Petition — Garrison v. Strickland

Spas Gon, © 8

ILED.

SEP 11 1976

In The MICHAEL RODAK, JR. CLERK

Supreme Court of the United States

OCTOBER TERM 1976

vo. 26-370

SAM P. GARRISON,

Petitioner

v.

FLOYD STRICKLAND, JR.,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

t,

‘e

RUFUS L. EDMISTEN

Attorney General

RICHARD N, LEAGUE

Assistant Attorney General

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-7188

ATTORNEYS FOR PETITIONER

INDEX

Opinion Below | 1

Jurisdiction 1

Question Presented 2

Constitutional and Statutory Provisions Involved 2

Statement of the Case 2

Reasons for Granting the Writ:

(1) AN IMPORTANT OPEN QUESTION

CONCERNING THE APPLICATION

OF MIRANDA »v. ARIZONA, 384 US

43 (1966), IS PRESENTED BY THIS

SERED Sao reece race 3

Conclusion 5

APPENDICES

A. Excerpts from Application for

Writ of Habeas Corpus _....... RTE Soe A PORE OO ie

B. Order of the United States District

Court for the Eastern District of

ee Ss Te etic aaa cho ae 11

C. Order of the United States Court

of Appeals for the Fourth Circuit — 16

: D. Excerpts from Trial Voir Dire 21

LT

;

TABLES OF CASES

Michigan v. Mosley, 423 US 96 (1975) —. 3

ee

|

In The

' Supreme Court of the United States

OCTOBER TERM 1976

ee No.

——

4 P in | SAM P. GARRISON,

¥- : Petitioner

x :

7 “ v,

A

R FLOYD STRICKLAND, JR.,

Respondent

PETITION FOR WRIT OF CERTIORARI

' TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TO: THE HONORABLE CHIEF JUSTICE AND ASSO-

CIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

The petitioner, Sam P. Garrison, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Fourth Circuit in the case of Floyd

Strickland, Jr. vs. Sam P. Garrison, No. 76-1683, filed June 28,

1976.

OPINION BELOW

The opinion of the United States Court of Appeals styled

and filed as above is not yet reported but is printed as

Appendix C to this petition (pp. 16-20, post) .

JURISDICTION

The jurisdiction of this Court is invoked under 28 USC

1254/1) within ninety days of June 28, 1976, the date of

entry of the order to be reviewed.

2

QUESTION PRESENTED

WHETHER THE GOVERNMENT MAY USE A CON-

FESSION OBTAINED AFTER IT INITIATED AN

INTERVIEW WITH AN ACCUSED WHO HAD NOT

TALKED TO COUNSEL AFTER HE HAD EARLIER

STATED HE DESIRED TO DO SO.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Sixth Amendment and the Four-

teenth Amendment. :

STATEMENT OF THE CASE

Floyd Strickland was a prisoner of the State of North

Carolina convicted on or about June 22, 1973 in the Superior

Court for Columbus County, North Carolina in cases num-

ber 73 CR 1950, 1951 and 1946, in which he was charged with

breaking and entering, safecracking and safecracking respec-

tively. Prayer for judgment was continued in the first of the

cases but Strickland received a consolidated twenty-two to

thirty year sentence on the remaining offenses. Strickland’s

conviction was affirmed on appeal by the North Carolina

Court of Appeals, 22 NC App 196 (June 15, 1974), and the

North Carolina Supreme Court denied certiorari to review

that decision, 285 NC 662 (August 30, 1974).

In February, 1975, Strickland filled out a writ form which

was duly authorized for filing in forma pauperis, and which

was served on respondent below under cover letter of March

10, 1975, Strickland v. Garrison, 75-0072-HC. In this writ, he

seemingly alleged that his confession was involuntary because

investigating officers threatened to charge his relatives with

the crime if he did not confess, and because he had not signed

a written waiver of counsel. The relevant portions of his appli-

cation for a writ are Appendix A to this petition, pp. 6-10, post.

These contentions were ruled on unfavorably by the District

Court, Honorable John D. Larkins, Jr., Judge Presiding, and

3

‘his application for a writ of habeas corpus was dismissed on

or about July 3, 1975. Judge Larkins’ order is Appendix B

to this petition, pp. 11-15, post.

On appeal, however, a panel of the United States Court

of Appeals for the Fourth Circuit reversed the District Court

in a per curiam decision, entered without briefing or argument,

Strickland v. Garrison, No. 76-1683. The panel took a broader

view of Strickland’s allegations than had the District Court

and respondents below and found that “specifically Strickland

contends that his confession was inadmissible because it was

obtained by interrogation in the absence of counsel after

Strickland had requested counsel be present.” With this asser-

tion, the panel agreed and ordered that a writ of habeas

corpus be issued in Strickland’s behalf. The relevant portions

of the trial voir dire concerning this point are set out as

Appendix D to this petition, pp. 21-25, post. According to the

state’s evidence (which was believed by the trial judge on

voir dire), they show that petitioner was questioned at about

9:00 a.m., at which time he was given the warnings required

by the Miranda decision. Following these, he declined to give

a statement, saying that he wanted to see a lawyer. Question-

ing then ceased. About 3:00 p.m., another meeting was held

between Strickland, who was in custody, and law enforcement

officers. He was again warned of his rights pursuant to the

Miranda decision at which time he did not ask for an attorney

but instead gave a statement. According to Strickland’s evi-

dence, he gave the statement at the morning meeting, after

his request for counsel was repeatedly refused, and no 3:00

p.m. meeting ever occurred.

