Petition for Writ of Certiorari — Lewis v. Bruni

88-37% |

NO. 87-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

SAMUEL LEWIS, et al.,

Petitioners,

STEVEN ALLEN BRUNI,

Respondent,

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division Division

GEORGIA B. ELLEXSON

Assistant Chief Counsel

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)255-4686

(State Bar No. 003785)

Attorneys for PETITIONERS

sO

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20. ed Phe

sates MAREE SANE IAAI IDEN te

QUESTION PRESENTED

May the federal courts reach the merits

of a state prisoner's 28 U.S.C. § 2254

claim if the state court found a state

procedural default and also mentioned the

merits of the claim?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CASES AND AUTHORITIES

JUDGMENT SOUGHT TO BE REVIEWED

OPINION BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

CONCLUSION

CERTIFICATION

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

ite

TABLE OF CASES AND AUTHORITIES

Cases Page

Cook v. Lynaugh

821 F.2d 1072 (5th Cir. 1987) 9

Davis v. Allsbrooks

778 F.2d 168 (4th Cir. 1985) q

Edwards v. Arizona

451 U.S. 477

101 S.Ct. 1880

68 L.Ed.2d 378 (1981) 6.7 seen

Engle v. Issac

456 U.S. 107

102 S.Ct. 1584

71 L.Ed.2d 783 (1982) 8

Phillips v. Smith

717 F.2d 44 (2d Cir. 1983) 9

Smith v. Wainwright

777 F.2d 609 (llth Cir. 1985) 9

State v. Bruni

L29 . ASiS. aha

630 P.2d 1044 (Ct.App. 1981) 6

Thompson v. Lynaugh

821 F.2d 1080 (5th Cir. 1987) 10

United States ex rel. Caruso

v. Zelinsky

689 F.2d 435 (3d Cir. 1982) 10

' -11i-

United States ex rel. Merneigh

v. Greer

772 F.2d 322 (7th Cir. 1985)

Wainwright v. Sykes

433 U.S. 72

97 S.Ct. 2497

53 L.Ed.2d 594 (1977)

Authorities

Ariz.Rev.Stat.Ann.

§ 13-4232(A) (3)

28 U.S.C.

1254(1)

1291

2241

2253

2254

2254(b)

ADMD)

Arizona Rules of Criminal Procedure

Rule 32.2(a)(3)

United States Constitution

Fifth Amendment

Fourteenth Amendment

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10

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JUDGMENT SOUGHT TO BE REVIEWED

Petition for writ of certiorari to the

United States Court of Appeals for the

Ninth Circuit.

The Arizona Attorney General on behalf

of tne State of Arizona and Samuel Lewis,

Director, Department of Corrections,

prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Ninth Circuit

entered on March 24, 1988, and the

Petition for Rehearing denied on July 7,

1988. (Appendices A and B.)

OPINION BELOW

The Ninth Circuit's opinion held that

because the state appellate court denied

the prisoner's claim on alternate

grounds, reaching a decision on the

merits as well as invoking a procedural

ground, the state procedural bar was

vitiated and the federal courts could

rule on the merits.

STATEMENT OF JURISDICTION

Steven Allen Bruni appealed the order

of the United States District Court for

the District of Arizona denying his

application for writ of habeas corpus

under 28 U.S.C. §§ 2241 and 2254. The

Ninth Circuit had jurisdiction to hear

the appeal pursuant to 28 U.S.C. §§ 1291

and 2253.

The Ninth Circuit entered its opinion

on May 24, 1988, and denied rehearing on

July 7, 1988. This petition is timely

filed within 60 days of the order denying

the motion for rehearing. Petitioner

invokes this Court's jurisdiction under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

The pertinent part of the Fifth

Amendment to the United States

Constitution:

No person shall be .. . deprived

of life, liberty or property,

without due process of law

The pertinent portion of the Fourteenth

Amendment:

[N]or shall any state deprive any

person of life, liberty, or

property without due process of

law

The pertinent part of 28 U.S.C.

