Reply Brief — Rhode Island v. Innis

FOR ARGUMENT

Supreme Court, US.

FIED

OCT 19 1979

In the MICHAEL RODAK, JR., CLERK

Supreme Court of the United States.

Ocroser Term, 1978.

No. 78-1076.

STATE OF RHODE ISLAND,

PETITIONER,

THOMAS ]. INNIS,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE

STATE OF RHODE ISLAND.

Reply Brief for the Petitioner.

fr

Dennis J. Roserts II,

Attorney General, ¥

STEPHEN LICHATIN III,

Special Assistant Attorney General,

Chief, Appellate Division,

Providence County Courthouse,

Providence, Rhode Island 02903.

BATEMAN & SLADE, INC.

BOSTON , MASSACHUSETTS.

Table of Contents.

Argument ]

I. The rationales underlying Miranda v. Arizona 1

II. Miranda’s per se exclusionary rule should not

be extended — 5

Conclusion )

Table of Authorities Cited.

CASES.

Brewer v. Williams, 430 U.S. 387 (1977) 5, 6,9

Fare v. Michael C., ___ U.S. ___, 61 L. Ed. 2d 197 3

(1979) 7,8

Johnson v. Zerbst, 304 U.S. 458 (1938) 5, 7

Michigan v. Mosley, 423 U.S. 96 (1975) 2

Miranda v. Arizona, 384 U.S. 436 (1966) 1, 2, 3, 4,

BeAr 5, 6, 7, 8

North Carolina v. Butler, _._ U.S. ____, 60 L. Ed. 2d

286 (1979) r 7

State v. Innis, _.. R.I. ___., 391 A. 2d 1158 (1978) 3, 4,

5, 6

United States v. Washington, 431 U.S. 181 (1977) 4

CONSTITUTIONA PROVISIONS.

United States Constitution

Fourth Amendment 7n

Fifth Amendment 1,2,4

ii TABLE OF AUTHORITIES CITED.

MISCELLANEOUS.

Grano, Rhode Island v. Innis: A Need to Reconsider

the Constitutional Premises Underlying the Law of

Confessions, 17 Am. Crim. L. Rev. 1 (1979) 2,3, 4,5

Kamisar, Brewer v. Williams, Massiah, and Miranda:

What is “Interrogation”? When Does it Matter?,

67 Geo. L.J. 1 (1978) 3n

In the

Supreme Court of the United States.

OcrosBeR TERM, 1978.

No. 78-1076.

STATE OF RHODE ISLAND,

PETITIONER,

THOMAS J. INNIS,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE

STATE OF RHODE ISLAND.

Reply Brief for the Petitioner.

Argument.

I. RATIONALES UNDERLYING MIRANDA V. ARIZONA.

The Court in Miranda v. Arizona, 384 U.S. 436 (1966),

built its opinion on the foundation of the Fifth Amendment’s

interdiction of compulsory self-incrimination. However, the

Court tendered two rationales:

2

The first, by far the stronger in terms of providing consti-

tutional legitimacy, premised the holding upon the con-

clusion that custodial interrogation is inherently compel-

ling. . . . The second rationale, perhaps more persuasive

in its treatment of compulsion, viewed the warnings as

prophylactic safeguards to combat the “potentiality for

compulsion.”

The Court has undervalued the inherent compulsion ra-

tionale because it has been determined that a confession can be

voluntary in spite of a Miranda violation. See, e.g., Michigan

v. Mosley, 423 U.S. 96 (1975). It is by default that the

potentiality-for-compulsion rationale offers the Fifth Amend-

ment link to Miranda.

The State concedes that there is at least some potential for

compulsion in every citizen encounter with the police. “Un-

less Miranda is to apply to all such encounters, it should be ap-

plicable only when the potential for compulsion reaches some

legally significant threshold level.” Grano, supra at 44. The

teaching of Miranda is that at least stationhouse interrogation

is proscribed because of its potential for compulsion. The Mi-

randa Court, as the respondent has indicated, wrote of de-

fendants being “thrust into an unfamiliar atmosphere and run

through menacing police interrogation procedures.” Re-

spondent’s brief at 14; Miranda v. Arizona, supra at 457.

Custodial stationhouse questioning is the context in

which Miranda's parade of horribles is most likely to be

'Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional

Premises Underlying the Law of Confessions, 17 Am. Crim. L. Rev. 1, 42

(1979) (emphasis original). The petitioner is appreciative of Professor

Grano’s efforts in presenting this carefully reasoned analysis which substan-

tially furnished the content of its reply brief.

3

found. Indeed, as the Miranda Court observed, police

manuals suggest the interrogation room as the best place

to deprive the suspect of every psychological advantage.