REASONS FOR GRANTING THE WRIT

AN IMPORTANT OPEN QUESTION CONCERNING

THE APPLICATION OF MIRANDA V. ARIZONA, 384

US 436 (1966) IS PRESENTED BY THIS CASE.

This case presents an open question akin to that decided in

Michigan v. Mosley, 423 US 96 (1975)—(a) whether an

4

accused who has stopped interrogation by asking for a lawyer

may change his mind and give an admissible statement with-

out a lawyer having been consulted or being present; and (b)

if so, can this occur if the authorities initiate the subsequent

contact at which the statement occurs. The answer to both

should be “Yes”; however, the Fourth Circuit has answered

the second “No”. Therefore, this important matter has been

wrongly decided, especially in light of Michigan v. Mosley,

supra, and a writ of certiorari should issue to correctly pro-

pound the law in this regard.

The admissibility of confessions is governed by the standards

of voluntariness and waiver. Nothing in the facts of this

case suggests that either was unmet. Petitioner received the

“Miranda warnings,” and nothing shows that he did not under-

stand them. Presumptively then, any waiver of the rights in-

volved in them could be intelligently made. Interrogation

ceased when he said he wanted a lawyer. Six hours passed be-

fore contact was resumed. That subsequent contact began

with new Miranda warnings. Nothing in the way of illegal

threats or promises or actual brutality or mental coercion

existed. All of these demonstrate the confession was voluntary.

Under these circumstances, it should not have been excluded.

Despite the above, the Fourth Circuit did not condition

admissibility on the presence or absence of the above, but in-

stead “zeroed in” on the fact that the authorities evidently

initiated the subsequent contact with the accused and held this

to be a per se factor requiring exclusion of any statements by

Strickland.’ This is non-sensical. Since jailing and law enforce-

ment duties are often handled by different officers, or sub-

sections of larger offices; since employees work shifts and take

breaks; and since office hours for investigating officers are

"While the panel spoke darkly of “entreaties .. . yroceed

without counsel” and “precluding the petitioner ‘ 9m com-

municating with counsel” to bolster its decision, neither ap-

pears of record insofar as respondent can tell.

5

‘irregular, it is to be expected that diligent law enforcement

officers might deal directly with an accused to determine if—he

had yet seen counsel or if he still desired to do so. How they

deal with an accused, however, and not whether they initiate

the dealings is the relevant matter with regard to whether any

statement taken is voluntary and any waiver of the rights in-

volved are intelligently made. For this reason, the Fourth

Circuit panel erred in its decision.

CONCLUSION

It is respectfully submitted that because of the above, this

case is of sufficient importance for the Court to exercise its

jurisdiction and issue a writ of certiorari to review the decision

of the United States Court of Appeals, either to summarily

reverse it, or to set the matter for briefing and argument.

Respectfully submitted,

RUFUS L. EDMISTEN

Attorney General

Richard N. League

Assistant Attorney General

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-7188

ATTORNEYS FOR PETITIONER

Appendix A

RELEVANT PORTIONS OF THE APPLICATION

FOR WRIT OF HABEAS CORPUS

Petitioner was denied due process of law when an oral con-

fession was elicited from him under threat during police in-

terrogation. Petitioner’s mother, brother and cousin would be

indicted for the same crime, after petitioner invoked his Fifth

Amendment right to remain silent, and after he requested the

assistance of counsel at interrogation; and the coerced oral con-

fession was admitted into evidence by the prosecution to the

trial jury.

* 7 * * -_ * * * * * * *

On the morning of March 14, 1973 between 8:00 and 8:30

A.M. the petitioner was questioned by S.B.I. Agent Wesley

Terry and was asked by Terry if he, the petitioner, wished to

make a statement. Petitioner declined at which point Agent

Terry seemed to get angry.

Agent Terry then threatened to have petitioner’s brother

and cousin with the possibility, also, of his mother, Mrs. Grace

Strickland indicted. Petitioner then became upset and con-

fessed to the alleged crimes.

It should be noted that at this time petitioner had not, nor

has since, signed a waiver of his rights to counsel.

Later that afternoon, after petitioner was transferred from

Fair Bluff, North Carolina, petitioner was then again ques-

tioned by S.B.I. Agent Terry but petitioner then recanted his

earlier confession and informed Agent Terry that he was in

fact innocent of the charges against him and was going to

plead not guilty all the way. At no time after requesting

counsel had petitioner signed a waiver of his rights or even

“orally” relinquish [sic] his rights as established by Miranda.

The voluntary and coerced confession was used in court against

him.

7

MEMORANDUM OF POINTS AND AUTHORITIES

The historical background on standards for admitting con-

fessions began with Brown “vs” Mississippi, 297 U.S. 278, 56

S.Ct. 461, 80 L.Ed. 682 (1936). The case involved physical

beating of a confession from a defendant and the court held

such a confession illegal. In Ashcraft “vs” Tennessee, 322 US.

