Petition — Rhode Island v. Innis

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Supreme Court, U. &~

FILED

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JAN 5 1979 ||

In the Sc te

Supreme Court of the United States.

OctToBer TERM, 1978.

No. 78 ob ] 0 v4 6

STATE OF RHODE ISLAND,

PETITIONER,

v.

THOMAS J. INNIS,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme

Court of the State of Rhode Island.

DENNIs J. Roserrs II,

Attorney General,

Nancy Marks RAHMES,

Special Assistant Attorney General,

Chief, Criminal Appellate Division,

Providence County Courthouse,

Providence, Rhode Island 02903.

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Question presented

Constitutional provisions involved

Statement of the case

Prior proceedings

Statement of facts

Reasons for granting the writ

Introduction

I. The decision rests solely upon the Constitution

of the United States

II. The court below improperly extended the re-

quirements of Miranda v. Arizona, 384 U.S.

436 (1966), to a situation where no custodial in-

terrogation took place

III. Physical evidence, located and seized as a

result of a statement obtained in violation of

Miranda v. Arizona, 384 U.S. 436 (1966), is not

per se inadmissible

Conclusion

NI nN WW ND NO — =

10

14

Appendix follows page 14

Table of Authorities Cited.

CASES.

Brewer v. Williams, 430 U.S. 387 (1977) 7, 8, 9, 10

Escobedo v. Illinois, 378 U.S. 478 (1964)

9

ii TABLE OF AUTHORITIES. CITED.

Harris v. New York, 401 U.S. 222 (1971) 1]

Jankovich v. Toll Road Comm'n, 379 U.S. 487 (1965) 7

Lynumn Vv. Illinois, 372 U.S. 528 (1963) 9

Massiah v. United States, 377 U.S. 201 (1964) 7,9

Michigan v. Mosley, 423 U.S. 96 (1975) 8

Michigan v. Tucker, 417 U.S. 433 (1974) 7. cae dy Ae

Miranda v. Arizona, 384 U.S. 436 (1966) 2, 4, 6, 7, 8,

9, 10 et seq.

Ohio v. Gallagher, 425 U.S. 257 (1976) : ae

Oregon v. Hass, 420 U.S. 714 (1975) ll

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 12

Spano v. New York, 360 U.S. 315 (1959) 9

United States v. Janis, 428 U.S. 433 (1976) il

Wong Sun v. United States, 371 U.S. 471 (1963) 10, 13

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fourth Amendment 10

Fifth Amendment 2,9, 10

Sixth Amendment ; a

Fourteenth Amendment 3

28 U.S.C. § 1257(3) 2

In the

Supreme Court of the United States.

Ocroser Term, 1978.

No.

STATE OF RHODE ISLAND,

PETITIONER,

v.

THOMAS J. INNIS,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme

Court of the State of Rhode Island.

Opinion Below.

The opinion of the Supreme Court of Rhode Island, not yet

reported, appears in the Appendix hereto (pp. la-29a).

Jurisdiction.

The decision of the Supreme Court of Rhode Island was

entered on August 9, 1978. A motion to reargue out of

time was denied by the Supreme Court of Rhode Island on

December 21, 1978. This Court has granted two extensions

2

of time in which to petition for a writ of certiorari, thereby ex-

tending the time in which to file the petition to and including

January 6, 1979. This Court’s jurisdiction is invoked under 28

. U.S.C. § 1257(3).

Question Presented.

Whether the Supreme Court of Rhode Island used the cor-

rect federal constitutional standards in excluding a shotgun

from evidence on the basis of improper interrogation and lack

of intelligent waiver under Miranda v. Arizona, 384 U.S. 436

(1966), where an arrested suspect, minutes after receiving and

asserting his Miranda rights, volunteered to help police recover

the shotgun upon overhearing a conversation between two

patrolmen to the effect that the shotgun was probably hidden

near an area school, and, in fact, helped recover the shotgun

after once more receiving but then relinquishing his Miranda

rights.

Constitutional Provisions Involved.

FirtH AMENDMENT.

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shal! be compelled in any

3

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.”

FOURTEENTH AMENDMENT.

Section 1. “. . . nor shall any State deprive any person

of life, liberty, or property, without due process of law

Statement of the Case.

Prion PROCEEDINGS.

On November 12, 1975, after a jury trial, Thomas J. Innis

was found guilty of kidnapping, robbery, and murder in the

first degree. Prior to trial the defendant filed a motion to sup-

press a shotgun which had been found by the police, with the

defendant’s assistance, at the time of arrest. At the point

when the State offered to place the shotgun into evidence, the

jury was sent out and a voir dire was conducted. At the con-

clusion of the hearing the trial judge made findings of fact and

rulings of law on the motion to suppress and concluded that

the shotgun was admissible (App. 30a-34a).

On appeal, the Supreme Court of Rhode Island reversed

and set aside the trial judge’s ruling on the admissibility of the

shotgun. State of Rhode Island v. Thomas J. Innis (App.

la-29a). The case was remanded to the lower court for a new

trial.

4

STATEMENT OF FACTs.

On January 16, 1975, the body of John Mulvaney, a cab

driver, was found in a shallow grave in Coventry, Rhode Is-

land. Death resulted from a shotgun blast to the back of the

head. Thomas J. Innis was sought as a suspect.

On January 17, 1975, shortly after midnight, the police re-

ceived a report from a cab driver that Innis had been dropped

off in the Mount Pleasant area of Providence, Rhode Island,

and was carrying a sawed-off shotgun. The Providence police

began a search of the area. At approximately 4:30 a.m.

Patrolman Lovell apprehended the defendant, placed him

under arrest, searched for weapons, and advised him of his

Miranda rights. The defendant said he understood these

rights. Shortly thereafter Sergeant Sears arrived at the scene

and again advised Innis of his constitutional rights under

Miranda. Finally, Captain Leyden arrived and once more ad-

vised him of his Miranda rights. In response to the Captain’s

warnings the deferdant stated that he wanted an atturney.

The Captain then directed three officers to place the defend-

ant in the caged wagon and transport him to Central Station.

They were also directed not to question the defendant in any

way.

While en route to the Central Station Patrolman Gleckman,

who had been on the force less than two years, began a conver-

sation with Patrolman McKenna. The defendant could hear

this conversation. Patrolman Gleckman stated:

“A. At this point, I was talking back and forth with

Patrolman McKenna stating that I frequent this area

while on patrol and there’s a lot of handicapped children

running around in this area, and God forbid one of them

might find a weapon with shells and they might hurt

themselves.

5

“Q. Who were you talking to?

“A. Patrolman McKenna.

“Q. Did you say anything to the suspect Innis?

“A. No, I didn’t.

“Q. Did he say anything to you prior to this?

“A. At this point he stated ‘stop’.

“. No. My question, prior to your saying that, had

the defendant said anything?

“A. No.

“Q. Had anybody said anything to him?

“A. No.

“Q. And you were talking to Patrolman McKenna?

“A. Right.

“Q. And what happened next?

“A. At that point, as I was saying, there is kids run-

ning around there, as it is a handicapped school, and he

says, you know, back and forth with Patrolman McKen-

na, he at this point said: ‘Stop, turn around, I'll show you

where it is.’ At this point, Patrolman McKenna got on

the mike and told the captain: ‘We're returning to the

scene of the crime, or where the weapon might be, and

the subject is going to show us where it will be.’

Patrolman McKenna radioed Captain Leyden and informed

him they were returning to the scene of the arrest to locate tne

weapon. The car had traveled less than a mile at the time of

this statement and they returned to the arrest scene at Oba-

diah Brown Road within minutes of leaving.

Innis alighted from the wagon and Captain Leyden again

advised him of his rights. Innis said he understood those rights

but wanted to show them where the gun was because of the

school that was in the area and the “small kids around.” He

was placed in the wagon and all the cars proceeded to a nearby

6

field. The defendant at first had trouble finding the weapon,

finally locating it under some rocks along the side of Obadiah —

Brown Road.

The defendant did not dispute any of these facts either at

trial or on appeal. The trial judge ruled that the shotgun was

admissible, a copy of which ruling is appended hereto (App.

30a-34a). .

The defendant was found guilty by a jury of murder, kid-

napping, and robbery. He was sentenced to life imprisonment

for the murder and received concurrent sentences of 20 years

for the kidnapping and 30 years for the robbery. The defend-

ant appealed his conviction to the Sup*eme Court of Rhode

Island.

Seven issues were raised on appeal. The Supreme Court of

Rhode Island sustained the defendant’s appeal, with two of

the five justices dissenting. The ruling wes based solely upon

two of the issues raised.! The majority found that the defend-

ant had exercised his Miranda right to counsel and that Patrol-

man Gleckman’s statement constituted interrogation without

a valid waiver from the defendant of his Miranda rights. The

court also concluded that, irrespective of the fourth set of

warnings given by Captain Leyden, the seizure of the gun was

the product of the improper remarks of Patrolman Gleckman

and should have been suppressed as “fruit of the poisonous

tree.” The majority’s decision was grounded solely upon the

Federal Constitution as interpreted by various federal and

state decisions.