At the opposite extreme, the parade of horribles is least

apparent when the police engage in general on-the-scene

questioning. The person questioned on-the-scene is not

cut-off from the outside world or thrust into an unfamil-

iar, police-dominated atmosphere. While the police in

such circumstances may engage in some feigned sym-

pathy, trickery, and even hostility, they obviously do not

have the opportunity to employ a menacing interrogation

process in which patience and perseverance will eventu-

ally prevail. Moreover, street questioning, unlike sta-

tionhouse questioning, rarely is conducted by a skilled in-

terrogator familiar with police manual techniques for

undermining resistance. Grano, supra at 44.

However, as Professor Kamisar has noted, a no-pressure situa-

tion is not mandated by Miranda.*

The crucial question in Innis is where to locate the case on

the scale of potential for compulsion. Thomas Innis was not

apprehended and thrust into a police vehicle “where his at-

tending officers wasted no time in inducing an ineulpatory

statement,” as the respondent has characterized the facts. Re-

spondent’s brief at 38. Rather, Innis was informed of his

rights, was not held incommunicado, and was _ neither

threatened nor placed in an environment coercive beyond that

inherent in any arrest. Certainly, any stress experienced by

the defendant during his short ride in the wagon was greater

than that which would be experienced during on the scene

*Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interro-

gation”? When Does it Matter?, 67 Geo. L. J. 1 (1978).

4

questioning. The facts indicate that Innis was seated for a few

minutes next to Patrolman Gleckman, who had been issued in-

structions not to question, intimidate, or coerce him in any

manner (A. 22-23, 38). While the defendant was arrested and

in custody under Miranda, he was not subjugated to the will of

experienced interrogators nor was what occurred the type of

relentless fear-producing situation which the Court found to

be inherently coercive in Miranda. While some police chican-

ery might have been possible in the minutes when the defend-

ant was seated next to the patrolman, the record does not sup-

port such a contention. The remarks in question were not

made with the intent to elicit a response from Innis. Neither

the Fifth Amendment nor Miranda “. . . requires the police,

upon arresting a suspect, to assume the role of contemplative

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

State v. Innis, __. R.I. ___, 391 A. 2d 1158, 1167 (1978)

(Kelleher & Joslin, JJ., dissenting).

The respondent has conceded that Miranda shields defend-

ants not from the pressure of custody but from the pressure of

custodial interrogation. Respondent’s brief at 14. Since cus-

tody alone does not produce enough stress to trigger Miranda’s

prerequisites, interrogation must “consist of something more

than verbal or nonverbal conduct designed or likely to elicit a

response.” Grano, supra at 46. The record does not support

the respondent’s argument that Innis was compelled to in-

criminate himself by leading the police to the gun. This Court

has asserted that “admissions of guilt by wrongdoers, if not

coerced, are inherently desirable.” United States v. Washing-

ton, 431 U.S. 181, 187 (1977).

All agree that after defendant requested an attorney, no

one spoke to him, questioned him, or directed their re-

marks to him in any way. Statements volunteered by a

suspect have never been thought to create constitutional

5

problems. State v. Innis, supra at 1171 (Kelleher &

Joslin, JJ., dissenting).

The question, then, is whether the need for prophylactic

tifth amendment protections in this context is great

enough to justify the cost of discarding a perfectly volun-

tary statement. Had Innis [simply] blurted out that he

wanted to return to the arrest scene to locate the gun, a

Miranda issue would not even be present. The applica-

tion of Miranda thus turns solely on the legal significance

of the officer’s remarks. Even if the “handicapped chil-

dren” remarks can fairly be viewed as a form of question-

ing, their significance for Miranda purposes should de-

pend upon the overall potential for compelling interroga-

tion. Grano, supra at 47.

The State respectfully submits that the conversation which oc-

curred in the police vehicle between the patrolmen and Innis’

subsequent volunteered statement are not tantamount to the

type of interrogation proscribed in Miranda.

II. Muranpa’s Per Se Exc.usionary RULE SHOULD

Not Be EXTENDED.

Even if the State were to concede that Innis was interro-

gated, the shotgun should not be excluded from evidence. The

facts in the case at bar establish that the defendant voluntari-

ly, knowingly, and intentionally relinquished his known

rights. See Johnson v. Zerbst, 304 U.S. 458 (1938). At this

critical waiver stage, Innis loses all resemblance to Brewer v.

Williams, 430 U.S. 387 (1977), contrary to the argument ad-

vanced by the respondent. Respondent’s brief at 21-24. In

6

Williams, there was no “break in the action” after Captain

Leaming delivered his “Christian burial speech” and before

the defendant led him to the child’s body. The Court was

careful to note that there was no evidence in the case that

Williams voluntarily waived his rights, except for the fact that

statements eventually were obtained. Id. at 41.

