ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA C.A. No. 79-1056
Before Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
Kim Lee Hubbard appeals from a denial of his petition for federal habeas corpus. He was convicted in the Lycoming County Court of Common Pleas, Criminal Division, of second degree murder. The Pennsylvania Supreme Court twice upheld the conviction, after direct appeals in which Hubbard contended that the admission of certain evidence transgressed his Fourth Amendment rights, that the evidence at trial was insufficient to support the conviction, and that his trial and post-trial counsel had been ineffective.*fn1 Hubbard once again advances these contentions in the current petition. Specifically, he claims that because the police neglected to read him the Miranda warnings before requesting the items, he did not voluntarily consent to the seizure of his boots and car. Thus, he argues, the admission of evidence obtained from this "seizure" violated the standards of voluntariness required by the Fourth Amendment.*fn2 Additionally, Hubbard asserts that his trial counsel was ineffective in failing to make a timely suppression motion and in not interposing objections to allegedly inflammatory closing remarks by the prosecutor. Finally, Hubbard challenges the assistance rendered by post-trial counsel on the ground that he did not raise in post-trial motions the issue of trial counsel's performance.
We conclude that the state court afforded Hubbard an adequate opportunity to present his Fourth Amendment claim, and that his other contentions are without merit. Accordingly, we affirm the district court's denial of the habeas petition.
The following facts were adduced in the state court. Jennifer Hill, a twelve-year-old friend of Hubbard's sister, spent the night of October 18, 1973 at the Hubbard home. She was last seen alive at approximately 4:30 on the afternoon of October 19, shortly after leaving the Hubbard residence, entering a metallic green car. Her body was found ten days later in a nearby cornfield. An autopsy identified the cause of death as manual strangulation, and placed the time of death between 4:30 and 8:00 p. m. on October 19. A search of the cornfield revealed a boot-heel mark under the victim's body, and two tire marks embedded in a mound of clay near the entrance to the field.
On October 31, two police officers and the district attorney went to the Hubbard residence to question members of the family. No family member was a suspect at the time. Mrs. Hubbard called the school where her son was a student and asked that he return home. When he arrived at the Hubbard home, the officers requested him to wait in another room until they finished speaking with his parents. According to petitioner's testimony, the police then questioned him for approximately thirty to forty-five minutes out of his parents' presence. Hubbard testified that he was not fearful during this questioning, and that he voluntarily cooperated with the police. He also stated at trial that the officers told him he was free to leave the room or to end the questioning at any time.
The officers then asked Hubbard if he owned a pair of boots and a car. Hubbard responded affirmatively and the police asked permission to inspect and to retain possession of these items. The state court found that "it was the uncontradicted testimony of the officers that they twice advised Hubbard that he had a right to refuse to consent to the requested inspection." 472 Pa. 259, 372 A.2d 687, 694 (1977). Hubbard nevertheless turned over his boots and drove one officer back to Borough Hall and surrendered his car to him.
Subsequent police investigation revealed that the heel mark under Jennifer Hill's body was made by one of the boots given to the police by Hubbard, and that the tire marks near the scene matched the tires on Hubbard's car. These two items of information became a principal element in the case against Hubbard.
At trial, one police officer asserted that Hubbard had been given the Miranda warnings prior to being questioned in his home. However, the other officer, Sgt. Peterson, denied that they read the Miranda rights, because Hubbard "was not a suspect" at the time. Upon hearing Sgt. Peterson's recollection, Hubbard's counsel moved to suppress the physical evidence turned over during the interview at the Hubbard home, arguing that the absence of Miranda warnings had rendered Hubbard's consent involuntary under the Fourth Amendment. In the alternative he moved for a suppression hearing. The trial court denied the motion, ruling that it was not timely under Pa.R.Crim.P. 323(b), which requires motions to suppress evidence to be made before trial.
In a post-trial opinion, the trial judge considered the merits of the Fourth Amendment claim. He made a factual finding that Hubbard had "voluntarily surrendered his boots and car for examination." The trial judge then ruled that "Miranda warnings are not a prerequisite to a voluntary surrender of evidence," citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Schneckloth holds that, in distinction to the waiver standards that govern custodial interrogations, a knowing and intelligent waiver of the right to refuse a request to search is not a prerequisite to finding a voluntary consent to a search or seizure. The case indicates, however, that knowledge of the right to refuse consent bears on the question of voluntariness.
The Pennsylvania Supreme Court affirmed the denial of the suppression motion. It reiterated that the pre-trial filing requirement of Pa.R.Crim.P. 323(b) permits only two exceptions. Untimely suppression motions are allowed 1) where the opportunity to make an application to suppress did not previously exist, or 2) where "the interests of justice require." 372 A.2d at 693.
The Pennsylvania Supreme Court rejected Hubbard's argument that the opportunity to make an application did not exist until his lawyer learned, at trial, that no Miranda warnings had been given at the home. Counsel was aware of all the facts pertaining to the interview, the court reasoned, and he therefore had the ...