'The State Supreme Court also ruled that a defendant may not be con-

victed of both murder in the first degree under a felony murder theory and

the underlying felony. The State does not seek review of this holding.

7

Reasons for Granting the Writ.

INTRODUCTION.

The petitioner argues the following reasons why this peti-

tion for writ of certiorari should be granted:

1. The decision rests solely upon the Constitution of the

United States.

2. The decision of the Rhode Island Supreme Court is based

upon an erroneous expansion of Brewer v. Williams, 430 U.S.

387 (1977), Miranda v. Arizona, 384 U.S. 436 (1966), and

Massiah v. United States, 377 U.S. 201 (1964), which is not in

accord with applicable decisions of this Court and conflicts

with’ other state and federal decisions.

3. The decision of the Rhode Island Supreme Court repre-

sents an unwarranted expansion of the exclusionary rule enun-

ciated in Miranda v. Arizona, 384 U.S. 436 (1966), which con-

flicts with the spirit of Michigan v. Tucker, 417 U.S. 433

(1974).

I. Tue Decision Rests SOLELY UPON THE CONSTITUTION

OF THE UNITED STATES.

There are no valid, independent state grounds for the deci-

sion reached by the Supreme Court of Rhode Island. There-

fore, the doctrine expressed in Jankovich v. Toll Road

Comm'n, 379 U.S. 487 (1965), is not applicable. Further,

there is no need to remand this case to the Supreme Court of

Rhode Island for clarification of its opinion. Ohio v. Galla-

gher, 425 U.S. 257 (1976). Each of the state cases cited by the

Rhode Island Supreme Court in its decision rested solely on

federal constitutional grounds.

8

II. THe Court BELow IMPROPERLY EXTENDED THE REQUIRE-

MENTS OF MIRANDA V. ARIZONA, 384 U.S. 436 (1966), To a

SITUATION WHERE No CustopiAL INTERROGATION TOOK

PLACE.

The Supreme Court of Rhode Island held that Innis had

been improperly interrogated within the meaning of Brewer v.

Williams, 430 U.S. 387 (1977), in violation of his request for

counsel under Miranda v. Arizona, 384 U.S. 436 (1966). The

interrogation allegedly occurred when Patrolman Gleckman

commented to Patrolman McKenna on the probability that a

child from a nearby school might find the missing shotgun.

The State argues that this conclusion was erroneous as a matter

of federal constitutional law.

The State Supreme Court took the position that if a defend-

ant makes a statement after asserting his Miranda rights then it

must be the result of compulsion, subtle or otherwise. The

majority reasoned that Brewer v. Williams, supra, had ex-

panded the “concept of interrogation” and that in light of this

expanded definition and in light of the factual similarity of the

two cases, they were justified in viewing the comments of the

officers as interrogation and in rejecting the defendant’s subse-

quent waiver of Miranda rights. Logically, this decision

precludes, as a matter of federal constitutional-law, the ex-

istence of voluntary and spontaneous statements once a de-

fendant has asserted his Miranda rights and also precludes any

subsequent waiver of those rights. Such a conclusion is con-

trary to decisions of this Court. Miranda v. Arizona, supra, at

478; Michigan v. Mosley, 423 U.S. 96, 102 (1975). As the

dissenters in the case at bar noted, Miranda does not require

that police assume the roles of contemplative monks or that

suspects be transported and confined in sterile atmospheres

free from any and all oral and visual stimuli which might

9

cause them to reconsider a previous assertion of the Miranda

rights.

The State Supreme Court’s initial premise that Brewer

“substantially expanded the concept of interrogation” was er-

roneous. This Court had previously recognized and con-

demned the psychological technique employed by the Iowa

police during the car trip. Miranda v. Arizona, supra; Esco-

bedo v. Illinois, 378 U.S. 478 (1964); Lynumn v. Illinois, 372

U.S. 528 (1963); Spano v. New York, 360 U.S. 315 (1959).

Consequently, the position taken in Brewer was neither inno-

vative nor expansionistic.

Furthermore, the interrogation which took place in Brewer

is not analogous to the sequence of events which took place in

the case at bar. It is clear from the record in Brewer, a Sixth

Amendment case, that the defendant was deliberately isolated

from counsel after arraignment and from any outside contact,

and that the detective’s comments were specifically directed to

the defendant and deliberately worded in a manner thought to

appeal to the emotions and known weaknesses of the defend-

ant solely in an effort to produce incriminating responses. In

the case at bar, a Fifth Amendment case, the challenged com-

ments were directed to a fellow officer in a casual, off-hand

manner as the group made the short drive to the police station

moments after the arrest and prior t. arraignment. These re-

marks were not surreptitious as in Massiah v. United States,

supra, or preplanned and deliberate as in Brewer. Indeed,

only a cynic could conclude that Gleckman, a patrolman with

less than two years on the force, planned and executed the

“ploy” during the three to five minutes between the time he

was assigned to the wagon by Captain Leyden and the point

when Innis volunteered to locate the shotgun. Where the

record is devoid of any indication that Gleckman intended to

elicit incriminating statements from Innis, it was erroneous for

10

the lower court to consider Brewer v. Williams, supra, dis-

positive on this issue and to find that Innis was interrogated.

In the case at bar the record is barren of any indication that

Innis was abused, threatened, coerced or tricked into revealing

the location of the gun. After he directed the officers to turn

the car around nothing more was said. Upon their return to

the scene, Innis stepped out of the car and was again advised

of his Miranda rights by Captain Leyden. Innis expressly

acknowledged that he understood these rights but nevertheless

wished to retrieve the gun. The State Supreme Court’s con-

clusion that Innis had been interrogated extends the meaning -

of the term “interrogated” to the point of absurdity. Their

conclusion erroneously applies principles of federal constitu-

tional law to the undisputed facts of this case.

III. Purysicat EvipeNce, LOCATED AND SEIZED AS A RESULT OF

A STATEMENT OBTAINED IN VIOLATION OF MIRANDA V. ARI-

ZONA, 384 U.S. 436 (1966), is Nor Per SE INADMISSIBLE.

The Supreme Court of Rhode Island held that in spite of the

receipt of renewed Miranda warnings by the defendant after

he returned to the scene of the arrest and in spite of his affirm-

ative waiver of those rights, the location and seizure of.the

shotgun were the product of Patrolman Gleckman’s improper

comments and the gun was therefore inadmissiMle as “fruit of

the poisonous tree.” Wong Sun v. United States, 371 U.S. 471

(1963). Assuming arguendo that the patrolman’s “observa-

tion” constituted “interrogation,” the State Supreme Court’s

conclusion that the shotgun was inadmissible as a matter of

federal constitutional law was erroneous. Wong Sun, of

course, is a Fourth Amendment case whose rationale has never

been extended to the Fifth Amendment. The State submits

that the lower court in this case erroneously adopted a per se

1]

approach to the exclusionary rule of Miranda. This approach

expands Miranda beyond the boundaries of that decision and

conflicts with the other rulings of this Court.

This Court ruled in Harris v. New York, 401 U.S. 222

(1971), that an accused’s statement taken in violation of

Miranda could be used to impeach the direct testimony of the

accused at trial. The Court stated:

“It does not follow from Miranda that evidenve inad-

missible against an accused in the prosecution’s case in

chief is barred for all purposes, provided of course that

the trustworthiness of the evidence satisfies legal stand-

ards.” 401 U.S. at 224.

Three years later, in Michigan v. Tucker, 417 U.S. 433 (1974),

this Court held admissible at trial the testimony of a witness

whose existence had been discovered as a result of a defend-

ant’s statement, despite the fact that the statement had been

obtained in violation of defendant’s Miranda rights. See also

Oregon v. Hass, 420 U.S. 714 (1975); United States v. Janis,

428 U.S. 433 (1976).

The State submits that Michigan v. Tucker is controlling in

this case and that the shotgun was properly admitted into evi-

dence. In Michigan v. Tucker, a case involving a pre-Miranda

arrest, this Court reasoned that the officers could not be

faulted for failing to give warnings which did not measure up

to the Miranda standards. Since the defendant’s statement

had been excluded from evidence, no purpose would have

been served by excluding the evidence located as a result of the

statement.? Similarly, in the case at bar, the officers’ strict

*In the case at bar, the defendant only requested that the shotgun be ex-

cluded from evidence. His statements to the police were never themselves

challenged.

12

and immediate compliance with the Miranda requirements

demonstrates that they acted in complete good faith and with-

out fault. Certainly, no officer could have anticipated, or

could have been expected to anticipate, that Miranda forbade

the casual observation which Patrolman Gleckman made to

his fellow officer. Secondly, as in Michigan v. Tucker, the evi-

dence obtained in the case at bar as a result of defendant’s

statement is highly reliable. Since real evidence carries with it

greater indicia of trustworthiness than oral testimony,

Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973) (Powell,

J., concurring), there is even greater reason supporting admis-

sion of the gun than that which existed in Tucker supporting

the admission of the oral testimony of the alibi witness.

The purpose behind the exclusionary rule would not be

served by excluding the weapon seized in this case. The exclu-

sionary rule was designed primarily to deter police miscon-

duct.