143, 64 S.Ct. 921, L.Ed. 1192 (1944) convection [sic] was re-

versed where a confession had been obtained after some 36

hours of continious [sic] interrogation. A court ruled that the

extended questoning [sic] raised a conclusive presumption of

coerceion [sic]. In the famous stomach pumping *ase of Rochen

“vs” California, 342 US. 165, 72 S.Ct. 205, 98 L.Ed. 183

(1952) the court speaking through Justice Frankfurter viewed

the coerced confession cases pointing out: Use of involuntary

verbal confessions in state criminal trials is obnoxious not only

because of their unrealibity [sic], they are inadmissible under

the due process clause even though statements contained in

them may be independently established as true. Coerced con-

fessions offend the community’s sense of fair play and decency.

That the court was applying two constitutional standards for

the admissibility of confessions—a “police methods” test as

well as a trustwortheness [sic] test was made clear by Spano

“vs” New York, 360 US. 315 (1959). In Rogers “vs” Rich-

mond after a team of at least three police officers had in-

terogated [sic] him for siz hrs. without success, a threat to

bring his invalidated [sic] wife down to headquarters for ques-

toning [sic] prompted him to confess to the murder for which

he was convicted. The court ruled (7-2) per Frankfurter, J.

that the state’s failure to apply the standard demanded by

the Fourteenth Amendment due process entitled him to federal

habeas corpus relief.

In this case police officers threatened to indict the petition-

er’s mother, brother and cousin unless petitioner confessed.

As Justice Frankfurter pointed out for the majority in the

famous case of McNabb “vs” United States, 318 U.S. 332, 63

8

S.Ct. 608, 87 L.Ed. 819 (1943) while the powers of the court

to upset state convictions is [sic] limited to the enforcement

of the Fourteenth Amendment due process, the standards of

federal criminal justice “are not satisfied merely by the ob-

servence [sic] of those minimal historic safeguards.”

The court farther [sic] reterated [sic] thier [sic] principles in

Mallory “vs” United States, 354 U.S. 449 (1957).

The right to have counsel present during police interrogation

began to attach in cases such as Crocker “vs” California, 357

U.S. 433 (1958) in Cicenia “vs” Lagay, 357 U.S. 504 (1958) .

Finally, in Malloy “vs” Hogan, supra, the court applied federal

standards to the admissibility of a confession in state criminal

prosecutions.

In Escobedo “vs” Illinois, 378 U.S. 478 (1964), the court

held that the “assistance of counsel” during the course of an

interrogation was made obligatory upon the states by the Four-

teenth Amendment. The court reached the ultimate decesion

[sic] in Miranda “vs” Arizonia, [sic] 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed. 2d 694 (1966). The holding of the court was that

the prosecution may not use statements, whether exculpatory

or inculpatory, steeming [sic] from custodial interrogation of

the defendant unless it demonstrates the use of procedueal [sic]

safeguards effective to secure the prevelege [sic] of self-incrimi-

nation. The court had allready [sic] established that the right

to counsel attached when focus was placed upon the accused.

In Miranda the court held that the accused must be warned

that he has the right to remain silent, and that any statement

he makes may be used as evidence aganist [sic] him and that

he has the right to assistance of counsel and if he could not

afford counsel, one would be appointed for him. The defendant

may waive effecuation [sic] of these rights provided the waiver

is made voluntary [sic] knowingly and intellegently [sic]. The

court stressed that once the defendant has made known his de-

sire for an attorney all questeoning [sic] must cease. A defend-

ant arrested and surronded [sic] by custodial officials has been

9

‘psychologically weakened to the point he may confess. Finally,

the court held that whatever the testimony of the authorities

has to waiver of rights by an accused, the fact of lengthey [sic]

interrogation or inceaeaiation [sic] before a statement is made

is strong evidence that the accused did not validly waiver [sic]

his rights. In these circumstances the fact that the individual

eventually made a statement is consistante [sic] with the con-

clusion that the compelling influence of the interrogation finally

forced him to do so. It is inconsistante [sic] with any notion of

a voluntarily relinquishment of the privelege [sic]. Moreover,

any evidence that the accused was threatened, tricked, as

cajoled into a waiver will, of course show that the defendant

did not voluntary [sic] waive his prevelege [sic]. The require-

ment of warnings and waiver of rights is a fundamental with

respect to the Fifth Amendment privelege [sic] and not simply

a preleminary [sic] ritual to existing methods of interrogation.

As set out in the instant case, petitioner was just questeoned

[sic] about the crimes between 8:00 and 8:30 A.M. on March

14, 1973. At that time, petitioner requested counsel. S.B.1.

Agent Westly [sic] Terry then seemed angry. He (Terry)

then threatened to have petitioner’s mother, brother and cousin

indicted for the same crimes unless petitioner confessed. Under

this threat and without the assistance of counsel, or waiver of

assistance of counsel, petitioner confessed. Subsequent to the

confession, petitioner’s brother and cousin was [sic] released

from police custody. Later the same day, March 14, 1973 after

being removed from Fair Bluff to the County Jail in White-

ville, North Carolina, S.B.I. Agent Terry again questeoned

[sic] petitioner. Petitioner made no statement, at this interroga-

tion, but stated that he intended to plead not guilty. The oral

confession give [sic] $.B.I. Terry [sic] at 8:00 or 8:30 A.M. on

March 14, 1973 without petitioner giveing [sic] a waiver of

his “Miranda” rights was later admitted into evidence at his

trial and conviction upon the charge. As clearly seen, the

admissibility of the oral confession was in violation of peti-

tioner’s Fifth and Fourteenth Amendment rights to the United

States Constitution and Miranda, supra. The record in this

10

instant case is silent as to petitioner’s signing a waiver of his

Fifth and Fourteenth Amendment rights as set fourtth [sic]

in Miranda, supra.