§ 2254(b):

An application for a writ of

habeas corpus in behalf of a

person in custody pursuant to the

judgment of a State court shall

not be granted unless it appears

that the applicant has exhausted

the remedies available in the

courts of the State, or that there

is either an absence of available

State corrective process or the

existence of circumstances

rendering such process ineffective

to protect the rights of the

prisoner.

STATEMENT OF FACTS

In 1980, a jury convicted Bruni of 14

counts of kidnapping, sexual assault and

aggravated assault. Prior to his trial

in state court, Bruni had filed a motion

to suppress the statements he made to

police officers. At the pretrial hearing

on the motion to suppress, two police

officers testified regarding the

circumstances under which Bruni made his

statements. Bruni did not present any

evidence at the suppression hearing, nor

did he argue that there was any basis for

Suppressing the statements. The trial

court denied his motion to suppress, and

his statements were introduced in

evidence at trial.

In his direct appeal to the Arizona

Court of Appeals, appellant did not raise

any issue in regard to the admission of

his statements in evidence.

The intermediate appellate court

affirmed the convictions and sentences in

State v. Bruni, 129 Ariz. 312, 630 P.2d

1044 (Ct.App. 1981). Two counts were

remanded for resentencing. The Arizona

Supreme Court subsequently denied review

on June 30, 1981. Id.

In 1981, this Court decided Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880,

L.Ed.2d 378 (1981). In May of 1982,

Bruni filed a petition for

post-conviction relief in the Arizona

trial court. Bruni tried to raise an

Edwards issue in this petition. The

state argued that he was precluded from

raising this issue since he had not

raised it in the direct appeal. The

trial court summarily denied relief

without addressing the merits. Bruni

petitioned for review and both parties

briefed his claims in the court of

appeals where the post-conviction

petition had been consolidated with the

appeal of the resentencings. The Arizona

Court of Appeals denied relief on the

Edwards issue on September 6, 1983, with

the following language:

Third, appellant's claim

regarding the voluntariness of his

statements was explored in

pretrial motions but not raised on

appeal and therefore is deemed

waived. Rule 32.2(a)(3), Arizona

Rules of Criminal Procedure, 17

A.R.S. In any case, appellant was

willing to talk and no

constitutional violation occurred.

(Appendix C, citation omitted.) The

Arizona Supreme Court subsequently denied

review without reference to procedural

bar or the merits of the claim.’

(Appendix D.)

l. Arizona‘s Rule 32.2(a)(3) provides

that, “A petitioner will not be given

relief under this rule based upon any

ground: .. . (3) Knowingly, voluntarily

and intelligently not raised at trial, on

appeal, or in any previous collateral

Bruni raised his Edwards issue in his

1987 federal petition for writ of habeas

corpus. The state argued that he should

have been required to show cause and

prejudice due to his state procedural

default. The federal courts ignored the

state procedural default because the

state appellate court had mentioned the

lack of merit in Bruni's Edwards claim.

(Appendix A.)

REASONS FOR GRANTING THE WRIT

Failure to appropriately raise a

federal constitutional issue in state

court may foreclose federal review under

28 U.S.C. § 2254. Engle v. Issac, 456

U.S. 107, 102 S.Ct. 1584, 71 L.Ed.2d 783

(1982); Wainwright v. Sykes, 433 U.S. 72,

97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

There is disagreement among the federal

proceeding. See also Ariz.Rev.Stat.Ann.

§ 13-4232(A)(3), using the same language.

circuit courts about whether they must

honor a finding of procedural bar made by

the state courts when the state courts

make an alternative finding on the merits

of the same issue. The majority rule is

that, when a state court bases its

decision upon the alternative grounds of

procedural default, and a rejection of

the merits a federal court must, in the

absence of good “cause” and “prejudice,”

deny habeas relief because of the

procedural default. Cook v. Lynaugh, 821

F.2d 1072 (Sth Cir. 1987); Davis v.

