Opposition — Rhode Island v. Innis

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saat Suprame Court, U. L7

FILED

FEB 2 1979

In the | MicHAEL RODAK, JR., CLERR

Supreme Court of the United States.

- ——

OcrTosBER TERM, 1978.

No. 78-1076.

STATE OF RHODE ISLAND,

PETITIONER,

THOMAS J. INNIS,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF RHODE ISLAND.

Response in Opposition to Petition for

Writ of Certiorari.

WILLIAM F. REILLy,

Public Defender,

BARBARA Hurst,

Chief Appellate Attorney,

Joun A. MacFapyen III,

Assistant Public Defender,

Appellate Division,

Office of the Public Defender,

250 Benefit Street,

Providence, Rhode Island 02903.

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Question presented

Constitutional provisions involved

Statement of the case

Statement of facts

Reasons for not granting the writ

I. The petition for writ of certiorari is premised

upon a factual contention which was rejected

by a majority of the Supreme Court of Rhode

Island

II. The decision of the Supreme Court of Rhode

Island has not been shown to conflict with hold-

ings of other state courts or of the lower federal

courts and this Court’s further guidance in this

area is not required

III. The Supreme Court of Rhode Island applied

settled principles of federal constitutional law

to the facts as it found them

Conclusion

Table of Authorities Cited.

CASEs.

Blackburn v. Alabama, 361 U.S. i99 (1960)

Brewer v. Williams, 430 U.S. 387 (1977)

owns NON NY =

ii TABLE OF AUTHORITIES CITED.

Harrison v. United States, 392 U.S. 219 (1968) g

Johnson v. Zerbst, 304 U.S. 456 (1938) 9 In the

Massachusetts v. White, ___. U.S. ___, 58 ~. Ed. 2d | °

510 (178), toh. den, US, (No. 77-1588, Supreme Court of the United States.

January 22, 1979) 10

Michigan v. Mosley, 423 U.S. 96 (1975) 5, 7, 8,9 _ Ocroser Term, 1978.

Michigan v. Tucker, 417 U.S. 433 (1974) 10

Miranda v. Arizona, 384 U.S. 436 (1966) 3, 4, 5, 7, 8, 9, 10 No. 78-1076.

State v. Innis, 391 A. 2d 1158 (R.I. 1978) 1, 6, 7, 10

Wong Sun v. United States, 371 U.S. 471 (1963) ) STATE 7 RHODE ISLAND,

ETITIONER,

CONSTITUTIONAL PROVISIONS. v.

United States Constitution THOMAS J. INNIS,

Fifth Amendment 2,8, 9, 10 RESPONDENT.

Fourteenth Amendment 2

‘

Rhode Island Constitution, Art. I, § 13

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF RHODE ISLAND.

Response in Opposition to Petition for .

Writ of Certiorari.

Opinion Below.

The opinion of the Supreme Court of Rhode Island is

reported as State v. Innis, 391 A. 2d 1158 (R.I. 1978), and is

reprinted in the appendix (pp. la-29a) to the petition for cer-

tiorari.

Jurisdiction.

The respondent agrees with the statement of jurisdiction as

it appears in the petition for certiorari.

Question Presented.

Whether as a matter of fact the Providence police delib-

erately attempted to elicit incriminating information from the

respondent after he had requested to see a lawyer and

whether, having requested assistance of counsel, the respond-

ent waived his constitutional protections prior to divulging the

information later used against him at trial.

Constitutional Provisions Involved.

The respondent agrees with the denotation of constitutional

provisions appearing in the petition for certiorari (the Fifth

and Fourteenth Amendments to the Constitution of the United

States).

Statement of the Case.

The respondent agrees with the statement of prior pro-

ceedings as reported in the petition for certiorari.

Statement of Facts.