11

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

NO. 75-0072-HC

FLOYD STRICKLAND, JR., _)

Petitioner, _) MEMORANDUM

) OPINION

V. ) and

) ORDER

SAM P. GARRISON, )

Respondent. _)

LARKINS, District Judge:

This is a petition for a writ of habeas corpus pursuant to

28 U.S.C. $2254, in which the petitioner, Floyd Strickland, Jr.,

presently incarcerated at North Carolina Central Prison,

Raleigh, North Carolina, claims that he is being detained in

violation of his rights under the Constitution of the United

States.

At the June 22, 1973 Session of the Superior Court for

Columbus County, the petitioner, while represented by court-

appointed counsel, entered a plea of not guilty to indictments

charging him with two counts of safe robbery and one count

of breaking and entering. Upon these pleas the petitioner was

tried and convicted in a jury trial and sentenced to a con-

solidated term of imprisonment of twenty-two to thirty years

on the two safe robbery charges and prayer for judgment was

continued on the breaking and entering charge. The petitioner

appealed this conviction to the North Carolina Court of Ap-

peals, which court, in an opinion filed June 19, 1974 and re-

ported at 22 N.C. App. 196, 205 S.E.2d 765, found no @rror.

An examination of the State Court records reveals that Strick-

land has exhausted his State remedies as required by Title 28,

United States Code, Section 2254 (b) .

12

In support of his plea that the State Court conviction and

sentence be vacated and set aside, the petitioner presents two

contentions: first, that his confession was involuntary and

made only because law enforcement officers threatened with

prosecution his mother, brother and cousin if he did not con-

fess; and, second, that he did not execute a written waiver of

his rights to silence or counsel. The entire uncontested State

Court record is before this Court, including the Record on

Appeal submitted to the North Carolina Court of Appeals.

Strickland’s first contention is that his confession was in-

voluntary and made only because law enforcement officers

threatened with prosecution his mother, his brother and his

cousin if he did not confess. At the State trial there was a

lengthy voir dire on the question of whether or not any ad-

mission, confession or statement was made by the petitioner

and, if so, whether or not it was made freely, voluntarily and

legally. As a result of this voir dire, extensive findings of fact

were made by the State Trial Judge which may be accepted

in lieu of a hearing on the petitioner’s application. See Town-

send v. Sain, 372 U.S. 293, 88 S.Ct. 745, 9 L.Ed.2d 770 (1968) .

After extensive and exhaustive review of the evidence pre-

sented on voir dire, this Court adopts the State Trial Judge’s

finding that any confession made by the petitioner was execut-

ed freely and voluntarily after a valid oral waiver of his rights

to remain silent and to consultation with counsel pursuant to

Miranda vy. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966). This Court finds that Strickland received a full

and fair hearing on his claim in the State Court and further

finds that the State voir dire hearing contained in the Record

on Appeal amply supports the conclusion that Strickland’s

statements were voluntarily made.

The Supreme Court of the United States in its decision in

Schneckloth v. Bustamonte, 412 US. 218, 226, 93 S.Ct. 2041,

36 L.Ed.2d 854, 862 (1973) reviewed the case law regarding

the “voluntariness” of a defendant’s confession for purposes

13

of the Fourteenth Amendment and pointed out that “[ijn de-

termining whether a defendant’s will was overborne in a par-

ticular case, the Court has assessed the totality of all the sur-

rounding circumstances—both the characteristics of the accus-

ed and the details of the interrogation. . . . The significant

fact about all of these decisions is that none of them turned

on the presence or absence of a single controlling criterion;

each reflected a careful scrutiny of all the surrounding circum-

stances.

Under the circumstances surrounding the crimes of which

the petitioner has been found guilty, the close relatives of the

petitioner were subject to criminal indictment. The petitioner

would naturally take such consequences into consideration

when making the decision to make a statement or confession.

The law enforcement officers were not making false statements

to the petitioner in order to extract a confession; on the con-

trary, the true statements of possible legal consequences were

a positive aid to the petitioner in his own determination of

his situation. It was one circumstance to consider in arriving

at his decision on whether or not to make a statement or con-

fession. Adhering to the rule enunciated in Schneckloth v.

Bustamonte, supra, this Court cannot take this one fact or

circumstance and vacate the sentence and conviction of the

petitioner. It is the opinion of this Court that the statement

or statements made by the petitioner were voluntarily and

freely executed, that his constitutional rights proclaimed in

Miranda v. Arizona, 384 US. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966) were twice read to him and that he made a valid

waiver of those rights. The State Trial Judge’s findings and

this Court’s findings clearly satisfy the rule set forth by the

Fourth Circuit Court of Appeals in United States v. Johnson,

495 F.2d 378 (4th Cir., 1974). The fact of voluntariness of a

confession need only be demonstrated by a preponderance of

the evidence.