Allsbrooks, 778 F.2d 168, 175 (4th Cir.

1985); Shepard v. Foltz, 771 F.2d 962,

965 (6th Cir. 1985); Smith v. Wainwright,

777 F.2d 609 (llth Cir. 1985), reh denied

en banc, 785 F.2d 1032 (1986), cert.

denied, 477 U.S. 905 (1986); Phillips v.

Smith, 717 F.2d 44, 48 (2d Cir. 1983),

cert. denied, 465 U.S. 1027 (1984);

United States ex rel. Merneigh v. Greer,

772 F.2d 322 (7th Cir. 1985); United

States ex rel. Caruso v. Zelinsky, 689

F.2d 435, 440 (3d Cir. 1982). This rule

has been observed even where the

procedural default is the second ground

stated for relief by the state court

rather than the first ground stated.

Thompson v. Lynaugh, 821 F.2d 1080 (Sth

Cir.), cert. denied, U.S. , 108

S.Ct. 5, 97 &.BG@.2d 794 (1987).

Petitioner submits that the majority

view is the better one because it gives

effect to the principle of comity and

more closely follows this Court's

decisions. The Ninth Circuit's position

on the other hand penalizes the state

appellate court for instructing the

State's trial courts on federal

constitutional issues. It is very clear

that the Arizona Court of Appeals applied

«10-

Arizona's procedural default rule and

found that Bruni had waived any Edwards

issue by failing to raise it on direct

appeal. The federal courts should have

honored that finding and required the

habeas petitioner to show cause and

prejudice before they reached the merits

of the claim.

CONCLUSION

The application of the cause and

prejudice test for state procedural

default is not now uniformly applied

through the federal circuits. No matter

how crystal clear a state court's finding

of procedural default, the Ninth Circuit '

will review the merits of a state

prisoner's § 2254 claim if a state court

makes note of the merits of that claim.

This Court should accept this petition,

review the various circuit Opinions and

hold that the majority view on

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alternative state court findings should

be followed in all federal courts.

DATED thisQast4Gay of August, 1988.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

WILLIAM J. SCHAFER, III

Chief Counsel

Criminal a

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GE IA (hort O

Assistant Chief Counsel

’ My

Vie ct JiKaucery

DIANE M. RAMSEY

Assistant Attorney General

Attorneys for PETITIONERS

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Bo a a ine a ce ad i a. Whee FE eee ee

SN NORE eR a Te RRO A Le ee ene Ce Bree Staaten RM oe nch et Te nee ; r .

AFFIDAVIT

STATE OF ARIZONA )

) ss.

COUNTY OF MARICOPA )

GEORGIA B. ELLEXSON, a member of the

Bar of this Court, being duly sworn upon

oath, deposes and says:

That she served three copies of the

Petition for Writ of Certiorari upon

Robert Bartels, Arizona State University

Law School Clinic, Tempe, Arizona, 85281,

Attorney for Steven Allen Bruni, by

depositing the same in the United States

Mail, with first class postage prepaid,

return receipt requested.

Additionally, as a courtesy, she

herewith certifies that service of three

copies of this petition has been made

upon the United States of America by

depositing the same in the United States

Mail, with first class postage prepaid,

addressed to the Solicitor General,

= iBe

Department of Justice, Washington, D.C.

20530.

DATED thisagpdé day of August, 1988.

Y

GEGRGIA -ELLEXSON

Assistang/ Chief Counsel

Department of Law

1275 West Washington

Phoenix, Arizona 85007

Telephone: (602) 255-4686

SUBSCRIBED AND SWORN to before me

this (ABZ day of August, 1988.

iy) - ate!

J . DYER

NOTARY PUBLIC

My Commission Expires:

December 10, 1989

CRM87-0540

6775d jd (DMR)

APPENDICES

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN ALLEN BRUNI,

Petitioner-Appellant,

No. 87-2990

vs.

