Amicus Brief — Rhode Island v. Innis

§

In the Supreme Court of t

United States

> October Term, 1978

No. 78-1076

STATE OF RHODE ISLAND,

Petitioner,

v.

THOMAS J. INNIS,

ON

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

CF RHODE ISLAND

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Ono"

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General - Criminal Division

WILLIAM E. JAMES,

Sr. Assistant Attorney General

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2182

Attorneys for Amicus Curiae

Westside Law Publishers Santa Monica, California 213/451-1714

CONSTI nT oe ee ee ee ae a ee ee a a ee ee

TOPICAL INDEX

Page

Interest of Amicus Curiae | |

Introduction _—_—_. Foes 3

Summary of Argument | 5

Argument

I

Miranda Does Not Require A Per Se Exclusion Of

Statements Of An Accused In Custody Who, On

Being Advised Of His Rights, Invokes The Right To

Counsel And Thereafter Voluntarily And Knowingly

Waives That Right 7

Il.

The Conversation Between Patrolmen Gleckman

And McKenna In The Vehicle Did Not Constitute

Interrogation Of Innis Under Miranda And The Fifth

Amendment And His Voluntary Statement Consti-

tuted A Waiver Of Any Previous Invocation Of The

Right To Counsel 16

Conclusion 22

TABLE OF AUTHORITIES

Cases Page

Battle v. State (Fla. 1976) 338 So.2d 1107 14

Berryhill v. Rickets (Ga. 1978) 249 S.E.2d 197 14

Biddy v. Diamond (C.A. Sth Cir. 1975) 516 F.2d

118 cert. den. (1976) 425 U.S. 950 [96 S.Ct.

1724, 48 L.Ea.2d 194 13

Brewer v. Williams (1977) 430 U.S. 387 2, 6, 10,

13, 16, 17, 18, 19

Brown v. Illinois (1975) 422 U.S. 590 21

California v. Stewart, No. 584, 384 U.S. 436 2

Com. v. Myers (Pa. 1978) 392 A.2d 685 15

Com. v. Peoples (Pa. 1978) 394 A.2d 956 15

Com. v. Santa (Mass. 1978) 376.N.E.2d 866 15

Com. v. Watkins (Mass. 1978) 379 N.E.2d 104015

Couglon v. United States (C.A. 5th Cir, 1968) 391

F.2d 371, cert. den. (1968) 393 U.S. 870[C.T.

159, 21 L.Ed.2d 139] 13

Ellerba v. State (Md. 1979) 398 A.2d 1250 14

Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct.

1758, 1764; 12 L.Ed.2d 1977 9

Faretta v. California (1975) 422 U.S. 806 15

Frazier v. Cupp (1969) 394 U.S. 731 19

Kirby v. Illinois (1972) 406 U.S. 682 16

Korn v. State (Ind. 1978) 37° N.E.2d 444 14

Lamb v. Commonwealth(Va. 19°) 227 S.E. 2d 737

15

Lee v. State (Okla. 1977) 560 P.2d 226 15

Lofton v. State (Ind. 1978) 378 N.E.2d 834 14

McPherson v. State (Tenn. 1978) 562 S.W.2d210 15

Massiah v. United States (1964) 377 U.S. 201 17

Michigan v. Mosley (1975) 423 U.S. 96, S.Ct. 321

46 L.Ed.2d 313 (1951) 6, 7, 8,

10, 11, 12, 14

Michigan v. Tucker (1974) 417 U.S. 433 8

Miranda v. Arizona( 1966) 384 U.S. 436 ee Se

7, 8,9, 10, 11, 12, 13, 14, 15,

16, 17, 18, 19, 20, 21, 22, 23

Moore v. Wolff(C.A. 8th Cir. 1974) 495 F.2d 35 13

North Carolina v. Butler, ~ U.S... [47 Law

Week 4454] 20

Oregon v. Mathiason (1977) 429 U.S. 492 18

People v. Parker (Mich. 1978) 269 N.W.2d 635 15

People v. Young (Ill. 1978) 376 N.E.2d 739 14

Schilling v. State (Wis. 1978) 271 N.W.2d 631 15

State v. Boggs, 16 Wash. App. 682 P.2d 11 (1977) 12

State v. Dominick (La. 1978) 354 So. 2d 1316 14

State v. Greene, 572 P.2d 935 (N.M. 1977) 1]