The petitioner also contends that his conviction and sentence

should be set aside in view of the fact that he signed no written

14

waiver of his rights to remain silent and to counsel. The facts

are ably set forth in the Trial Judge’s Findings of Fact in the

Record on Appeal to the North Carolina Court of Appeals and

in the summary of the Transcript in the Record on Appeal.

Again, applying the rules in Schneckloth v. Bustamonte, 412

US. 218, 93 S.Ct. 2041, 36 L.Ed.2@d 854 (1978) and United

States v. Johnson, supra, and considering that Strickland had

sufficient experience in the criminal courts of various states to

indicate his understanding of the explanation of his rights and

considering his apparent intelligence as indicated by his many

written letters to this Court, it is the opinion of this Court

that his failure to sign a written waiver did not render the con-

fession inadmissible. See United States v. Thompson, 417 F.2d

196 (4th Cir., 1970); United States v. Hayes, 385 F.2d 375

(4th Cir., 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250,

20 L.Ed.2d 106 (1968).

NOW THEREFORE, in accordance with the foregoing,

it is

ORDERED, that the petition for a writ of Habeas Corpus

pursuant to 28 U.S.C. $2254 be, and the same is DENIED,

FURTHER ORDERED, that this case be, and the same

is hereby DISMISSED, and

FURTHER ORDERED, that the Clerk shall serve copies

of this ORDER upon Mr. Floyd Strickland, Jr., 835 West

Morgan Street, Raleigh, North Carolina 27603 and Mr.

Richard N. League, Assistant Attorney General of North

Carolina, P. O. Box 629, Raleigh, North Carolina 27602.

Let this ORDER be entered forthwith.

JOHN D. LARKINS, JR.

United States District Judge

AT TRENTON, NORTH CAROLINA

JULY Ist, 1975

15

‘Filed July 3, 1975

JOHN R. WHITTY, CLERK

US. District Court

E. Dist. No. Car.

16

Appendix C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-1683

Floyd Strickland, Jr.,

Appellant,

Vv.

Sam P. Garrison,

Appellee.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. John D. Larkins, Jr.,

District Judge.

Submitted: April 20, 1976 Decided: June 28, 1976

Before WINTER CRAVEN, and BUTZNER, Circuit Judges.

(Floyd Strickland, Appellant Pro Se. Richard N. League,

Assistant Attorney General, for the Appellee.)

PER CURIAM:

Floyd Strickland, Jr., appeals from an order of the district

court denying a writ of habeas corpus. Before seeking federal

habeas corpus relief, Strickland exhausted his available state

remedies. He claims that his state court conviction for safe

robbery and breaking and entering is invalid because his con-

fession, admitted into evidence at his trial, was obtained in

violation of the requirements of Miranda v. Arizona, 384 US.

436 (1966). Specifically, Strickland contends that his con-

17

‘fession was inadmissible because it was obtained by interroga-

tion in the absence of counsel after Strickland had requested

that counsel be present.. We agree and reverse.

We accept, as did the district court, the findings of fact of

the state trial court. Strickland was arrested on the morning

of March 14, 1973. At 9:00 A.M., in the Fair Bluff, North

Carolina, police station, agent Terry of the state bureau of

investigation informed Strickland of his Miranda rights and

asked him if he wanted to make a statement. “Strickland re-

flecied for a few minutes, said he knew nothing about the

break-in, and said he wanted a lawyer; [and] the interrogation

was stopped.” At noon, Strickland was taken to the county

law enforcement center at Whiteville. At about 3:00 P.M.,

agent Terry again spoke with Strickland, warned him of his

rights, and asked him if he desired to make a statement.

Strickland stated thai he understood his rights, and confessed.

No lawyer was present.

In Miranda, the Supreme Court unequivocally stated: “Tf

the individual states that he wants an attorney, the interroga-

tion must cease until an attorney is present.” 384 US. at 474

(emphasis added) . While a suspect’s invocation of his right to

remain silent, unaccompanied by a request for counsel, does

not forever foreclose further efforts at interrogation, Michigan

v. Mosley, 423 U.S. 96 (1975), “clearly the Court in Miranda

. . . distinguished between the procedural safeguards triggered

by a request to remain silent and a request for an attor-

ney ...,” id. at 104 n.10; only in the latter situation did the

Court “create a per se rule against further interrogation, id. at

109 (concurring opinion of White, J.). Thus, Mosley has no

application to the present case. See id. at 101.7 (opinion of

the Court).

Once a suspect in custody has expressed his wish to be

represented by counsel, the police must deal with him as if

he is thus represented. Thereafter, it is improper for the police

to initiate any communication with the suspect other than

18

through his legal representative, even for the limited purpose

of seeking to persuade him to reconsider his decision to insist

on the presence of counsel. “[T]he accused having expressed

his own view that he is not competent to deal with the

authorities without legal advice, a later decision at the author-

ities’ insistence to make a statement without counsel’s presence

may properly be viewed with skepticism.” Jd. at 110 n.2 (con-

curring opinion of White, J.).

Of course, a suspect who has invoked his right to have

counsel] present during a custodial interrogation may change

his mind, by his own volition, see United States v. Tafoya,

459 F.2d 424, 427 (10 Cir. 1972), or after consulting with

counsel, see United States v. Brown, 459 F.2d 319, 323 (5 Cir.