D.C. No. CV 87-0270-

ACM

SAMUEL LEWIS, Director

of Arizona Department

of Corrections;

ROBERT CORBIN, Attorney ORDER

General, AMENDING

State of Arizona, OPINION

Respondents-Appellees.

wee ee eee eo oo ee ee

Appeal from the United States

District Court for the

District of Arizona

Alfredo C. Marquez, District

Judge, Presiding

Argued and Submitted

April 12, 1988 -

San Francisco, California

Filed May 24, 1988

Amended July 12, 1988

Before: Herbert Y.C. Choy, Joseph T.

Sneed and Procter Hug, Jr.,

Circuit Judges.

Opinion by Judge Choy

a or Pe

SUMMARY

Criminal Procedure

Appeal from denial of petition for a

writ of habeas corpus. The court

affirmed holding that a defendant may

selectively waive his Miranda rights.

Detective Comstock arrested appellant

Bruni and read him his Miranda rights.

She asked him if he would answer her

questions. Bruni replied, “Not without

my attorney.” He then added immediately,

"Well, ask your questions, and I will

answer those I see fit." He was not

questioned further. At the Pima County

Attorney's Office, Detective Kohlman read

Bruni his rights. He asked Bruni if he

would answer questions. Bruni replied

that he would answer “those he felt good

to answer or that he thought his attorney

os

would probably advise him to answer.” He

was interrogated. At trial, Bruni

unsuccessfully objected to the

prosecution's introduction of statements

elicited from him during his

interrogation. Bruni was convicted. The

state appellant [sic] court affirmed.

The court denied his petition for

post-conviction relief. The Arizona

appellate court affirmed. The Arizona

Supreme Court dismissed his petition.

The U.S. District Court denied his habeas

petition.

[1] A defendant may selectively waive

his Miranda rights, deciding to respond

to some questions but not others. [2]

Bruni asserts that by invoking his right

to counsel and then immediately waiving

that right he made an equivocal request

for counsel. Bruni's second statement

effected a selective waiver by indicating

an agreement to answer some questions but

not others. Therefore, to the extent

that Bruni later chose to answer

questions, he waived his right to

counsel. [3] When Kohlman sought to

question Bruni and Bruni responded with

answering those questions he felt good to

answer, [4] this statement was not an

attempt to invoke a present right to

counsel.

COUNSEL

Robert Bartels, Douglas A. Blaze, Aimee

L. Burr, Student, Ann Harwood, Student,

Harry A. Wolin, Student, Arizona State

University Law School Clinic, Tempe,

Arizona, for the petitioner-appellant.

Diane M. Ramsey, and Barbara A. Jarrett,

Assistant Attorneys General for the State

of Arizona, Phoenix, Arizona, for the

respondents-appellees.

ORDER

The opinion filed May 24, 1988, is

amended as follows: At page 8516 of the

slip opinion delete in the first full

paragraph “that are adopted by the

district court are reviewed for clear

error” and in its place insert “are

presumed correct and will not be set

aside unless lacking fair support in the

record, McKenzie v. Risley, 842 F.2d

1525, 1531 (9th Cir. 1988) (en banc)"

OPINION

CHOY, Circuit Judge:

OVERVIEW

Steven Allen Bruni ("Bruni"), an

Arizona state prisoner who was convicted

of 14 counts of kidnapping, sexual

assault and aggravated assault, appeals

from the district court's denial of his

afeSe

petition for a writ of habeas corpus

under 28 U.S.C. § 2254. Bruni claims

that police interrogation violated his

fifth amendment right to counsel. We

disagree and affirm.

BACKGROUND

On October 22, 1979, a Tucson, Arizona

police officer stopped Bruni for having

unusually loud muffler pipes on his car.

The officer recognized the car as one

identified with a number of sexual

assault cases under investigation. The

officer notified his supervisor, who in

turn informed Detective Comstock.

