion, then, is that Duffey testified truthfully at the Tennessee hearing, but that he misunderstood the lawyer's question to refer only to whether O'Guinn requested counsel on the 12th. Consequently, the testimony at the Tennessee suppression hearing was not in conflict, and because there was no conflicting testimony, this court cannot agree that the trial court necessarily resolved O'Guinn's credibility against him. *fn10"

 Considering the record as a whole, this court finds that O'Guinn's waiver of the right to have counsel present when he confessed to the murder of Sheila Cupples could not have been made with a "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Consequently, the confession should have been suppressed. Furthermore, the court finds that the failure to suppress did not result in harmless error since the confession constituted the most important evidence at O'Guinn's trial. Without it, no reasonable trier of fact could find him guilty beyond a reasonable doubt based solely on the other evidence at trial. *fn11"

 B. Violation of Due Process at Sentencing.

 The following is the entire presentation of evidence at the sentencing phase of O'Guinn's trial.

 
THE COURT: Ladies and gentlemen, there is another hearing, but this shouldn't take near as long to charge you as the other one. I'm going to ...

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