1971) , cert. denied, 409 U.S. 864 (1972) , and decide to submit

to questioning without the aid of counsel. But Miranda and

our own prior cases, e.g., United States v. Clark, 499 F.2d 802,

807-08 (4 Cir. 1974), United States v. Slaughter, 366 F.2d

833, 840-41 (4 Cir. 1966) , established that a confession obtain-

ed from a suspect who has yielded to the entreaties of the

police that he proceed without counsel is inadmissible. “At the

very least, the agents should have afforded [the suspect]

sufficient time to employ and consult with counsel before they

initiate|d| any subsequent interview.” Clark, supra, 499 F.2d

at 807 (emphasis in original) .

Here, as in Clark, “agent [Terry] stated unequivocally that

he initiated the interview during which [Strickland] allegedly

waived his right to speak with an attorney and confessed;” and

“[t]here is nothing in the record to suggest that agent [Terry’s]

decision to conduct a second interrogation of [Strickland] was

prompted by any manifestation on the part of [Strickland]

that he had changed his mind and desired to be interrogated

without assistance of counsel ... .” Clark, supra, 499 F.2d at

807. We therefore conclude that “interrogation [did not] cease

until an attorney [was] present,” 384 U.S. at 474 (emphasis

added, as required by Miranda.

The state trial court concluded that Strickland “requested

19

‘an attorney for the purpose only of stopping the interrogation,

the defendant knowing that a lawyer was not available in Fair

Bluff.” We believe that a suspect’s subjective intent in re-

questing a lawyer is irrelevant to the state’s obligation to

provide one. Furthermore, the Miranda Court, in rejecting an

interpretation of its holding which would have required each

police station to have a lawyer present at all times, expressly

contemplated that as a result of its decision the police might

have to delay interrogation of a suspect until a lawyer could

be found. 384 US. at 474.

Of course, if a suspect expresses a desire to consult with

retained counsel and then unreasonably delays in so doing,

the police might in some circumstances be justified in requiring

him to accept substitute counsel, or even in continuing the

interrogation without counsel. But the police cannot credibly

claim delay by the suspect where the suspect has requested

that counsel be appointed, or where the police themselves have

precluded the suspect from communicating with retained

counsel. The record is silent as to whether Strickland wanted

to see appointed or retained counsel; and the facts are in

dispute as to whether the police interfered with Strickland’s

efforts to obtain a lawyer. The state trial court concluded,

though without apparent basis in the record except, possibly,

through judicial notice, that no lawyer was available in Fair

Bluff. Certainly if this conclusion is correct, Strickland cannot

be faulted for failing to obtain counsel during the three hours

he was held there. In any event, assuming the full six-hour

delay between the first and second interrogation to be attribut-

able to Strickland, we do not find six hours to be an unreason-

able period indicative of dilatoriness. See Slaughter, supra, at

840 (“[I]t cannot be said that his failure to have a lawyer

within approximately 25 hours of his request was unreasonable

delay on his part, or an attempt to postpone indefinitely a

decision on his part whether to submit to interrogation”) .

We hold that Strickland’s confession was obtained in viola-

tion of the fifth amendment and the requirements of Miranda

20

v. Arizona, supra. Accordingly, a certificate of probable cause

is granted, the decision of the district court is reversed, and

the case is remanded with instructions that the writ be granted.

REVERSED AND REMANDED.

21

Appendix D

Excerpts from the direct examination of Agent W. P. Terry.

My name is W. P. Terry. I am employed by the North

Carolina State Bureau of Investigation as a Special Agent. I

did investigate this alleged break-in that occurred on the 14th

day of March, 1973. I had occasion to talk with Mr. Strickland,

approximately on the 14th of March two separate and distinct

occasions, the first time being approximately eight to nine a.m.

on the 14th of March of this year. The second time was at the

Whiteville S.B.I. Office located in the Columbus County Law

Enforcement Center at approximately three p.m. on the 14th

of March, 19783. ,

I did have occasion to speak to Mr. Strickland on the

morning of the 14th of March at approximately between eight

and nine a.m. I interviewed him twice.

~

—

I was first talking with the defendant Strickland alone at

the point of the second interview. My initial contact with Mr.

Strickland, I do not recall who was present. I know there were

some people there, but I do not recall. It was approximately

in the area of nine a.m. on the morning of the 14th of March.

It occurred at the Fair Bluff Police Department. I believe there

were other people standing in the area beside Mr. Strickland

and myself but I do not recall who. I warned him of his rights

at that time. I advised Mr. Strickland the Constitution of the

United States and the State of North Carolina guarantee cer-

tain rights, which were as follows: “You do not have to say

anything which might incriminate you. Anything you do say

may be used for or against you in a court of law. You have

the right to speak with an attorney or anyone of your choice

before making any statements. If you desire an attorney and

cannot afford one, the State will appoint an attorney for you.

22

Do you understand fully these rights as I have explained them

to you?”

Mr. Strickland stated he did understand his rights. I asked

Mr. Strickland for a statement, which he declined. I had an-

other meeting with him at approximately three p.m. on the

14th of March of this year at the Whiteville S.B.I. Office.