When defendant [Innis] 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? [The State submits that]. . . 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 pro-

tection due him. The captain then asked defendant if he

understood these rights and received an affirmative

answer. When defendant insisted on locating the shot-

gun, Captain Leyden directed that the search for the

weapon begin. State v. Innis, supra at 1171-1172 (Kelle-

her & Joslin, JJ., dissenting).

The State submits that Innis voluntarily and intelligently

waived his right to counsel. Miranda held that an express

statement can constitute a waiver, and that silence alone after

such warnings cannot do so.

————

7

That does not mean that the defendant’s silence, coupled

with an understanding of his rights and a course of con-

duct indicating waiver, may never support a conclusion

that a defendant has waived his rights. The courts must

presume that a defendant did not waive his rights; the

prosecution’s burden is great; but in at least some cases

waiver can be clearly inferred from the actions and words

of the person interrogated. North Carolina v. Butler,

—___._ U.S. ___, 60 L. Ed. 2d 286, 292 (1979).

This Court indicated in Butler that an explicit statement of

waiver is not invariably necessary to support a finding that the

defendant waived the right to counsel guaranteed by Miranda.

Mr. Justice Stewart opined that “[e]ven when the right so fun-

damental as that to counsel at trial is involved, the question of

waiver must be determined on ‘the particular facts and cir-

cumstances surrounding that case, including the background,

experience, and conduct of the accused,’” id. at 293, and

relied on Johnson v. Zerbst, supra, for support. The Court re-

jected the wooden per se rule applied by the North Carolina

court and saw no reason to discard the totality-of-circum-

stances standard mandated by the requirements of federal

organic law.°

In Fare v. Michael C., U.S. ___, 61 L. Ed. 2d 197,

212 (1979), this Court reiterated that the totality-of-circum-

stances test applies once Miranda’s literal commands have

been met. Further, “[t]his totality of the circumstances ap-

3See also Fare v. Michael C., ___. U.S. ___, 61 L. Ed. 2d 197 (1979),

where the Court again demonstrated its reluctance to extend exclusionary

rules carried over from the Fourth Amendment to the per se rule which en-

forces Miranda. In Fare, the Court recognized the lawyer’s essential role in

the criminal justice system, but reversed a California Supreme Court judg-

ment that would have extended Miranda's per se exclusionary rule.

8

proach is adequate to determine whether there has been a

waiver even where interrogation of juveniles is involved.”

Ibid.

The totality approach permits — indeed, it mandates —

inquiry into all the circumstances surrounding the inter-

rogation. This includes evaluation of . . . [the defend-

ant’s] age, experience, education, background, and intel-

ligence, and into [sic] whether he has the capacity to un-

derstand the warnings given him, the nature of his Fifth

Amendment rights, and the consequences of waiving

those rights. Ibid.

The respondent claims that Innis did not waive his rights

and relies on a rigid per se analysis to support his argument.

The record does not support such a conclusion under the to-

tality-of-circumstances approach. As noted, the police took

care to inform the respondent of his rights and to ensure that

he understood them. The officers neither intimidated nor

threatened Innis in any way. Their conduct was free from the

parade of horribles that concerned the Court in Miranda.

When Innis requested the assistance of counsel, the police did

what they should have done under the circumstances; no one

spoke to him, questioned him, or directed his conversation to

him in any way., The State submits that statements’ volun-

teered by the suspect do not create constitutional problems.

Further, the record indicates that the police did not attempt to

exploit Innis’ offer to lead them to the gun. Rather, he was

taken out of the police car and again read the Miranda warn-

ings on the street to ensure that he understood the conse-

quences of his deliberate comments. Innis advised Captain

Leyden that he understood what he was doing. It is clear that

he spoke and acted freely, with full comprehension of his con-

9

stitutional rights. If the Court were to hold otherwise, the

worst fears of the Brewer dissenters would be realized and the

result would be one which “. . . ought to be intolerable in any

society which purports to call itself an organized society.”

Brewer v. Williams, supra at 415 (Burger, C.J., dissenting).

Conclusion.

For the reasons stated in its brief and in this reply brief, the

State respectfully requests this Court to reverse the judgment

of the Supreme Court of Rhode Island.

Respectfully submitted,

DENNIS J. ROBERTS II,

Attorney General,

STEPHEN LICHATIN III,

Special Assistant Attorney General,

Chief, Appellate Division,

Providence County Courthouse,

Providence, Rhode Island 02903.