“The deterrent purpose of the exclusionary rule neces-

sarily assumes that the police have engaged in: willful, or

at the very least negligent, conduct which has deprived

the defendant of some right. . . . Where the official ac-

tion was pursued in complete good faith, however, the

deterrence rationale loses much of its force.” Michigan

v. Tucker, supra, at 447.

There are no indicia of deliberate police misconduct in the

case at bar. Innis received Miranda warnings from three dif-

ferent officers in succession before he was placed in the police

wagon. Captain Leyden had instructed the officers not to

question him. The record is devoid of any indication that In-

nis was treated abusively. Nor was there any compulsion for

Innis to follow through with his initial spontaneous offer of

13

assistance for, after the wagon returned to the scene of the ar-

rest, Innis was once more given the Miranda warnings. The

defendant said he understood but wished to show the officers

where the gun was hidden. The only police conduct which

even hints at interrogation was one statement made by one po-

lice officer to another concerning the location of a school in the

area and the likelihood of a child locating the gun before the

police did. Because the police believed they had fully com-

plied with Miranda, no useful purpose of the exclusionary rule

would be served by the exclusion of the gun. Innis was never

intimidated or tricked into revealing the location of the

weapon. The record makes it clear that the police were striv-

ing to ensure that the defendant’s rights were protected and

there is no indication that Innis perceived the situation as

otherwise. Assuming that Officer Gleckman’s observation

constituted unlawful interrogation, the suppression of defend-

ant’s response to that observation is sufficient judicial sanc-

tion.

Since the police activity was conducted in complete good

faith, and where the evidence obtained is trustworthy and

highly reliable, the exclusion of the gun from evidence as fruit

of the improper remarks by the officer would serve no valid

purpose, and would have no deterrent effect. The application

of the Wong Sun rationale by the Rhode Island Supreme Court

violates the logic of Michigan v. Tucker and the purpose

behind the rules enunciated in Miranda v. Arizona.

14

Conclusion.

For the reasons stated above, the petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

DENNIS J. ROBERTS II,

Attorney General,

NANCY MARKS RAHMES,

Special Assistant Attorney General,

Chief, Criminal Appellate Division,

Providence County Courthouse,

Providence, Rhode Island 02903.

la

STATE OF RHODE ISLAND

AND PROVINCE PLANTATIONS

SUPREME COURT

STATE

v. No. 75-333-C.A.

THOMAS J. INNIS

Opinion

August 9, 1978

Doris, J. The defendant, Thomas J. Innis, was tried before

a justice of the Superior Court, sitting with a jury, on an in-

dictment charging him with murder, kidnapping and rob-

bery.'! The jury returned verdicts of guilty on all three counts.

The defendant was sentenced to life imprisonment for the

murder and received concurrent sentences of 20 years for the

kidnapping and 30 years for the robbery. The defendant ap-

peals.

The case presented by the state at trial was built primarily

on circumstantial evidence. The testimony revealed that de-

fendant had been picked up by a taxi on the evening of January

12, 1975, in Providence. On January 16, 1975, the body of the

cab driver was found in a shallow grave in Coventry. Death

resulted from a shotgun blast to the back of the head. Wit-

nesses testified that defendant made statements implicating

himself in the crime, and the state presented evidence that de-

'The indictment initially contained six counts. One count was severed

and passed at the beginning of trial. The remaining two counts were merged

and passed at the close of the state’s case.

2a

fendant was seen in possession of a sawed-off shotgun prior to

the commission of the crime. A sawed-off shotgun was intro-

duced into evidence by the state.

The defendant brings several claims of error before us on

appeal. Based upon our view of this case, we need only ad-

dress two of defendant’s contentions.

The initial assignment of error we address is defendant’s

claim that the trial justice erred in denying defendant’s motion

to suppress evidence obtained in violation of his fifth amend-

ment rights.

The evidence presented by the state at the suppression hear-

ing indicated that defendant was apprehended by Patrolman

Robert M. Lovell of the Providence Police Department early

on the morning of January 17, 1975. Lovell placed defendant

under arrest and advised him of his constitutional rights pur-

_suant to Miranda v. Arizona, 384 US. 436, 86S. Ct. 1602, 16

L. Ed. 2d 694 (1966). Sergeant Francis J. Sears then arrived

at the scene of the arrest, and he also gave defendant his

Miranda warnings.

Responding to the call that defendant had been appre-

hended, Captain John J. Leyden arrived and again advised de-

fendant of his rights. In response to the warnings given by

Leyden, defendant stated that he wanted to see an attorney.

At this point Leyden had defendant placed in a police wagon

for transportation to police headquarters. Three Providence

police officers, Joseph Gleckman, Walter Williams and Rich-

ard McKenna, were assigned to the station wagon. Leyden

ordered the three patrolmen not to question or coerce defend-

ant in any way.

The patrolmen placed defendant in the station wagon and

began their journey to the police station.?, Once in the wagon,

* At the suppression hearing on defendant's motion to suppress the shotgun

and the evidence related to its discovery, there was some discrepancy in the

3a

Gleckman began a conversation with McKenna concerning

the missing shotgun. Gleckman informed McKenna that

there was a school for handicaped children in the area, and he

expressed the fear that one of the children might find the

weapon and injure himself. The defendant, who was clearly

able to hear the entire conversation, asked the pclice to return

to the scene of the arrest so that he could show them where the

shotgun was hidden. It is undisputed that at no time were any

questions asked of defendant before he offered to lead police to

the weapon.

The police wagon, which had traveled approximately one-

half to one mile from the scene of the arrest, was driven back :

to that area, where a search for the shotgun was in progress.

Upon returning, defendant was again advised of his rights by

Captain Leyden. Leyden then asked defendant if he under-

stood his rights, whereupon defendant answered that he did,

and that he wanted to show the police where the weapon was

hidden. The defendant then led police to the hidden shotgun

and shells, which were later introduced into evidence at trial

over defendant’s objection.

The defendant asserts that the introduction of the sawed-off

shotgun and shells, as well as the testimony of the police offi-

cers relating to the discovery of the evidence, violated both his

right against self-incrimination and his right to counsel.

We turn to defendant’s fifth amendment claim. ‘There can

be no doubt that an accused possesses an absolute right to con-

sult an attorney before being subjected to police interrogation.

A“anda v. Arizona, supra; State v. Kachanis, R.I. , 379

testimony of the three patrolmen as to their seating arrangements in the

wagon. Gleckman and Williams both testified that McKenna drove the

vehicle. Gleckman sat with him in the front seat, and Williams was in the

rear of the vehicle with defendant. McKenna, however, testified that he was

sitting in the front seat with Williams, who was driving, while Gleckman

was in the back with defendant.

4a

A. 2d 915, 916 (1977); State v. Lachapelle, 112 R.1. 105, 111,

308 A. 2d 467, 470 (1973). There is no dispute that defendant

requested to see a lawyer after being initially advised of his

rights by Captain Leyden; and clearly, the incriminating evi-

dence was located by police with defendant’s asssistance prior

to his consulting an attorney. The issues we address, there-

fore, are (1) whether defendant was “interrogated” within the

meaning of Miranda prior to leading police to the shotgun,

and (2) if so, whether he submitted to that interrogation

voluntarily by waiving his right against self-incrimination.

There is no dispute that defendant was in custody.

The guidelines set down by the United States Supreme

Court regarding police questioning are straightforward and

unambiguous:

“Once warnings have been given, the subsequent pro-

cedure is clear. If the individual indicates in any man-

ner, at any time prior tu or during questioning, that he

wishes to remain silent, the interrogation must cease. At

this point he has shown that he intends to exercise his

Fifth Amendment privilege; any statement taken after

the person invokes his privilege cannot be other than the

product of compulsion, subtle or otherwise. * * * If the

individual states that he wants an attorney, the interroga-

tion must cease until an attorney is present. At that time,

the individual must have an opportunity to confer with

the attorney and to have him present during any subse-

quent questioning. * * *

“If the interrogation continues without the presence of

an attorney and a statement is taken, a heavy burden

rests on the government to demonstrate that the defend-

ant knowingly and intelligently waived his privilege

against self-incrimination and his right to retained or ap-

5a

pointed counsel.” Miranda v. Arizona, supra at 473-75,

86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723-24.

We have strictly and conscientiously applied the teachings

of the Miranda decision. See, e.g., State v. Travis, 116 R.1.

678, 360 A.2d 548 (1976); State v. Lachapelle, supra.

Since Miranda, the traditional notions of both “custody”

and “interrogation” have been gradually expanded to meet the

changing techniques and tactics of law enforcement personnel.

With respect to interrogation, we have held that, under cer-

tain circumstances, even casual conversation can be interroga-

tion when it is initiated under false pretenses for the purpose of

obtaining incriminating statements. See State v. Travis,

supra.

The expansion of the concept of interrogation has most

recently been undertaken by the United States Supreme Court

in Brewer v. Williams, 430 U.S. 387, 97S. Ct. 1232, 51 L. Ed

2d 424 (1977).