State v. Hohman (Vt. 1978) 392 A.2d 935 15

State v. Innis (R.I. 1978) 391 App.2d 1158 3, 5, 16

State v. Kellogg (lowa 1978) 263 N.W.2d 539 14

State v. Moore, 202 N.W.2d 740 (Neb. 1972) 15

State v. Olds (Mo. 1978) 569 S.W.2d 745 15

State v. Pendergrass (S.C. 1977) 239 S.E.2d 750 15

State v. Steelman (Ariz. Sup. Ct. 1978) 585. P.2d

1213 l4

Steele V. Johnson (Ore. 1978) 586 P.2d 811 15

United States v. Cobbs (C.A. 3rd Cir. 1973) 481

F.2d 196, cert. den. (1973) 414 U.S. 980 [94

S.Ct. 218, 38 L.Ed.2d 224] 13

United States v. Collins (C.A. 2d Cir. 1972) 462

F.2d 792 19

United States ex. rel. Henna v. Fike (C.A. 7th Cir.

1977) 563 F.2d 809 19

United States v. Grant (C.A. 4th Cir. 1977) 549

F.2d 942 13

United States v. Flores Calvillo(C.A. 9th Cir. 1978)

571 F.2d 512 14

iv

United States v. Hauck (C.A. 8th Cir. 1978) 586

F.2d 1296 13, 19

United States v. Hodge (C.A. Sth Cir. 1973) 487

F.2d 945 13

United States v. Pheaster (C.A. 9th Cir. 1976) 544

F.2d 353 cert. den. (1977) 429 U.S. 1099 12

United States v. Rieves (C.A. Sth Cir. 1978) 584

F.2u. 740 13

United States v. Rodriquez - Gastelum(C.A. 9th Cir.

1978) 569 F.2d 482 cert. den. (1971) 436 U.S.

919 14

Williams v. State (Tex. 1978) 566 S.W.2d 919 15

Wong Sun v. United States (1963) 371 U.S. 471 921

Constitutions

U.S. Constitution Fourth Amendment 21

U.S. Consititution Fifth Amendment . G7, 2-56

U.S. Constitution Sixth Amendment 2, 6,

10, 16, 17

1S. Constitution Fourteenth Amendment 10

Rules

Rule 42(4) of the Rules of the Supreme Court l

Miscellaneous

Ballentine Law Dictionary (3rd Ed.) 18

Webster's New International Dictionary (Second

Edition, Unabridged) 18

In the Supreme Court of the

United States

October Term, 1978

No. 78-1076

STATE OF RHODE ISLAND,

Petitioner,

v.

THOMAS J. INNIS,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF RHODE ISLAND

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The State of California files this amicus brief pursuant

to the provisions of Rule 42(4) of the Rules of the Supreme

Court of the United States.

The State of California has an interest in the resolution

of the questions presented to this Honorable Court for

review and in the scope of the rules promulgated in

Miranda vy. Arizona (1966) 384 U.S. 436 in aid of the

provisions of the Fifth Amendment to the United States

Constitution that no person “‘shall be compelled in any

criminal case to be a witness against himself.”

California appeared as a party before the Court in one of

the companion cases to Miranda (California v. Stewart,

No. 584, 384 U.S. 436, 497), and appearances have been

made as a party and as amicus in cases raising Miranda

issues before this Court since 1966. California joined with

others in an amicus brief in Brewer v. Williams (1977)

430 U.S. 387, urging that the procedural ruling in

Miranda be re-examined and overruled. As observed by

Mr. Justice Blackmun, dissenting (p. 438), the issue did

not have to be considered in that case. It is acknowledged

that the same may be true in the instant case.

However, California is concerned with the resolution of

the question, now ripe for decision, whether Miranda

requires a per se rule of exclusion of all statements of a

suspect in custody, who after receiving the warnings and

invoking the right to counsel, thereafter knowingly and

voluntarily waives the right and makes incriminating

admissions.

Amicus is also concerned with the “expansion”’ of the

concept of “interrogation” as that term was used in

Miranda and with the application of the Sixth Amend-

ment requirements as to counsel from Brewer v. Williams,

supra.

The first issue that will be addressed by amicus will be

the matter raised in the dissent in the instant case that,

‘The views expressed by the majority come

perilously close to fulfilling the worst fears of the

four Brewer dissenters, who expressed concern

that the majority in Brewer was really holding

that once a suspect has asserted his right not to

talk without the presence of an attorney, ‘/?

becomes legally impossible for him to waive

that right until he has seen anattorney.’. . . ”

(Emphasis added; State v. Innis (R.I. 1978) 391

App.2d 1158 at p. 1172.)