At 4:30 in the morning, on January 17, 1975, the respond-

ent, Thomas J. Innis, was arrested and handcuffed by the

Providence police. After being three times advised of his

Miranda rights, and at least once stating that he understood

these rights, Mr. Innis requested to see an attorney. Captain

Leyden of the Providence police then ordered three of his

subordinates, Officers Gleckman, McKenna, and Williams, to

place the respondent in the rear of a caged four-door sedan

and to take him to the Central Station. He further directed

these officers not to question Mr. Innis or to intimidate or

coerce him in any way.

The three officers disagreed in their testimony as to whether

Officer Gleckman drove the vehicle or whether he was in the

back seat with the respondent. Whatever the seating ar-

rangements, it is undisputed that, at some point during the

rapidly aborted ride to the Central Station, Officer Gleckman

made a number of remarks, allegedly addressed to Officer

McKenna, which he summarized as follows:

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.

His brother officers expanded on some of the details of Of-

ficer Gleckman’s statements and their responses. Officer

‘McKenna _ indicated that he answered. Gleckman with

something to the effect that,

we should, you know, continue to search for the weapon

and try to find it.

Officer Williams remembered Gleckman as saying,

It would be too bad if the little — I believe he said a girl

— would pick up the gun, maybe kill herself.

The respondent heard all of the remarks summarized in the

above testimony. While the precise language and extent of

Officer Gleckman’s comments cannot be gleaned from the

record, all three officers stated that no direct questions were

addressed to Mr. Innis and that they had traveled a little less

than a mile when the respondent burst out with,

Stop the car. Turn around and I'll show you where the

gun is.

Mr. Innis did not testify at all.

On returning to the scene of the arrest, Captain Leyden

again gave the respondent his Miranda warnings, and Mr. In-

nis agreed to lead the officers to the shotgun. Concluding that

the “real issue [was], did this defendant have the benefit of his

Miranda Warnings [sic]” (Pet. App. 33a), the trial justice

found that Mr. Innis had been advised of his rights and that he

had waived them. The State was then permitted to introduce

into evidence the shotgun, the statement and police testimony

regarding the circumstances of its finding. Following his con-

viction for robbery, kidnapping and felony murder, the

respondent appealed to the Supreme Court of Rhode Island.

On appeal Mr. Innis raised seven issues, five of which were

not reached by the court, including a claim that the motion to

suppress should have been granted under R.I. Const. Art. I,

§ 13. Instead, relying primarily on Miranda v. Arizona, 384

U.S. 436 (1966), and a number of Rhode Island decisions con-

struing that opinion, the court concluded that Officer

Gleckman impermissibly attempted to elicit incriminating in-

formation from the respondent imnmediately after Mr. Innis

had invoked his right to counsel, that the respondent's in-

culpatory response was the product of “subtle compulsion,”

and that discovery of the shotgun was the direct fruit of these

illegal endeavors. The court held that the shotgun and the

statement leading to its discovery were improperly admitted;

it sustained the respondent’s appeal on this ground and

remanded the case for a new trial.

Reasons for Not Granting the Writ.

The respondent argues the following reasons why the writ of

certiorari should not be issued:

1. The point of dispute between the petitioner and the

Supreme Court of Rhode Island is one of fact and not one of

federal constitutional law. :

2. The state Supreme Court’s decision is not in conflict with

federal cases or those from other state jurisdictions; moreover,

the petition does not indicate that the lower federal courts or

the state courts are having difficulty applying the pro-

nouncements of this Court to similar cases.

3. The decision of the Supreme Court of Rhode Island is

based on a routine rendition of the standards laid down in

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

Mosley, 423 U.S. 96 (1975).

I. THe PetiTIion For Writ oF CERTIORARI IS PREMISED UPON A

FACTUAL CONTENTION WHICH WAS REJECTED BY A MAJORITY

OF THE SUPREME Court OF RHODE ISLAND.