In Brewer, the suspect Williams was arrested and arraigned

in Davenport, Iowa, on a charge of abducting a small child,

whom police were unable to locate after arresting the defend-

ant. Williams was represented by counsel in Davenport and

in Des Moines, where the offense was committed. Both law-

yers advised Williams not to make any statements to the police

until he had been transported to Des Moines and had con-

sulted his attorney there. Two police officers were assigned to

drive Williams from Davenport to Des Moines.

During the course of the journey, one of the police officers

began directing statements toward the suspect, who was asked

not to respond, on the subject of the child’s need for a Christian

burial. At this point Williams had been given his Miranda

warnings three times but had expressed no willingness to dis-

cuss the case and had in fact already told police that he would

\

\

6a

talk with them after consulting his Des Moines lawyer. How-

ever, as a result of the officer’s remarks, Williams made several

incriminating statements and then led police to the victim’s

body.

Williams was convicted in state court and his conviction

was affirmed by the Iowa Supreme Court. He then petitioned

for a writ of habeas corpus in federal court. The District

Court ruled that the evidence of the events which transpired

during the automobile trip was wrongly admitted against

Williams because the statements were obtained in violation of

both Williams’ fifth and sixth amendment rights. Williams v.

Brewer, 375 F. Supp. 170 (S.D. Iowa 1974). That decision

was affirmed by the Court of Appeals. Williams v. Brewer,

509 F. 2d 227 (8th Cir. 1974).

The Supreme Court decided the case strictly on sixth

amendment grounds and held that Williams’ right to counsel

had been violated by the so-called “Christian burial speech,”

given to him by the police officer. The Court, however, spe-

cifically upheld the lower court ruling that the speech was, in

effect, a form of interrogation. Brewer v. Williams, supra at

400, 97 S. Ct. at 1240, 51 L. Ed. 2d at 437. The Supreme

Court decision noted that Williams’ constitutional claim to

counsel would not “have come into play if there had been no

interrogation.” Id.

While there are several factors relating to the Brewer re-

marks which distinguish that case from the one before us, we

find the differences to be constitutionally insignificant. To

otherwise would be “to play games with an individual’s consti-

tutional guarantees.” State v. Travis, supra at 682-83, 360

A.2d at 551.

As the Supreme Court has noted, absent a valid waiver, any

statement taken after a suspect invokes his fifth amendment

rights “cannot be other than the product of compulsion, subtle

or otherwise.” Miranda v. Arizona, supra at 474, 86S. Ct. at

Ta

1628, 16 L. Ed. 2d at 723. We do not accept the argument

that Officer Gleckman’s remarks do not constitute interroga-

tion because he was expressing only a concern for public safety

and not intentionally attempting to solicit evidence of an in-

criminating nature. We have already held that evidence ob-

tained by a police officer from a suspect for the purpose of self-

protection of the officer in the absence of legal counsel or of a

valid waiver may not be used against the suspect at trial. State

v. Vargus, R.I. ,373A.2d 150 (1977). Public safety, like

self-defense certainly a subject foremost in the mind of a police

officer, nevertheless must not be permitted to become a vehi-

cle for violating a suspect’s constitutional rights.

We also reject the contention that no interrogation occurred

because defendant was not addressed personally. The police

officers in the wagon chose not to discuss sports or the weather

but the crime for which defendant was arrested. The defend-

ant, alone in a police wagon with three officers at 4 a.m.,

underwent the same psychological pressures which moved

Williams to lead police to the body of his victim. Police offi-

cers in such a situation must not be permitted to achieve in-

directly, by talking with one another, a result which the Su-

preme Court has said they may not achieve directly by talking

to a suspect who has been ordered not to respond. The same

“subtle compulsion” exists.

On the facts before us, we believe that defendant was inter- _

rogated within the meaning of Miranda in the absence of

counsel after requesting to see an attorney. Unless a valid

waiver occurred, the statements of Officer Gleckman consti-

tuted an infringement of defendant’s right against self-incrimi-

nation. We therefore turn to a discussion of waiver.

It is well settled that whenever a defendant decides to forgo

a right guaranteed by the fifth amendment, the alleged waiver

must meet the strict standard of an intentional relinquishment

or abandonment of a known right. Johnson v. Zerbst, 304

8a

U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466

(1938); State v. Vargus, supra at , 373 A.2d at 154. A

waiver of defendant’s right to remain silent must be made

voluntarily, knowingly and intelligently. Miranda v. Ari-

zona, supra at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.

Courts will entertain every reasonable presumption against

the waiver of a fundamental constitutional right, Johnson v.

Zerbst, supra, by placing a “heavy burden” on the state to

establish that such a waiver occurred. Miranda v. Arizona,

supra at 475, 86S. Ct. at 1628, 16 L. Ed. 2d at 724; State v.

Vargus, supra at, 373 A.2d at 154. -

The evidence presented at the suppression hearing makes it

apparent that defendant received his Miranda warnings on

three occasions prior to being subjected to Officer Gleckman’s

remarks and that he received his warnings once more before

leading police to the shotgun. No one denies that defendant,

upon receiving his warnings for the third time, requested to

see a lawyer.

The trial justice concluded that the statements made by de-

fendant, and his willingness to assist police in locating the

weapon, were not the products of coercion or threats but were

made voluntarily and therefore constituted a waiver of de-

fendant’s constitutional rights. The trial justice stated:

“In the automobile, driving along Chalkstone Avenue,

we have three officers who are out at four in.the morning,

or later, and have been prowling around searching for a

weapon whici: they had reason to believe was there. The

weapon was either loaded or with shells. It is in the area

of a school where when daylight arrives handicapped and

retarded children will be coming to the area. I think it is

entirely understandable that they would voice their con-

cern to each other. And I have to say that I commend the

defendant for responding to the danger which, more than

9a

likely, he did not know of up until that time. There is no

reason for me to believe, and no evidence on which I

should conclude, that he was familiar with the area and

the type of facilities that were there. So the defendant re-

sponded out of a very commendable concern to a situa-

tion that he became acquainted with. I commend him

for it. He responded and then said: ‘Turn around, take

me back and I will show you where the weapon is.’

“It was a waiver, clearly, and on the basis of the evi-

dence that I have heard, an intelligent waiver, of his right

to remain silent. And for whatever reason, whatever

motivates people, as long as it is not the result of threat or

coercion, it is a waiver for all purposes, and the weapon

was found.”

This is not a case where a defendant voluntarily confesses to

a crime or admits to incriminating evidence on his own. The

defendant’s statement to the police admittedly occurred only

after his being subjected to Officer Gleckman’s remarks,

rernarks which were highly improper in light of the fact that

defendant had not been given an opportunity to consult with

his attorney.

The finding of a waiver in this situation would be highly in-

consistent with the conduct of defendant, who just minutes

before had chosen to exercise his right to counsel before being

subjected to questioning. See State v. Lachapelle, supra at

111, 308 A.2d at 470. The record before us lacks any evidence

that defendant ever disavowed his request to speak to an at-

torney or specifically waived any of his Miranda rights while

in the police wagon; nor did he request an opportunity to

discuss the case with one of the officers before Officer

Gleckman’s remarks. There is no evidence in the record

before us indicating that defendant affirmatively waived his

10a

fifth amendment rights at this time other than the fact that he

ultimately agreed to assist the police in locating the incrimi-

nating evidence. Jd. at 111-12, 308 A.2d at 470-71. As the

Supreme Court hes stated:

“An express statement that the individual is willing to

make a statement and does not want an attorney followed

closely by a statement could constitute a waiver. But a

valid waiver will not be presumed simply from the silence

of the accused after warnings are given or simply from

the fact that a confession was in fact eventually

obtained.” Miranda v. Arizona, supra at 475, 86 S. Ct.

at 1628, 16 L. Ed. 2d at 724.

The facts of the case at bar relating to the waiver issue

dovetail the Brewer case with minor exceptions up to the point

at which defendant received the second warning from Captain

Leyden, a warning Williams never received. Because of the

lack of any affirmative evidence other than the ultimate in-

criminating statement, all three federal courts found Williams

had not waived his constitutional rights. It is true that

Williams was known to police as a former mental patient and

a deeply religious individual; we find no such evidence regard-

ing defendant. However, this distinction would be relevant

only if the federal courts at some stage of the proceedings had

found Williams to be mentally incompetent to make such a

waiver. No such finding was made.

The fourth warning received by defendant presents us with

an issue not addressed in Brewer, however. In response to the

warning given by Captain Leyden subsequent to the incrimi-

nating statement but prior to the discovery of the weapon, de-

fendant stated that he understood his rights but wished to

lla

show police where the shotgun was hidden so that no child in

the area would find it and injure himself. At this point, defen-

dant led the police to the sawed-off shotgun that was subse-

quently introduced into evidence at trial over his objection.

We find no merit in the argument that, while defendant’s

statement in the police wagon must be suppressed, the shotgun

itself is admissible evidence on the grounds that defendant

waived his Miranda rights in response to Captain Leyden’s

warnings before he led police to the weapon.

In our view, to allow the shotgun to be admitted into

evidence would be to allow the state to benefit from the illegal

actions which occurred in the police wagon. The seizure of .

the weapon was the product of the improper remarks of Of-

ficer Gleckman. Because of this inescapable fact, the weapon

and any evidence leading to its discovery must be suppressed as

“fruit of the poisonous tree.” We have no doubt that the

discovery of the shotgun occurred as a result of an “exploita-

tion” of the original illegality. Wong Sun v. United States,

371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455

(1963).