INTRODUCTION

Respondent, Thomas J. Innis, was found guilty after a

jury trial of murder in the first degree, kidnapping and

robbery. The matier is before this Honorable Court on the

granting of the petition of the State of Rhode Island

following a 3-2 decision of the Supreme Court of Rhode

Island vacating tne judgments of conviction arfd remand-

ing the matter to the Superior Court for retrial.

The facts necessary to resolution of the constitutional

questions presented in this case are not in serious dispute

and amicus will rely on the statement contained in the

Petitioner’s Opening Brief, with record references.

The body of the victim, one John Mulvaney, a cab

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

Island on January 16, 1975. Death had resulted from a

shotgun blast to the back of the head.

Innis became a suspect and the police were informed

that he was seen in an area of Providence carrying a

sawed-off shotgun. A search of the area began.

Patrolman Robert M. Lovell of the Providence Police

Department apprehended Innis in the early morning of

January 17, 1975, at about 4:30 a.m.

Lovell placed respondent Innis under arrest and ad-

vised him of his constitutional rights pursuant to Miranda.

Thereafter Sergeant Francis 5. Sears arrived at the

scene of the arrest and also gave Innis his Miranda

warnings.

In response to a call that respondent had been appre-

hended Captain John J. Leyden arrived and Innis was

4

again advised of his rights.

Following the Captain’s warning Innis stated that he

wanted an attorney.

The Captain then directed three officers, Gleckman,

McKenna and Williams, to place Innis in the caged wagon

and transport him to the central station.

The Captain also directed them not to question the

defendant or intimidate or coerce him in any way.

While en route to the station Patrolman Gleckman, who

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

conversation with Patrolman McKenna. Innis could hear

the conversation within the vehicle.

Gleckman told McKenna that there was a school for

handicapped children in the area of the search for the

shotgun and he expressed fear that one of the children

might find the gun and be injured.

Gleckman did not address Innis and he was not

questioned in any way.

At this point Innis said, ““Stop, turn around, I'll show

you where it is.”

McKenna then got on the “mike’’ and told the captain

that they were returning and that Innis was going to show

them where the weapon was.

The vehicle had traveled less than a mile and they

returned to the arrest scene within minutes of leaving.

When Innis alighted from the wagon Captain Leyden

again advised him of his rights and Innis expressed his

understanding of those rights but that he wanted to show

them where the weapon was because of the school that was

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

the wagon and all cars proceeded to a 1icarby field and the

5

Shotgun, which was the subject of the motion for suppres-

sion, was located.

The defendant did not testify at the voir dire and the

facts are not disputed.

The trial judge ruled that the shotgun was admissible.

The majority of the Rhode Island Supreme Court held

that Innis had exercised his Miranda right to counsel and

that Gleckman’s statement to McKenna constituted “‘in-

terrogation” without a valid waiver of this right and that

the weapon should have been suppressed.

SUMMARY OF ARGUMENT

In holding that the shotgun received in evidence in this

robbery-murder case must be suppressed, the Rhode

Island Supreme Court, by a 3-2 majority, in effect held

that when a suspect in custody, after receiving Miranda

warnings a number of times, asserts “‘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.” (State v. Innis, supra, at p. 1172.)

Amicus urges that Miranda does not set forth any such

judicial straitjacket on an informed suspect’s right to

change his mind for whatever purpose satisfies his inter-

ests, and free of compulsion, to voluntarily, intentionally

and knowingly waive that right without the presence of an

attorney.

In setting forth such a per se rule the holding below

constitutes an unwarranted extension of the Miranda

requirements and is contrary to the majority of the cases,

federal and state, that have had recent occasion to

consider the issue. To create such an inflexible rule would

go beyond the requirements of the Fifth Amendment and

the “totality of circumstances” approach to waiver ques-

6

tions. In this case, without any suggestion of coercion, the

respondent voluntarily chose to speak and to tell the

officers to turn around, that he would show them where to

find the wea‘yon.

This constitutes a knowing and voluntary waiver of the

rights of which Innis had recently been advised a number

of times, hy was aware that his wishes in this regard would

be scrupulcusly respected and that he did not have to

speak. Under the facts and circumstances of this case,

respondent waived his right to the presence of counsel

when he spoke voluntarily and then expressly when again

(for a fourth time) Captain Leyden advised him of his

rights and he expressed his understanding of those rights

and indicated that he wanted to show the officers where the

weapon was located.