Upon arriving at the scene, Detective

Comstock recognized Bruni as a suspect in

several recent sexual assault cases and

arrested him. She read Bruni his Miranda

rights and asked him if he understood

them. After he responded affirmatively,

she asked him if he would answer her

questions. Bruni replied, “Not without

my attorney.” He then added immediately,

“Well, ask your questions, and I will

answer those I see fit." Detective

Comstock then asked him “if that meant he

would be willing to answer the questions

that he wanted to answer himself." Bruni

said, "Yes."

Detective Comstock did not question

Bruni further but had him transported to

the Pima County Attorney's Office where

he met Detective Kohlman. At his

request, Bruni first spoke with his

parole officer. Afterwards, Detective

Kohlman read Bruni his Miranda rights and

asked him if he understood them. Having

secured Bruni's assent, Detective Kohlman

asked Bruni if he would answer

questions. Bruni replied that he would

answer “those he felt good to answer or

that he thought bis attorney would

probably advise him to answer."

Detective Kohlman then interrogated Bruni

at length. During this interrogation,

Bruni did not attempt to invoke his right

to silence or right to counsel.

At trial, Bruni unsuccessfully objected

to the prosecution's introduction of

statements elicited from him during his

interrogation by Detective Kohlman.

Bruni was convicted on August 29, 1980,

of 14 counts of kidnapping, sexual

assault and aggravated assault. He

appealed his conviction but did not raise

the issue of his interrogation by

Detective Kohlman at that time. On

May 4, 1981, the state appellate court

affirmed his conviction, though it

remanded for sentencing on two counts.

On May 3, 1982, Bruni filed a petition

for post-conviction relief in Arizona

Superior court. He now claimed that

aut.

Detective Kohlman's interrogation

violated his fifth amendment right to

counsel. The court denied his petition.

The Arizona appellate court affirmed the

denial. Bruni then petitioned for review

in the Arizona Supreme Court, which

dismissed his petition.

Bruni next sought federal habeas relief

in the United States District Court for

the District of Arizona. He timely

appeals from that court's denial of his

habeas petition.

DISCUSSION

I. State Procedural Bar

Initially, the State of Arizona

(“state”) asserts that the district court

incorrectly reached the merits of Bruni's

habeas petition. The state maintains

that Bruni is procedurally barred from

seeking federal habeas relief.

=

A state prisoner may not receive

federal habeas relief if his

constitutional claim has been barred in

state court on a procedural ground,

unless the prisoner can show cause for

his procedural default and resulting

prejudice. See Engle v. Isaac, 456 U.S.

107, 129 (1982); Wainwright v. Sykes, 433

U.S. 72, 86-87 (1977). However, if the

state court denied the prisoner's claim

on alternate grounds, reaching a decision

on the merits as well as invoking a

procedural ground, the state procedural

bar is vitiated. Bradford v. Stone, 594

F.2d 1294, 1296 n.2 (9th Cir. 1979); see

also Walker v. Endell, 828 F.2d 1378,

1382 (9th Cir. 1987); Huffman v.

Ricketts, 750 F.2d 798, 800-01 (9th Cir.

1984).

Here, Bruni failed to directly appeal

his fifth amendment claim. [In his state

-A-10-

post-conviction proceeding, the appellate

court ruled that this waived his claim

under Arizona law. The court nonetheless

addressed the merits of Bruni's claim and

found no constitutional violation.’

Since the state court did not rely

exclusively on a procedural ground in

denying Bruni's petition, we reach the

merits.

II. Right to Counsel

We review de novo a district court's

decision to deny a petition for writ of

‘The court stated that “appellant's

claim regarding the voluntariness of his

statements was explored in pretrial

motions but not raised on appeal and

therefore is deemed waived. .. . In any

case, appellant was willing to talk and

no constitutional violation occurred."

Bruni's subsequent petition to the

Arizona Supreme Court was denied without

explanation. We thus presume that the

state supreme court's denial was also on

the merits. See Turner v. Compoy, 827

F.2d 526, 529-30 (9th Cir. 1987),

petition for cert. filed, (Nov. 27, 1987).