Having reached the conclusion that both the shotgun and

defendant’s statements were obtained in violation of defend-

ant’s fifth amendment rights, we must set aside the conviction

and order a new trial unless we are convinced that the error

was harmless beyond a reasonable doubt. Chapman v.

California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705

_ (1967); State v. Lachapelle, supra.

A review of the trial transcript, however, convinces us that

the tainted evidence was certainly a contributing factor in the

conviction of defendant‘, particularly in light of the fact that

most of the other evidence against defendant was cir-

cumstantial in nature. The state has not met its burden of

12a

proving harmlessness beyond a reasonable doubt. Therefore,

the conviction cannot be allowed to stand.

There is one other issue raised by defendant which we feel

compelled to address before this case is retried. The defend-

ant asserts that he cannot be tried and convicted for both

felony murder and the underlying felony, in this case, rob-

bery. To do so, defendant contends, is a violation of the dou-

ble jeopardy clause of the fifth amendment.

There can be no doubt that the murder conviction obtained

against defendant was based solely upon the theory of felony

murder. This is clear from both the evidence presented and

the trial justice’s instructions to the jury.®

The defendant contends that his double jeopardy argument

ought to be upheld in light of the United States Supreme Court

decision of Harris v. Oklahoma, 433 U.S, 682, 97 S. Ct. 2912,

53 L. Ed. 2d 1054 (1977). |

The Harris decision involved a defendant who was first

tried and convicted for felony murder, and then tried and con-

. victed for committing the underlying felony, robbery with

firearms. The Court, in a very brief decision, held:

“Where, as here, conviction for a greater crime,

murder, cannot be had without conviction for the lesser

crime, robbery with firearms, the Double Jeopardy

*The relevant portion of the trial justice’s instruction on murder was

presented as follows:

“Finally, the charge of murder. Murder is: One, an unlawful kill-

ing; Two, of a human being; Three, with malice aforethought, but our

law provides an alternative to that third one in this situation. Our law

provides that any murder committed during the commission of certain

crimes—one of them being a robbery—is murder in the first degree.

We refer to that sometimes as felony murder. The elements then in

this case would be the unlawful killing of a human being while in the

commission of a felony, one of the listed felonies, which is robbery.”

l3a

Clause bars prosecution for the lesser crime after convic-

tion for the greater one * * *. [A] person [who] has been

tried and convicted for a crime which has various in-

cidents included in it * * * cannot be a second time tried

for one of those incidents without being twice put in

jeopardy for the same offense.” Id. at , 97S. Ct. at

2912-13, 53 L. Ed. 2d at 1056.

The state argues that the holding of Harris is restricted to in-

stances in which a defendant is subjected to successive pros-

ecutions, not to cases such as the one at bar in which a defend-

ant is convicted of both crimes at the same trial. We cannot

agree with the state’s argument.

It is our opinion that the question of double jeopardy cannot

depend solely on whether a defendant is tried once or twice for

two crimes which arguably constitute the same offense. “The

Fifth Amendment guarantee against double jeopardy pro-

hibits both successive prosecutions for the same offense as well

as multiple punishment for the same offense.” Newton v.

State, Md. ,373A.2d 262, 264 (1977). The record makes

clear that defendant was punished for both the murder and

the underlying felony. Although he received concurrent

sentences for the two offenses, he has been punished twice.

Id. at’ , 373 A.2d at 265; People v. Martin, 398 Mich. 303,

310, 247 N.W.2d 303, 306 (1976). Therefore, if these crimes

constitute the same offense, defendant has been placed in

jeopardy twice for one illegal act, despite the fact that he had

but one trial. State v. Boudreau, 113 R.I. 497, 322 A.2d 626

(1974).* See also People v. Anderson, 62 Mich. App. 475, 233

N.W.2d 620 (1975).

*In State v. Boudreau, 113 R.1. 497, 322 A.2d 626 (1974), we found a

violation of the double jeopardy clause when a defendant was convicted of

both assault with a dangerous weapon and the commission of a crime of

violence while armed with a pistol. Both convictions occurred at one

criminal proceeding.

l4a

The rule followed in this state is the required evidence test

adopted by the United States Supreme Court and stated in

Blockburger v. United States, 284 U.S. 299, 304, 52S. Ct. 180,

182, 76 L. Ed. 306, 309 (1932):

“[W]here the same act or transaction constitutes a viola-

tion of two distinct statutory provisions, the test to be ap-

plied to determine whether there are two offenses or only

one, is whether each provision requires proof of a fact

which the other does not.”

We have consistently followed this rule. State v. Grullon,

R.I. , 371 A.2d 265, 267-68 (1977); State v. Boudreau, supra

at 503, 322 A.2d at 629; State ex rel. Scott v. Berberian, 109

R.1. 309, 316, 284 A.2d 590, 594 (1971).

The two offenses for which defendant was convicted were

robbery, in violation of G.L. 1956 (1969 Reenactment)

§ 11-39-1 and murder, in violation of G.L. 1956 (1969 Re-

enactment) § 11-23-1.

The statutory crime of robbery incorporates all of the ele-

ments of the crime of robbery as it existed at common law.

These elements are the felonious taking of money or other

property of any value from the person of another, or in his

presence, against his will, by force or fear of force. State v.

Domanski, 57 R.I. 500, 190 A. 854 (1937).

Murder is statutorily defined in § 11-23-1 as “[t]he unlawful

killing of a human being with malice aforethought.” Murder

in the first degree is:

“{MJurder perpetrated by poison, lying in wait, or any

other kind of wilful, deliberate, malicious and premedi-

tated killing, or committed in the perpetration of, or at-

tempt to perpetrate any arson, rape, burglary or robbery,

l5a

or while resisting arrest by, or under arrest of, any state

trooper or policeman in the performance of his duty; or

perpetrated from a premeditated design unlawfully and

maliciously to effect the death of any human being other

than him who is killed * * *.”

As the trial justice charged, the elements of the murder con-

viction obtained against defendant were the unlawful killing

of a human being while in the commission of the felony of rob-

bery.®

The law is clear in cases of felony murder. In order to ob-

tain a conviction, the state must prove all of the elements of

the underlying felony, in additicn to the other elements of

murder, beyond a reasonable doubt. Newton v. State, supra

at , 373 A. 2d at 266-67. The only element which distin-

guishes these two offenses is the proof of the victim’s death.

“The evidence required to secure a first degree murder

conviction is, absent the proof of death, the same evi-

dence required to establish the underlying felony.

Therefore, as only one offense requires proof of a fact

which the other does not, under the required evidence

test the underlying felony and the murder merge.” Jd. at

, 373 A. 2d at 267.

The Newton decision is quite similar to the case at bar and

provides a most insightful discussion on the issue of double

5See note 3, supra. Although we have no doubt that defendant was con-

victed of murder under a felony murder theory, we need only be unable to

say with certainty that the jury did not find defendant guilty of murder

under that theory to reach the result we do today. See People v. Anderson,

62 Mich. App. 475, 482, 233 N.W. 2d 620, 623-24 (1975).

16a

jeopardy. The defendant Newton was convicted of felony

murder and attempted robbery, which provided the underly-

ing felony for the murder conviction. Newton was found guil-

ty of both charges at one trial and was given concurrent sen-

tences of life imprisonment on the murder conviction and 20

years for attempted robbery. Newton appealed, and the

Maryland Court of Appeals held that the separate convictions

and sentences for the two offenses constituted double punish-

ment for the same offense in violation of the double jeopardy

clause of the fifth amendment.

The one factor which distinguishes Newton from the case at

bar is the Maryland Criminal Code, which separates the vari-

ous methods by which a first-degree murder conviction can be

obtained into different statutory sections. Md. Ann. Code, art

27, §§ 407-410. In this state, murder in the first degree is em-

bodied in toto in § 11-23-1.

This difference gives rise to the state’s contention that the

present case does not fall within the parameters of the required

evidence test as outlined by this court. The state argues that it

need not prove the elements of a felony under § 11-23-1 but

may show, inter alia, the more common element of premedi-

tated deliberation. Therefore, it argues, there are separate

elements in the crimes of robbery and first-degree murder

which are not included in the other offense.

We cannot accept the proposition that an individual’s dou-

ble jeopardy protection hinges on a legislative decision to

codify the crime of first-degree murder either into one or

several statutory sections. To do so would be, in effect, to

allow a crucial constitutional protection to rest on legislative

whim. .