The principal issue in this case is factual and not legal in

nature. The State of Rhode Island argues to this court,

just as it argued to the State Supreme Court, that Officer

Gleckman’s comments were but casual conversation not in-

tended for the respondent’s ears. Mr. Innis contends, ‘as he has

always contended, that Officer Gleckman’s comments were a

deliberate attempt to elicit incriminating information from an

exhausted suspect, arrested at 4:30 in the morning and con-

fined in a small space with three of his captors. On the record

below, which contained no more than a synopsis of the inter-

change between the three officers, the factual question

presented to the Supreme Court of Rhode Island was admit-

tedly a difficult one. It was resolved, however, against the

State with a majority finding that Thomas Innis unearthed the

shotgun as a result of “subtle compulsion” engendered by

remarks deliberately calculated to produce an inculpatory

response. State v. Innis, supra, at 1162, 1163 (Pet. App. 7a,

9a). Two justices dissented, not because they disagreed with

the majority’s statement of law, but because they could not ac-

cept its reading of the facts.

The petitioner nevertheless characterizes the decision below

as holding that a police officer’s innocent observation,

overheard by a suspect in custody who has requested the

assistance of counsel, renders inadmissible a later voluntary

act of self-incrimination (Pet., p. 8). Moreover, despite four

pages in the majority opinion discussing the question whether

in fact the respondent waived his constitutional protections

and ultimately concluding that he did not, the petitioner

nevertheless claims that the court precluded waiver as a mat-

ter of federal constitutional law (Pet., p. 8) and even that it

mandated suppression “in spite of [an] affirmative waiver of

these rights” (Pet., p. 10). Only by thus replacing the majori-

ty’s findings of fact with its own view of what happened on

January 17, 1975, can the petitioner suggest to this Court that

Rhode Island has adopted a per se rule of exclusion once a

suspect invokes his constitutional protections. Nowhere does

the majority opinion suggest that an innocent remark by a

police officer constitutes impermissible interrogation, but only

that Officer Gleckman’s remarks were not innocent. Nowhere

does the majority hold that the respondent could not have

waived his constitutional protections, but only that he did not.

II. THe DECISION OF THE SUPREME Court OF RHODE ISLAND

HAS NOT BEEN SHOWN TO CONFLICT WITH HOLDINGS OF

OTHER STATE COurTS OR OF THE LOWER FEDERAL CourTS AND

THIS Court’s FURTHER GUIDANCE IN THIS AREA IS Not ReE-

QUIRED.

The petition alleges that the holding of State v. Innis, 391

A. 2d 1158 (R.I. 1978), is in conflict with other state and

federal decisions (Pet., p. 7). The petitioner cites no other

state or lower federal court cases in support of this assertion.

There is no reason to believe that state courts or lower federal

courts are having difficulty applying the teachings of Miranda

v. Arizona, 384 U.S. 436 (1966), and Michigan v. Mosley, 423

U.S. 96 (1975), to various fact situations or that they require

this Court’s intercession to resolve disputes of law. Further,

there are no disputes of law involved in this case, as it called

only for the application of settled principles in a somewhat

unusual factual context which is unlikely to arise again. Only

by mischaracterizing the decision of the State Supreme Court

can the petitioner demonstrate a misapplication of this Court’s

prior decisions to the Innis facts: As explained infra, the State

Supreme Court did not even intimate that a suspect in Innis’

circumstances could not waive his Fifth Amendment privilege

after invoking a right to counsel; the court expressly and clear-

ly found only that the facts as adduced at trial did not sustain

the government’s burden of proving waiver in this particular

case. The standard used to determine waiver was correct and

does not conflict with decisions of this Court or of other courts.

III. THe SuprREME Court or RHODE IsLAND APPLIED SETTLED

PRINCIPLES OF FEDERAL CONSTITUTIONAL LAW TO THE

Facts AS IT FouNpD THEM.

Once it is accepted that Officer Gleckman deliberately

elicited an inculpatory response from the respondent, the deci-

sion below becomes nothing more than a routine application

of the principles enunciated in Miranda v. Arizona, 384 U.S.