-A-11l-

habeas corpus. Campbell v. Kincheloe,

829 F.2d 1453, 1457 (9th Cir. 1987).

Furthermore, while the historical factual

findings of a state court are presumed

correct and will not be set aside unless

lacking fair support in the record,

McKenzie v. Risley, 842 F.2d 1525, 1531

(9th Cir. 1988) (en banc), we may give

different legal weight to such facts.

Hayes v. Kincheloe, 784 F.2d 1434, 1436

(9th Cir. 1986), cert. denied, 108 S.Ct.

198 (1987); see Sumner v. Mata, 455 U.S.

591, 597 (1982) (per curiam).

In Miranda v. Arizona, 384 U.S. 436

(1966), the Supreme Court held that

before government officials conduct a

custodial interrogation of a defendant,

they must inform him of his fifth

amendment right to remain silent and to

receive assistance of counsel before and

during questioning. To proceed to

-A-12-

question the defendant, officials must

first satisfy the “heavy burden” of

establishing that the defendant

“knowingly and intelligently waived his

privilege against self-incrimination and

his right to . . . counsel.” Id. at

475. In determining whether the

government has met its burden, a court

must examine “‘the particular facts and

circumstances surrounding thle] case,

including the background, experience, and

conduct of the accused.'” Edwards v.

Arizona, 451 U.S. 477, 482 (1981)

(quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)).

Edwards applied these principles in

holding that government officials must

discontinue interrogation of a defendant

who invokes his right to counsel until

the defendant meets with counsel, unless

the defendant initiates further

-A-13-

communication with government officials.

451 U.S. at 484-85.’

[1] However, a defendant may

selectively waive his Miranda rights,

deciding “to respond to some questions

but not others.” United States v.

Thierman, 678 F.2d 1331, 1335 (9th Cir.

1982); see Michigan v. Mosley, 423 U.S.

96, 103-04 (1975). Nevertheless, if a

defendant makes an equivocal reguest for

counsel during interrogation, officials

*In Shea v. Louisiana, 470 U.S. 51,

59 (1985), the Supreme Court held that

Edwards applied to all cases on direct

review at the time Edwards was decided.

Here, Bruni’s direct appeal was pending

at the time of the Edwards decision.

Nevertheless, the state maintains that

Shea is inapplicable because Bruni did

not raise the issue of his alleged

illegal interrogation on direct appeal.

The state argues that to reap the benefit

of Edwards, a defendant who had been

appealing his conviction at the time of

the Edwards decision must also have been

appealing an Edwards issue. We need not

address this argument, however, as we

find that no Edwards violation occurred.

-A-14-

must stop further questioning, except to

clarify the defendant's desire for

counsel. United States v. Fouche, 833

F.2d 1284, 1287 (9th Cir. 1987), petition

for cert. filed, (Feb. 9, 1988).

In the present case, the district court

determined that Bruni unequivocally

waived his right to counsel upon his

arrest. In response to Officer

Comstock's request that he answer her

questions, Bruni replied, “Not without my

attorney.” He then added, “Well, ask

your questions and I will answer those I

see fit."

[2] Bruni asserts that by invoking his

right to counsel and then immediately

waiving that right he made an equivocal

request for counsel. However, there is

no reason to interpret as equivocal

either Bruni's unambiguous invocation of

his right to counsel or his subsequent

-A-15-

equally unambiguous waiver of that

right. See Connecticut v. Barrett, 107

S.Ct. 828, 832 (1987) (With respect to

requests for counsel under the fifth

amendment, “({iJnterpretation is only

required where the defendant's words,

understood as ordinary people would

understand them, are ambiguous."). As

commonly understood, Bruni'’s second

statement effected a selective waiver by

indicating an agreement to answer some

questions but not others. Therefore, to

the extent that Bruni later chose to

answer questions, he waived his right to

counsel.’

*Bruni's declarations differ markedly

from ambiguous responses in other cases

that were held to be equivocal requests

for counsel. See, e.g., United States v.