We note that the Supreme Court decision in Harris v. Okla-

homa, supra, upon which defendant primarily rests his argu-

ment, was predicated on a statutory scheme such as our own,

wherein the several acts which constitute murder in the first

17a

degree were embodied in one statute. See Okla. Stat. Ann.,

tit. 21, § 701 (West).° |

The case of People v. Anderson, supra, is also on point. In

Anderson, the defendant was found guilty of both first-degree

murder and armed robbery. The murder occurred in the

course of the robbery, but whether the jury reached its verdict

on a felony murder theory or found premeditated deliberation

was unclear. Because of the inability to say that the verdict

was not reached on a felony murder theory, the court held that

the double jeopardy clause had been violated and ordered the

armed robbery conviction Jismissed. In construing the Mich-

igan first-degree murder statute, Mich. Stat. Ann. § 28.548,

which is similar to our own, the court stated:

“[{I]f the jury’s first-degree murder conviction was based

on a finding that the killing took place during the per-

petration of the armed robbery, then the armed robbery

constitutes a necessary element of first-degree (felony)

murder. As a necessary element of first-degree murder,

armed robbery would then become an included offense in

the greater charge.” Jd. at 482, 233 N.W. 2d at 623-24.

We therefore hold that defendant may not be convicted of

both murder in the first degree under a felony murder theory

and the underlying felony of robbery. Upon retrial, if defend-

ant is convicted on the murder count under a felony murder

theory, he may not be separately convicted and punished for

the underlying robbery.” If, however, he is convicted of

® This statute has since been repealed and replaced by Okla. Stat. Ann., tit.

21, § 701.7 (West), which still retains both forms of murder in the first

degree.

7It is incumbent upon a trial justice to determine the basis for a jury’s ver-

dict of guilty on a murder count when a felony murder theory has been ad-

18a

murder under another theory provided in § 11-23-1, or is ac-

quitted of first-degree murder, he may be convicted of the rob-

bery if the evidence presented so warrants.

Because of the decision we reach on the issues discussed, we

do not reach the other assignments of error brought by the de-

fendant.

The defendant’s appeal is sustained, the judgments of con-

viction are vacated, the case is remanded to the Superior Court

for a new trial.

Mr. Justice Paolino participated in the decision but retired

prior to its announcement.

Mr. Justice Kelleher, with whom Mr. Justice Joslin joins,

dissenting. The majority’s opinion grafts a unique and hereto-

fore judicially unrecognized addition to the four warnings re-

quired by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966); the fifth warning would read that the

police, while in the company of a suspect who has been given

his Miranda rights, shall remain silent at all times even among

themselves; otherwise what they say to each otner may be used

to reverse a criminal conviction. I cannot subscribe to the

view that the Federal Constitution now requires the police,

vanced at trial. The trial justice should instruct the jury that it must indicate

by its verdict whether it has found the defendant guilty under the felony

murder theory or whether it has found that the murder was committed “by

poison, lying in wait, or any other kind of wilful, deliberate, malicious and

premeditated killing” as provided in § 11-23-1. The trial justice must also in-

struct the jury that, regardless of its basis for finding the defendant guilty of

murder in the first degree, it must also render a verdict on each of the other

counts contained in the indictment. When the murder conviction is based

upon a felony murder theory, the underlying felony must be merged into the

murder. No conviction for the underlying felony may appear on the record,

and no punishment may be imposed. See Frye v. State, Md.App. , 378

A.2d 155, 157 (1977).

19a

upon arresting a suspect, to assume the role of contemplative

monks at all times while they are in the suspect’s company.

Before considering the constitutional issues, I would briefly

detail the events that preceded the defendant's arrest. Shortly

after the beginning of 1975, defendant, in the presence of his

former girl friend, sawed off the ends of a shotgun. On the

evening of January 12, 1975, he wrapped the shotgun in a blue

and white blanket, went to the adjoining apartment, and

asked the owner of the building to call a cab for him. When

the first cab never arrived, a second was called. The dispatch-

er of the Silver Top Cab Company sent cab 21, with John

Mulvaney driving, to pick up defendant. The owner of the

apartment building watched as defendant entered the cab

while carrying the blue and white blanket. Mr. Mulvaney

radioed the dispatcher that he was going to East Greenwich

with his fare and was never heard from again.

Cab 21 was discovered in a wooded area of Coventry a few

days later. A blue and white blanket was found 200 yards

from the cab. Approximately 800 yards from the cab the nude

body of John Mulvaney was discovered in a shallow grave.

The cause of death was a shotgun blast to the head fired at

close range.

A few hours after his cab ride, defendant knocked on the

door of a Coventry resident and asked for directions to Weaver

Hill Road. The defendant also asked that a cab be-called for

him. The resident explained that no cabs would be running at

that late hour. He noticed that defendant was traveling on

foot and was carrying a red flashlight similar to one owned by

the deceased.

At about 4 a.m. January 13, 1975, defendant arrived at the

home of a friend on Weaver Hill Road, Coventry. The de-

fendant said his car had broken down on Route 95 and asked

to spend the rest of the night there. In the morning defendant

showed his friend the sawed-off shotgun. He also asked his

20a

friend to destroy the red flashlight. After a futile search for

defendant’s car which supposedly had broken down some-

where on Route 95, the friend gave defendant a ride to Prov-

idence.

After the friend had identified State’s Exhibit 41 as the shot-

gun defendant had with him in the early morning of Janu-

ary 13, defense counsel then requested a voir dire “to deter-

mine whether or not this shotgun should be suppressed be-

cause of the fact that it was an illegal search, or a search

without the consent of Mr. Innis, or even the possibility of an

illegal arrest.”” Accordingly, the jury was excused, and an ex-

tensive voir dire was commenced regarding the circumstances

under which the shotgun was discovered or seized.

The first witness called was Providence Patrolman Robert

M. Lovell, who testified that in the early morning hours of

January 17, 1975, he was searching the Mt. Pleasant area of

Providence for the robber of a cab driver. At this point it

should be noted why the Providence police were searching for

defendant in the Smith Hill-Mt. Pleasant area. Shortly before

midnight on January 16 the Providence police had been no-

tified by a cab driver that he had just been robbed by a man

wielding a sawed-off shotgun.' The cab driver had told the

police that he originally picked up his gun-toting fare, later

identified as defendant, in the city of Woonsocket and

dropped him off in Providence, somewhere in the area of

Rhode Island College. The police immediately began search-

ing the general area for defendant. At approximately 4:30

a.m. Patrolman Lovell spotted defendant on Chalkstone

Avenue and placed him under arrest.

In accordance with Miranda v. Arizona, 384 U.S. 436, 86S.

Ct. 1602, 16 L. Ed. 2d 694 (1966), Patrolman Lovell imme-

'The cab driver's testimony was excluded from the jury as prejudicial

“other crimes” evidence.

2la

diately informed defendant of his constitutional rights. With-

in minutes other officers involved in the search for defendant

arrived at the scene of the arrest. Sergeant Francis J. Sears

was the first to arrive. He also informed defendant of his con-

stitutional rights. Captain John Leyden next arrived, and he

also advised defendant of his rights. More specifically, he

notified defendant that he had the right to remain silent, that

anything he said could be used against him in a court of law,

that he had the right to an attorney, and finally that if he

could not afford a lawyer, one would be appointed for him by

the State of Rhode Island. He asked defendant if he under-

stood the rights, and defendant responded in the affirmative.

The defendant then said he wanted to see an attorney. In full

compliance with the dictates of Miranda, Captain Leyden

then ceased all interrogation and ordered three subordinates to

place defendant in a police car and transport him to police

headquarters. Captain Leyden told the three officers that

they were not to question defendant in any way.

Although there is some dispute about the seating arrange-

ment, it would appear that Patrolman Richard McKenna and

Joseph Gleckman occupied the car’s front seat, while Patrol-

man Walter Williams and defendant were back-seat passen-

gers. A wire screen which ran from the top of the back cush-

ion of the front seat to the car’s roof separated the front and

back portions of the car. As the police car proceeded along

Chalkstone Avenue toward Manton Avenue, Officer Gleck-

man began talking to Officer McKenna. The back-seat pas-

sengers could hear their conversation. Officer Gleckman de-

scribed the conversation as follows:

“At this point, I was talking back and forth with

Patrolman McKenna stating that I frequent this area

while on patrol and there’s a lot of handicapped children

running around in this area, and God forbid one of them

22a

might find a weapon with shells and they might hurt

themselves.

.“Q. Who were you talking to?

“A. Patrolman McKenna.

“Q. Did you say anything to the suspect Innis?

“A. No, I didn’t.”

At this point defendant spoke up from the back seat and said:

“Turn around, I'll show you where the weapon is.” Patrol-

man McKenna then radioed Captain Leyden and informed

him they were returning to the scene of the arrest to locate the

weapon. Having traveled less than a mile, they returned to

the arrest scene in a matter of minutes.

When defendant alighted from the police car, Captain Ley-

den ones again advised defendant of his rights. He asked de-

fendant . ae understood these rights, and defendant said he

did, but he wanted to get the gun out of the way because of the

“kids in the area” of the school. The police moved from

Chalkstone Avenue to the Pleasant View School. There, with

the aid of the headlights of various police vehicles, defendant

went out into a nearby field and located the shotgun and some

shells under a pile of rocks.

Today a majority of this court has seen fit to vacate the con-

viction under review on the ground that the admission of the

shotgun violated defendant's constitutional right against self-

incrimination. I cannot agree.

The majority rests its conclusion on the recent Supreme

Court decision in Brewer v. Williams, 430 U.S. 387, 97S. Ct.