436 (1966), and later refined in Michigan v. Mosley, 423 U.S.

96 (1975). Miranda holds that:

If the individual states that he wants an attorney, the in-

terrogation must cease until an attorney is present.

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-

pointed counsel.

Miranda v. Arizona, supra, at 474-475. “Interrogation”

within the meaning of Miranda cannot be limited to sentences

addressed to the suspect which end with question marks. The

, 9

term clearly encompasses any deliberate verbal attempt to

elicit incriminating information by identifiable law enforce-

ment officers. Brewer v. Williams, 430 U.S. 387 (1977).

Where Officer Gleckman began his calculated remarks within

minutes of the respondent’s invocation of his right to counsel,

in no sense did the police “scrupulously honor” his constitu-

tional protections as is required by Michigan v. Mosley, 423

U.S. 96, 104 (1975). Moreover, Miranda and Mosley aside,

the Supreme Court of Rhode Island concluded as a matter of

fact that the defendant’s inculpatory behavior was not volun-

tary, but rather was subtly compelled by Officer Gleckman’s

comments. Blackburn v. Alabama, 361 U.S. 199, 206 (1960).

Nor, as the petitioner argues, did the Supreme Court of

Rhode Island hold that the respondent could not waive his

rights having once invoked them. It held only that on the facts

of the instant case the State had not satisfied its heavy burden

of establishing a waiver of a fundamental constitutional right.

Miranda v. Arizona, supra, at 444; Johnson v. Zerbst, 304

U.S. 458, 464 (1938).

In sum, nothing in the opinion suggests a deviation from or

an expansion of any federal constitutional standard. The

Supreme Court of Rhode Island merely applied settled prin-

ciples of law to a factual predicate with which the State con-

tinues to disagree.

As to suppression of the shotgun, the assertion by the peti-

tioner that this Court has never condoned “extension” of the ra-

tionale of Wong Sun v. United States, 371 U.S. 471 (1963), toa

Fifth Amendment case to exclude derivative evidence is incor-

rect and reveals a misunderstanding of this Court’s pro-

nouncements. This Court has applied a “fruits” exclusionary

rule to evidence obtained through exploitation of an unlawéul

confession, Harrison v. United States, 392 U.S. 219, 222, 226

(1968), and has recently reaffirmed the theoretical appro-

priateness of this doctrine in a Fifth Amendment context.

Michigan v. Tucker, 417 U.S. 433, 447 (1974) (“In a proper

case this rationale [deterrence of improper police conduct by

exclusion of derivative evidence] would seem applicable to the

Fifth Amendment context as well.”). See Massachusetts v.

White, ___. U.S. ___., 58 L. Ed. 2d 519 (1978), reh. den.

____. U.S. ____ (No. 77-1388, January 22, 1979). The State’s

reliance on the holding of Michigan v. Tucker, supra, is mis-

placed; the case at bar does not involve good faith police ac-

tion with an “inadvertent disregard” of the prophylactic

warnings required by Miranda v. Arizona, 384 U.S. 436

(1966), but rather police remarks constituting a “highly im-

proper” subjection of the respondent to “subtle compulsion.”

State v. Innis, supra at 1163, 1162 (Pet. App. 9a, 7a). Unlike

the situation in Michigan v. Tucker, supra,

[t]his is not a case where a defendant voluntarily con-

fesses to a crime or admits to incriminating evidence on

his own.

State v. Innis, supra at 1163 (Pet. App 9a).

Finally, this case is different from most others in that the

“derivative” evidence was the precise object of the improper

police questioning; the inculpatory admission was only the

respondent’s offer to lead them to the weapon. The shotgun

was thus more of a primary product of the illegal interrogation

than an incidental, unanticipated result of a full confession.

Conclusion.

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

tiorari should not be granted.

Respectfully submitted,

WILLIAM F. REILLY,

_ Public Defender,

BARBARA HURST,