Fouche, 776 F.2d 1398, 1405 (9th Cir.

1985) (statement that defendant “might

want to talk to a lawyer"); United States

vw. Gueeew, ges free 1224, 1130 (5th Cir.

1984) (defendant stated “maybe I should

talk to an attorney before I make a

-A-16-

Since Bruni's statements effected a

waiver of his Miranda rights, the

district court correctly ruled that the

subsequent interrogation did not violate

Edwards. The issue remains, however,

whether Bruni's statement to Detective

Kohlman was an equivocal request for

counsel.

[3] Upon receiving his Miranda rights

for the second time, Bruni again

indicated that he understood his rights.

When Detective Kohlman thereafter-_sought

to question him, Bruni stated that he

would answer “those [questions] he felt

good to answer or that he thought his

further statement," and a few minutes

later added, “why should I not get an

attorney?"); Nash v. Estelle, 597 F.2d

513, 519 (5th Cir.)({en banc) (defendant

stated that "I would like .. . to have

[an attorney] appointed" and a minute

later asserted that “I would like to have

a lawyer, but I'd rather talk to you"),

cert. denied, 444 U.S. 981 (1979).

-A-17-

attorney would probably advise him to

answer."

[4] Bruni's statement was not an

attempt to invoke a present right to

counsel.* See United States v.

Jardina, 747 F.2d 945, 949 (5th Cir.

1984), cert. denied, 470 U.S. 1058

(1985). Furthermore, his mere mentioning

of his attorney does not suffice to

render this statement an equivocal

request for counsel. See id. (noting

that “[{t]he word ‘attorney’ has no

talismanic qualities"). Bruni had had

prior felony arrests and so probably felt

sufficiently familiar with arrest

procedures to respond to questions that

he wanted to answer or that he believed

“In contrast, shortly before making

this statement, Bruni had made a clear

request to have an immediate conference

with his parole officer, which was

granted.

-A-18-

his attorney would allow him to answer.

Thus, we do not construe this statement

as an equivocal request for counsel.

CONCLUSION

No state procedural rule bars review of

Bruni's habeas petition. We AFFIRM the

district court's denial of Bruni's

petition on the merits.

-A-19-

APPENDIX B

ORDER OF THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN ALLEN BRUNI,

Petitioner-Appellant,

vs. No. 87-2990

SAMUEL LEWIS, Director

of Arizona Department

of Corrections,

ROBERT CORBIN,

Attorney General,

State of Arizona,

DC No. CV 87-0270-ACM

ORDER

Respondents-Appellees.

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Before: CHOY, GOODWIN, and BEEZER,

Circuit Judges.

The panel as constituted in the above

case has voted to deny the petition for

rehearing. The petition for rehearing is

denied.

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APPENDIX C

COURT OF APPEALS

MEMORANDUM DECISION

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA, 2 CA-CR 2523-2

2 CA-CR 2993-3PR

Appellee/Respondent, (Consolidated)

MEMORANDUM DECISION

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STEVEN ALLEN BRUNI, Rule 48, Rules of

the Supreme Court

Appellant/Petitioner.

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-02082

Honorable James C. Carruth, Judge

AFFIRMED

Robert K. Corbin, Tme Attorney General

by William J. Schafer III

and Diane M. Ramsey Phoenix

Attorneys for Appellee/Respondent

Richard S. Fields Tucson

Attorney for Appellant/Petitioner

PER CURIAM.

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This consolidated appeal and petition for

review is the continuation of our case of

State v. Bruni, 129 Ariz. 312, 630 P.2d 1044

(App. 1981), in which we affirmed appellant's

convictions on 14 counts of kidnapping and

sexual assault, but remanded for

resentencing. Resentencing occurred on

October 19, 1981, and notice of appeal was

filed that day. The appeal was stayed for

appellant to file a petition for

post-conviction relief which was summarily

denied by the trial court on July 15, 1982.

After his motion for rehearing was denied,

appellant filed a petition for review on

January 12, 1983, and it was consolidated

with the appeal.