1232, 51 L. Ed. 2d 424 (1977).2 Brewer consists of a majority

*Brewer was decided on sixth amendment grounds (right to counsel).

The majority has chosen to rely upon the fifth amendment in reaching

today’s result, despite the explicit refusal by the Supreme Court to decide

Brewer under the fifth amendment. Brewer v. Williams, 430 U.S. 387, 397,

97 S. Ct. 1232, 1239, 51 L. Ed. 2d 424, 435-36 (1977).

23a

opinion and three concurring opinions, all of which are care-

fully worded and narrowly drawn. I believe that if the Su-

preme Court had before it the facts that were elicited at the

trial in the Superior Court, Brewer would be considered inap-

posite.

In Brewer the accused, Williams, surrendered to the police

in Davenport, Iowa, upon the advice of a Des Moines attor-

ney. A warrant had been issued for Williams’ arrest in con-

nection with the Des Moines abduction of a 10-year-old girl.

Williams’ attorney was present at the Des Moines police sta-

tion when the Davenport police called with the information

that Williams had surrendered. In the presence of certain Des

Moines police, the attorney talked to Williams on the phone

and informed him that Des Moines police would be driving to

Davenport to pick him up, that they would not interrogate

him, and that Williams should not talk to the police regarding

the abduction.

Williams was arraigned in Davenport on the Des Moines

warrant and advised of his Miranda rights. He was repre-

sented then by a second attorney, who advised him not to

make any statements to the police until he consulted with his

Des Moines counsel. When the Des Moines police contingent

arrived in Davenport to transport Williams, they refused to al-

low the Davenport attorney to accompany his client on the re-

turn trip. One of the police contingent was a detective who

held the rank of captain. He was present when the Des

Moines attorney had advised Williams to remain silent and as-

sured his client that he would not be interrogated on the trip to

Des Moines. When the detective expressed some reservations

about the no-interrogation arrangements, Williams’ Dav-

enport attorney made it clear to the detective that Williams

was not to be questioned on the way back to Des Moines.

Soon after the Des Moines police set out on the 160-mile

return trip to headquarters, the detective engaged his prisoner

‘

24a

in a “wide ranging conversation.” 430 U.S. at 392, 97S. Ct.

at 1236, 51 L. Ed. 2d at 432. Unlike the situation in the case

presented to us, the detective s»ecifically addressed his re-

marks to the prisoner. Knowing, that the prisoner was a for-

mer mental patient and a man of strong religious conviction,

the detective delivered what is generally referred to as the

“Christian burial speech.” Id. Addressing the prisoner as

“Reverend,” the detective said:

““T want to give you something to think about while

we're traveling down the road. . . . Number one, I want

you to observe the weather conditions, it’s raining, it’s

sleeting, it’s freezing, driving is very treacherous, visibili-

ty is poor, it’s going to be dark early this evening. They

are predicting several inches of snow for tonight, and I

feel that you yourself are the only person that knows

where this little girl’s body is, that you yourself have only

been there once, and if you get a snow on top of it you

yourself may be unable to find it. And, since we will be

going right past the area on the way into Des Moines, I

feel that we could stop and locate the body, that the

parents of this little girl should be entitled to a Christian

burial for the little girl who was snatched away from

them on Christrnas [E]ve and murdered. And I feel we

should stop and locate it on the way in rather than wait-

ing until morning and trying to come back out after a

snow storm and possibly not being able to find it at all.’”

430 U.S. at 392-93, 97 S. Ct. at 1236, 51 L. Ed. 2d at

432-33.

Not far from Des Moines the prisoner directed the police to the

body of the young girl.

25a

The evidence in question was admitted at Williams’ subse-

quent murder trial, and the jury returned a verdict of guilty.

Mr. Justice Stewart, in speaking for the majority, relied heavi-

ly on Massiah v. United States, 377 U.S. 201, 84S. Ct. 1199,

12 L. Ed. 2d 246 (1964), and ruled that Williams had been de-

nied the right to the assistance of counsel. A careful reading of

the majority opinion reveals that the key factor underlying this

conclusion was the detective’s admission that his “Christian

burial speech” was made “with the specific intent to elicit in-

criminating statements.” 430 U.S. at 403, 97S. Ct. at 1241,

51 L. Ed. 2d at 439. Justice Stewart continually stressed that

the detective deliberately and designedly set out to elicit infor-

mation from the prisoner. 430 U.S. at 399, 403, 405, 97S. Ct.

at 1239, 1240, 1241, 1243, 51 L. Ed. 2d at 436, 437, 439, 440.

Justices Powell and Marshall, in separate concurring opinions,

also stressed the intentional nature of the police conduct. 430

U.S. at 408, 412, 97S. Ct. at 1244, 1246, 51 L. Ed. 2d at 442,

445.

In contrast, there is nothing in the record before us which

suggests in any way that Patrolman Gleckman deliberately set

out to elicit incriminating statements from defendant. All the

evidence in the record is directly to the contrary.’ All of the

officers testified that Captain Leyden had specifically ordered

them not to question defendant. All agree that after defend-

ant requested an attorney, no one spoke to him, questioned

him, or directed their remarks to him in any way. Statements

volunteered by a suspect have never been thought to create

constitutional problems. Miranda v. Arizona, 384 U.S. at

478, 86S. Ct. at 1630, 16 L. Ed. 2d at 726; State v. Travis, 116

°The defendant did not testify or introduce any evidence during the voir

dire regarding the shotgun. Therefore, the only evidence in the record is the

uncontradicted testimony of all the police officers who were present when

the defendant was arrested and transported to the police station.

26a

R.I. 678, 360 A. 2d 548 (1976). Only the “interrogation” of a

suspect after he has asserted his rights or requested an attorney

is constitutionally impermissible. Id. While the dividing line

between the two may not always be clear, when the record ad-

duced in the Superior Court is measured against the criterion

set forth in Brewer concerning whether the police have de-

liberately and designedly set out to elicit information from the

suspect, it is clear that defendant was not being interrogated

when he overheard Gleckman’s conversation.

At the time of defendant’s arrest in January 1975, Patrol-

man Gleckman had been a member of the Providence Police

Department for just over a year. He could not have heard

about the Iowa captain’s impassioned exhortation because

Brewer was not published until some 2 years later, in March

1977. Once defendant expressed his choice of consulting with

an attorney, Officer Gleckman’s sole duty was to assist in the

transportation of the prisoner from Mt. Pleasant’s Chalkstone

Avenue to police headquarters in downtown Providence. In

the vernacular, Officer Gleckman was a “street cop.” His

beat often included the Pleasant View School area. There is

no question that Pleasant View is a city school which serves the

needs of the retarded or emotionally disturbed child. There is

no comparison between the Iowa detective’s intentional play-

ing upon the emotions of a prisoner and Patrolman

Gleckman’s off-hand reference to patrolman McKenna about

Pleasant View’s student body.

Even if I were to concede that defendant was “inter-

rogated,” I would not exclude the shotgun from evidence for,

in my opinion, defendant voluntarily and intelligently waived

his privilege against self-incrimination when he decided to

lead the police to the shotgun. At this waiver stage the instant

case loses any and all resemblance to the facts of Brewer v.

Williams. In Brewer there was no “break in the action” after

the subtle interrogation had commenced before Williams led

27a

the police to the body. As Justice Powell noted, there was no

evidence that the defendant voluntarily waived his rights, ex-

cept the fact that statements eventually were obtained. 430

U.S. at 411, 97S. Ct. at 1246, 51 L. Ed. 2d at 444, Powell, J.,

concurring.

The officer in charge of the early morning search for the in-

dividual who had held up the cab driver was Captain Leyden.

He, along with a dozen other officers, had been searching for

defendant since midnight because the cab driver, upon being

brought to police headquarters, saw defendant’s picture on a

“Wanted” poster and immediately identified him as his assail-

ant.

When defendant was arrested unarmed at 4:30 a.m., the

logical inference was that he had secreted the shotgun nearby.

The defendant was arrested about a block away from the

Pleasant View School, and within a matter of a few hours the

children would be making their way towards this institution.

When defendant requested an attorney, all questioning

ceased. And now defendant had returned to the scene and

“* indicated a willingness to pinpoint the location of the

dangerous weapon. Under the circumstances, what should

Captain Leyden have done? I submit he did the only thing he

reasonably could have done. The defendant was taken out of

the police car and for the fourth time that evening was given

the full panoply of constitutional protection due him. The

captain then asked defendant if he understood these rights and

received an affirmative answer. When defendant insisted on

locating the shotgun, Captain Leyden directed that the search

for the weapon begin. I would hold that the state has met its

heavy burden of establishing that defendant voluntarily,

knowingly, and intentionally relinquished his known rights.

See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed.

1461 (1938); Statev. Vargus, R.I. ,373A. 2d 150 (1977).