Chief Holmes of the Fair Bluff Police Department, and myself,

and Mr. Strickland, initially were present. I asked him at that

time if he desired to give a statement. He was advised of his

constitutional rights. I advised him: “The Constitution of the

United States and the State of North Carolina guarantee you

certain rights, which are as follows: “You do not have to say

anything which might incriminate you. Anything you do say

may be used for or against you in a court of law. You have

the right to speak with an attorney or anyone of your choice

before making any statements. If you desire an attorney and

cannot afford one, the State will appoint an attorney for you.

Do you understand fully these rights as [ have explained them

to you,” He stated he did understand, and said he would make

a statement only in the presence of Mr. Alexander as he did

not want to keep anything from him.

Excerpts from the cross-examination of Agent W. P. Terry.

The first time I read the rights to Mr. Strickland, he de-

clined to comment before speaking with an attorney. The rights

were not read at Fair Bluff.

As to whether, he was then transported to the Law Enforce-

ment Center here in Whiteville and the rights were read to

him, I did not read the rights. The rights were quoted to him

as I have quoted them here today. I don’t read them from a

card. I don't have a card. I have them memorized. As to

whether I had a card before me the second time I began to

give him his rights and I dropped the card on the floor, my

answer is, “No, sir. Not to my recollection I did not.” As many

times as I have administered the Miranda warning I do not

Pe mn

23

~use a card, I have committed it to memory. I did not use

a card and I quoted them to him.

Mr. Strickland stated that he would like to talk to an

attorney. In response to that I stopped questioning him. And

I didn’t question him any more until three p.m. on the 14th.

He was brought to me at the S.B.I. Office.

At the first time he did request an attorney. The second time

he did not request an attorney. He did not request that I get

him an attorney or that he be allowed to call and get an

attorney. I don’t believe that silence is an indication of want-

ing an attorney. He did not reqyest that he wanted to make a

phone call. I did not deny him a telephone call. I personally

advised both Mr. Strickland and Mr. Alexander they might

use the phone in my office.

To my knowledge he did not use it at three o'clock in the

afternoon. I don’t recall if Mr. Strickland requested to use the

phone. The Sheriff accompanied me in the initial investigation.

I do not recall that the Sheriff made a statement to me or

that Mr. Holmes made the statement to me that they had

stated to Mrs. Grace Strickland that unless her son confessed

that she would be charged with the crime of accessory or aid-

ing and abetting. I don’t recall anyone making that statement

to me. If Sheriff Ben Duke made it to me, I don’t recall it. I

could not accurately testify. At three o’clock Mr. Strickland

did not at any time say anything about wanting an attorney.

Excerpts from the direct examination of Floyd Strickland, Jr.

I am Floyd Strickland, Jr., and I am one of the defendants

in this action. I had an occasion on March the 14th, 1973, to

talk with Ben Duke, Bobby Holmes, or Mr. Terry. I talked

with them somewhere in the neighborhood of between eight or

eight-thirty. The first time I talked to Mr. Terry, I did make

a statement. At that time he did not read my rights to me.

He did not say them to me. I made the statement to him that

24

I had broken into the store that he said was in question; I did

open the safe that was in question; I did commit the crime.

I did not sign a waiver of my rights. This took place in Fair

Bluff between eight and eight-thirty. He made a statement to

me before I made the confession that I broke and entered and

opened the safe. He made the statement that my brother,

Franklin Strickland, and my cousin, Tony, was going to be

indicted and possibly my mother; and the only way they

could be turned loose was that I confessed. I asked Mr. Terry

what was he trying to do, was he trying to use my family, put

my whole family in jail to force me to confess to a crime I had

not committed. At that time my brother was in the Fair Bluff

jail. My mother at that time was in the police station.

I constantly asked for an attorney. I did not ask for any

particular lawyer. I did not have a chance to make a phone

call. I asked to make one, and they wouldn’t allow me to

make it. As to where I was going to make the phone call to,

I was going to try to get an attorney somewhere. I didn’t know

for sure. I was just going to call a lawyer and ask him to come

down there.

As to whether I was going to call my mother to get a lawyer

or what, my mother was in the police station. I was going to

call an attorney. Mr. Terry brought me to the Columbus

County Jail. I did not make a statement later on. I did not

make a statement around three o’clock in the afternoon on

the 14th day of March. The only statement and the only con-

fession that I made was at eight o’clock in the morning in Fair

Bluff. My brother or my cousin were not indicted, nor was my

mother indicted. Mr. Terry was good enough to keep his word.

He said he would turn them loose if I confessed. That morning

I confessed, and he turned them aloose. I told him that after-

noon at three o'clock that I didn’t do it after they released my

mother and my brother and cousin. He later called me at three

o'clock that afterncon, approximately three o'clock that after-

noon, in his office. He wanted me to make another statement.

I told him that I had made my statement that morning and

25

now I was pleading not guilty and I wanted an attorney. We

joked; he joked and I joked. He tried to get me to talk and

say something. I told him that I had made my statement,

that I hadn’t done anything. I made the statement that morn-

ing at eight o'clock, because he (Mr. Terry) give me his word

he was going to put my mother in jail and my brother and

he was going to indict them.

“=

26

Appendix E

VOIR DIRE FINDING — FILE 73CR1889, 1890, 1891

FILE 73CR1946, 1950, 1951.