Appellant's first claim is that he was

entitled to an evidentiary hearing on the

trial in absentia issue. We do not agree.

Since the issue was not raised on appeal in

1981, it has been waived. State v. Gaffney,

121 Ariz. 271, 589 P.2d 914 (App. 1979);

Rule 32.2, Arizona Rules of Criminal

Procedure, 17 A.R.S. This also applies to

appellant’s attack on the merits of the trial

in absentia. Even assuming there was no

waiver, appellant was warned the trial would

proceed in his absence and he was present in

court when the trial was reset. A defendant

has a duty to keep abreast of his trial date

and his failure to do so will support the

finding that he is voluntarily absent. State

v. Sanchez, 116 Ariz. 118, 568 P.2d 425 (App.

1977).

Third, appellant's claim regarding the

voluntariness of his statements was explored

in pretrial motions but not raised on appeal

and therefore is deemed waived.

Rule 32.2(a)(3), Arizona Rules of Criminal

Procedure, 17 A.R.S. In any case, appellant

was willing to talk and no constitutional

violation occurred. State v. Hicks, 133

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Ariz. 64, 649 P.2d 267 (1982). Additionally,

appellant maintains the trial court

improperly admitted certain items at trial.

We found those items were properly admitted

in State v. Bruni, supra.

Finally, appellant maintains he was

improperiy resentenced because the court did

not repeat what was said at the first

sentencing as the reasons for an aggravated

sentence. At the first sentencing, the trial

judge stated:

“The court notes these are

aggravated sentences and in

imposing them the court considered

the physical suffering of the

victims, a weapon, the defendant's

previous record, his flight from

prosecution, the fact he failed to

appear for trial and that he

constitutes a danger to the

community.”

At the resentencing, the court

incorporated by reference the aggravating

factors on the record at the first

sentencing. There was no objection. The

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procedure meets the requirements of

A.R.S. § 13-703(C). See, State v.

Bishop, Ariz. ‘ P.2d ‘

(2 CA-CR 2436 and 2633-2PR, filed

3/24/83), where we held that the reasons

for imposing an aggravated, consecutive

sentence did not have to be stated twice

to meet the requirements of A.R.S.

§§ 13-702(C) and 13-708. It would serve

no purpose to remand to have the trial

court read the words into the sentencing

record.

Affirmed.

LAWRENCE HOWARD, Chief Judge

BEN C. BIRDSALL, Judge

JAMES D. HATHAWAY, Judge

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APPENDIX D

SUPREME COURT ORDER

SUPREME COURT

STATE OF ARIZONA

201 WEST WING

CAPITOL BUILDING

(602)255-4536

Phoenix 85007

December 21, 1983

STATE OF ARIZONA, Supreme Court

No. 6119-PR

Appellee/Respondent,

Court of Appeals

Nos. 2 CA-CR 2523-2

and 2 CA-CR 2993-3PR

(Consolidated)

vs.

STEVEN ALLEN BRUNI,

Pima County

Appellant/Petitioner.

No. CR-02082

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The following action was taken by the

Supreme Court of the State of Arizona

on December 20, 1983 in regard to

the above-entitled cause:

“ORDERED: Petition for Review = DENIED."

Record returned to the Court of Appeals,

Division Two, Tucson, this 2lst day of

December, 1983.

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S. ALAN COOK, Clerk

By /S/ Karen Rosenquist

Deputy Clerk

TO:

Richard S. Fields, Esq., Linden, Chapa &

Fields, Broadway Center, Suite 265, 4911

E. Broadway, Tucson, AZ 8571il

Hon. Robert K. Corbin, Attorney General,

1275 W. Washington, Phoenix, AZ 85007

Attn: William J. Schafer III, Esq., and

Diane M. Ramsey, Esq.

Elizabeth Urwin Fritz, Clerk, Court of

Appeals, Division Two, 416 W. Congress,

Tucson, AZ 85701

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