28a

The views expressed by the majority come perilously close to

fulfilling the worst fears of the four Brewer dissenters, who ex-

pressed concern that the majority in Brewer was really holdiny

that once a suspect has asserted his right not to talk without

the presence of an attorney, “it becomes legally impossible for

him to waive that right until he has seen an attorney.” 430

U.S. at 418-19, 97S. Ct. at 1249, 51 L. Ed. 2d at 449, Burger,

C.J., dissenting. In fact, Justice Stewart took pains to deny

this charge specifically and suggested that a valid waiver could

have been found had the Des Moines detective prefaced his re-

marks by telling Williams that he had a right to the presence of

a lawyer or otherwise made an effort to ascertain whether

Williams wished to relinquish that right. 430 U.S. at 405-06,

97 S. Ct. at 1243, 51 L. Ed. 2d at 440-41. That, I suggest, is

precisely what Captain Leyden did here. Justice Powell’s con-

curring opinion is more emphatic on this point. He found “no

justification” for the views of the Chief Justice:

“On the contrary, the opinion of the Court is explicitly

clear that the right to assistance of counsel may be

waived, after it has attached, without notice to or con-

sultation with counsel.” 430 U.S. at 413, 97 S. Ct. at

1246, 51 L. Ed. 2d at 445.

Despite these explicit assurances found in Brewer, the ma-

jority finds no waiver following Captain Leyden’s second ren-

dition of the Miranda warnings. The rationale for this failure

is based upon a somewhat novel interpretation of the “fruit of

the poisonous tree” doctrine. In discussing the “fruit of the

poisonous tree” concept, the United States Supreme Court has

specifically limited the extent to which prior illegal police con-

duct must be considered responsible for the securing of incrim-

inatory information.

29a

“We need not hold that all evidence is ‘fruit of the

poisonous tree’ simply because it would not have come to

light but for the illege! actions of the police. Rather, the

more apt question in such a case is ‘whether, granting

establishment of the primary illegality, the evidence to

which instant objection is made has been come at by ex-

ploitation of that illegality or instead by means sufficient-

ly distinguishable to be purged of the primary taint.’”

Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.

Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963); Common-

wealth v. Cunningham, 471 Pa. 577, 586, 370 A.2d 1172,

1176-77 (1977).

Even assuming Officer Gleckman’s concern about the Pleas-

ant View student population was in fact an artfully executed

interrogation, I believe the police did not “exploit” the pri-

mary illegality, but instead “purged” the primary taint by

taking the defendant out of the police car, placing him on the

street, reading him for the fourth time his Miranda rights, and

making sure he understood the consequences of his action. In

response the defendant told Captain Leyden that he did

understand what he was doing and then went out into the

nearby field and located his weapon for the police. If this fac-

tual pattern does not constitute a valid waiver of one’s fifth .

amendment rights, the worst fears of the Brewer dissenters

have now been realized.

30a

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS

KENT, Sc. SUPERIOR COURT

No. 75-333-C.A.

STATE OF RHODE ISLAND

vs INp. No. 75-8

THOMAS J. INNIS

HEARD Berore Mr. Justice SHEA

AND A JURY 31 Ocroser 1975

3 NOvEMBER 1975

4 NoveMBER 1975

5 NoveMBER 1975

6 NovEMBER 1975

7 NovEMBER 1975

10 NoveMBER 1975

11 NoveMBER 1975

12 NoveMBER 1975

25 NoveMBER 1975

Motion for New Trial and Sentencing

Appearances:

For the Dae... 656 cnn ccceddctteteene een Walter Stone

Por the Dedemaeh co.cc odccncettiecees Benedetto Cerilli

* bed * * * * * * *

3la

[15] Mr. Cermtur: Your Honor, I’d also make a motion for

an individual voir dire of the jury panel based on the fact that

this particular case has received a considerable amount of

publicity in the Kent County area, and in addition, Mr. Innis

himself has been the subject — or at least his name has been

mentioned in an article in the Providence Journal, front page,

in just the Summer of ’75.

THE Court: I certainly think that is a reasonable request

in view of the offense charged. The defendant’s motion for an

individual voir dire is granted.

Mr. Stone: I have no objection.

Mr. Cernitui: Your Honor, I’d also make a motion to se-

quester the witnesses.

Tue Court: The motion will be granted. Any further

motions to be handled today?

Mr. Ceritui: Your Honor, there is another motion which

we have discussed in chambers but I will put on the record at

this point, the motion to suppress the introduction of a sawed-

off shotgun, and it is my understanding that that motion will

be heard during the course of the trial with a voir dire.

[16] THe Court: Is there any objection to proceeding in

that way?

Mr. Stone: No objection on the part of the State.

Tue Court: Do you anticipate that this motion for sup-

pression would be a very extensive one? I am wondering

about interrupting the trial proceedings. The fact is that if we

took it beforehand, we may well be repeating a great deal of

testimony. While normally they are heard before trial, I have

no objection to hearing it at the time the situation arises.

Mr. Stone: ~ This doesn’t involve a confession as such, only

the possession related to the whereabouts of the shotgun.

Tue Court: It involves the Fourth Amendment Rights?

Mr. Stone: And I don’t expect there will be a lot of

witnesses on the part of the State.

32a

Mr. CeriLui: I don’t expect to produce any witnesses, your

Honor, at this point.

THE Court: All right. If there is no objection from either

side, we will handle it that way when the situation arises

during the trial.

* * * * * * * a *

[376] Mr. Stone: Would you like Mr. Aubin now or —

THE Court: No. There are two matters and we will take

one at a time.

Mr. Ceritu: If your Honor please, may I have a moment

to confer with my client?

Tue Court: Yes, you may.

Mr. Ceritui: Your Honor, if the Court please, I have dis-

cussed with Mr. Innis the possibility of taking the stand. I

have explained to him that for the purposes of this hearing, he

could take the stand and in fact it would not go before the

jury.

THE Court: That is correct.

Mr. Cenritit: However, at this time, after discussing the

pros and cons with Mr. Innis, Mr. Innis wishes not to take the

stand.

THE Court: Very well.

Mr. Ceritur: And which is his right under our constitu-

tion.

THE Court: Absolutely.

Mr. Ceritui: So, that the defense will not present any

witnesses at this particular time.

Tue Court: All right. Does the State rest [377] with

regard to this particular voir dire, Mr. Stone?

Mr. Stone: Yes, your Honor.

THE Court: And the defense rests?

Mr. Ceritur: Yes, your Honor.

33a

THE Court: I will hear argument.

(Argument presented by counsel)

THE Court: It is clear from the evidence that the evidence

presented contained some discrepancies as to who sat where in

the automobile; those discrepancies are not at all vital or

disturbing to the Court. The real issue is, did this defendant

have the benefit of his Miranda Warnings at the time he was

apprehended, at the time he was placed in the car for

transport to the police station, and at the time he returned ap-

parently volunteering to locate the weapon.

The Court is completely satisfied after hearing the police

witnesses testify that this defendant was repeatedly and com-

pletely advised of his Miranda rights. It is entirely under-

standable that a police officer not used to testifying, could

forget one of the phrases of the warnings when testifying.

When questioned, it came back to mind.

I would point out parenthetically that it is quite obvious to

the Court that these witnesses who testified this morning were

not rehearsed nor did they get together and [378] compare

notes before testifying. They have disagreed with each other

on unimportant particulars. That evidence impresses me as to

its credibility. I must note that.

When the request for counsel was made, first time, second

time, possibly third time, because there was the original of-

ficers and then Leyden: “I want an attorney”, the proper

thing happened. The defendant was placed in the car and

ordered transported to headquarters.

In the automobile, driving along Chalkstone Avenue, we

have three officers who are out at four in the morning, or

later, and have been prowling around searching for a weapon

which they had reason to believe was there. The weapon was

either loaded or with shells. It is in the area of a school where

when daylight arrives handicapped and retarded children will

be coming to the area. I think it is entirely understandable

34a

that they would voice their concern to each other. And I have

to say that I commend the defendant for responding to the

danger which, more than likely, he did not know of up until

that time. There is no reason for me to believe, and no evi-

dence on which I should conclude, that he was familiar with

the area and the type of facilities that were there. So the de-

fendant responded out of a very commendable concern to a

situation [379] that he became acquainted with. I commend

him for it. He responded and then said: “Turn around, take

me back and I will show you where the weapon is.”

It was a waiver, clearly, and on the basis of the evidence.

that I have heard, an intelligent waiver, of his right to remain

silent. And for whatever reason, whatever motivates people,

as long as it is not the result of threat or coercion, it is a waiver

for all purposes, and the weapon was found.

I find that the seizure of this weapon by the authorities, on

the basis of the evidence that I have heard and that I believe,

and the inferences that I draw from it, in no way violated the

defendant’s constitutional rights.

The defendant’s oral motion to suppress this weapon that

has been marked as State’s 41, is denied. The defendant’s ex-

ception is noted.

Mr. Stone: Is the Court ready for Mr. Aubin?

Tue Court: Yes. I would also state for the record, the

Court distinguishes the Massey case in that the situation there

was entirely different. The counsel had requested by name,

had responded by telephone, had spoken both to the defendant

and to the police, and I [380] found in that case that a waiver

had to be in the presence of counsel because that counsel had

all but entered an appearance in the case. The case of Poeple

against Arthur, I also distinguish, because in that case counsel

had appeared; not just a call for counsel. So that I distinguish

both of those cases.