# Petition for Writ of Certiorari — Lewis v. Bruni

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 960

## Text

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

e —

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

-iv-

10

3,8,1

ae WWW Ww

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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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.

ee ee ee a a ae ee ee ee ee

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.

afi 2 «

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

)
)
)
)
Vv. )
) Not for Publication,
)
)
)
)

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.

af. i

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

aflicolea

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

a

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

statin

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

~~ ee ee ee ee ee

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.

oe

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

6775d

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0059%3A1. Public record. Not legal advice.