The State has established by clear and convincing evidence,

and the Court finds, the following:

(1) That on March 14, 1973, Officer L. D. Hammond of the

Fair Bluff Police Department, while on vehicular patro] fol-

lowing a car he had under surveillance, saw the car stop and

saw the defendant Joseph Francis Alexander approach the car

and then run back from near a city street and hide in the re-

cess of a house; the officer apprehended said defendant, who

refused to answer any questions; said defendant was then

searched by Officer Hammond, who found a box of .22 caliber

cartridges, and shortly thereafter on a second search found a

$100 bill in defendant's pocket, rolled up, and when asked if

defendant wanted a receipt, said he did not want the money,

that it belonged to Carl Meares, who was known as the man-

ager of Ellis Meares & Son, Inc.

(2) That Officer Hammond and Chief of Police Bobby

Holmes, about twenty minutes after said defendant was appre-

hended returned to the house where said defendant was hid-

ing and found a canvas bag containing $2,667.65.

(3) That said officers then determined that there was a

breaking and entering of the store building of Ellis Meares &

Son, Inc., in Fair Bluff.

(4) That the driver of the car under surveillance and the

passenger, a brother and first cousin of the defendant Strick-

land, were taken into custody and retained at the local jail.

(5) That S.B.1. Agent W. P. Terry, Chief Holmes, and

Sheriff A. L. “Ben” Duke then went to the home of the parents

of the defendant Strickland where Chief Holmes told Mrs.

Strickland that he had her son, Franklin Strickland, and his

cousin in custody in connection with the break-in; that if she

AS EN CY ree

27

were hiding the defendant Floyd Strickland, Jr., and knew he

had committed the crime, she could be indicted; and that if

she knew where the defendant Floyd Strickland, Jr., was she

should tell him to come to police headquarters.

(6) That shortly thereafter, about eight a.m., the defendant

Strickland came to the police station and “turned himself in,”

and he was placed in custody.

(7) The Officer Hammond and S.B.I. Agent Terry then

took the defendant Alexander to the office at the police station,

advised him of his Miranda rights, and asked if he wanted to

make a statement; that the defendant Alexander said he would

make a statement if Officer Hammond would leave; that the

defendant Alexander then made a statement and told Agent

Terry that he and the defendant Strickland had made an

entry through the roof of the store, opened two safes with

tools, took some money, stole two pistols, and then left.

(8) That at about nine a.m. Agent Terry and Chief Holmes,

in an office at the police station, S.B.1. Agent Terry warned

the defendant Strickland of his Miranda rights and asked

him if he wanted to make a statement and told him that it

appeared his brother and his cousin could be implicated since

they drove the car away from the place where the defendant

Alexander was apprehended; that the defendant Strickland

reflected for a few minutes, said he knew nothing about the

break-in, and said he wanted a lawyer; that the interrogation

was stopped.

(9) That about noon Franklin Strickland and his cousin

were released, and the defendants Strickland and Alexander

were transferred to the Columbus County Law Enforcement

Center, in Whiteville.

(10) That about three p.m. the defendant Strickland was

brought to Agent Terry’s office in the Law Enforcement Cen-

ter where Agent Terry and Chief Holmes were waiting; that

Agent Terry again warned the defendant Strickland of his

28

Miranda rights; that the defendant stated he understood his

rights, and that he would make a statement if the defendant

Alexander were brought in because he did not want to talk

behind his back; that the defendant Alexander was brought

in; and that the defendant Strickland made a joint confession

with the defendant Alexander.

(11) That the defendant Strickland has been convicted

twice of receiving stolen goods, of breaking or entering, of

larceny, and of escape.

And the Court concludes as follows:

(1) That when Chief Holmes and S.B.I. Agent Terry

attempted to interrogate the defendant Strickland at nine a.m.

the defendant understood his rights against self-incrimination

and requested an attorney for the purpose only of stopping

the interrogation, the defendant knowing that a lawyer was

not available in Fair Bluff.

(2) That when the defendant Strickland was interrogated

in the office of Agent Terry at three p.m. he was again ad-

vised of his Miranda rights, which he understood, and he knew

that he had the right to have an attorney present but he did

not request an attorney and did not want one.

(3) That the defendant Strickland had a strong feeling of

friendship for the defendant Alexander, knew that the law

officers had a strong case against Alexander, and knew that

the officers were confident that he was acting in concert with

the defendant Alexander.

(4) That the testimony of the defendant Strickland on

Voir Dire is not believable.

(5) That the confession of the defendant Alexander made

about eight a.m. on the 14th day of March, 1973, was made

after being warned of his Miranda rights, which he fully

understood, and was freely, voluntarily, and knowingly made;

and that his joint confession with the defendant Strickland,

29

made the same day at about three p.m. was voluntarily and

knowingly made when only the defendant Strickland was be-

ing interrogated by the law officers.

(6) That the defendant Strickland has a substantial

criminal record and had acquired substantial knowledge of

criminal procedure and law, including his Miranda rights, and

his confession was not motivated by any promise of immunity

for his brother, Franklin Strickland, but was made after being

warned of his Miranda rights, which he understood, and was

freely, voluntarily, and knowingly made.

Prepared after jury retired on Friday, 22 June 1973.

s / EDWARD B. CLARK

Judge Presiding

A.