The Rhode Island Supreme Court was also in error in

holding that the conversation between Officers Gleckman

and McKenna constituted “‘interrogation”’ of respondent

and in relying on the Sixth Amendment case of Brewer v.

Williams, supra, 430 U.S. 387, for the rule that such

conversation, not directed to respondent and without any

_ intent to elicit incriminating statements from the accused,

was violative of this Court’s decision in Miranda.

The prophylactic rules announced in Miranda, repre-

senting a careful accomodation of the rights of the

accused and the reasonable and legitimate needs of law

enforcement would be, by such a rule as announced by the

Rhode Island Supreme Court, transformed into “‘wholly

irrational obstacles to legitimate police investigative activ-

ity, and deprive suspects of an opportunity to make

informed and intelligent assessments of their interests,”

. (Michigan v. Mosley (1975) 423 U.S. 96, 102.)

The trial court correctly ruled that the sawed-off

shotgun was admissible and the Rhode Island Supreme

Court was in error in holding to the contrary and its

judgments should be reversed.

ARGUMENT «a

I.

MIRANDA DOES NOT REQUIRE A PER SE

EXCLUSION OF STATEMENTS OF AN AC-

CUSED IN CUSTODY WHO, ON BEING AD.-

VISED OF HIS RIGHTS, INVOKES THE RIGHT

TO COUNSEL AND THEREAFTER VOLUNTAR-

ILY AND KNOWINGLY WAIVES THAT RIGHT

The Fifth Amendment to the Constitution of the United

States, insofar as applicable herein, provides that no

person “shall be compelled in any criminal case to be a

witness against himself.”

In 1966, a closely divided Court announced certain

procedural guidelines to be applied to custodial interroga-

tions of persons suspected of crimes. These included

warnings that the person had a right to remain silent, that

Statements made could be used against him, and that he

had a right to retained or an appointed attorney before any

questioning.

This Honorable Court stated that a defendant could

waive these rights but that such a waiver would have to be

made voluntarily, knowingly, and intelligently. A reason-

able and faithful interpretation of the Miranda opinion

rests on the intention of the Court io adopt “fully effective

means .. . to notify the person of his right of silence

and to assure that the exercise of that right would be

scrupulously honored.” (Michigan v. Mosley, supra, 423

U.S. 96 at p.103.) Thus the giving of the warnings would

inform the suspect of his rights and assure that any waiver

was a knowing and voluntary one.

It was recognized that these procedural safeguards were

not themselves rights protected by the Constitution but

were instead measures to insure that the right against

compulsory self-incrimination was protected. (Michigan

v. Tucker (1974) 417 U.S. 433, 444.)

Thus, while Miranda does not proscribe admission of

voluntary statements of an incriminating nature, it does

forbid admissions which are the result of custodial

interrogation by the police of one who has not been

advised of the right not to incriminate himself and to have

the assistance of counsel in the exercise of that right.

And assurance was forthcoming that the decision

(Miranda) would in no way create a constitutional

straitjacket, that there should be no blanket prohibition

against the admission of voluntary statements, or of a

permanent immunity from further interrogation as would

turn the Miranda safeguards into “wholly irrational

obstacles to legitimate police investigative activity, and

deprive suspects of an opportunity to make informed and

intelligent assessments of their interests.” (Michigan vy.

Mosley, supra, 423 U.S. 96, 102.) 7

The procedure to be followed once the warnings were

given to a suspect in custody prior to and during interroga-

tion were outlined in Miranda as follows (384 U.S. at pp.

473-475):

‘Once warnings have been given, the subse-

quent procedure is clear. [f the individual indi-

cates in any manner, at any time prior to 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. Without the right to cut off question-

ing, the setting of in-custody interrogation oper-

ates on the individual to overcome free choice in

producing a statement after the privilege has

- been invoked. [f the individual states that he

wants an attorney, the interrogation 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 subsequent 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 defendant knowingly and

intelligently waived his privilege against self-

incrimination and his right to retained or ap-

pointed counsel. Escobedo v. State of Illinois,

378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764,

12 L.Ed.2d 977.” (Emphasis added, footnote

omitted. )

The question as to whether a suspect in custody can

thereafter waive his right after he has invoked his right to

remain silent was answered by this Honorable Court in

Michigan v. Mosley, supra, 423 U.S. 96.

This Honorable Court held that as to one who indicated

a desire to remain silent the Miranda opinion cannot be

sensibly read to create a per se proscription of indefinite

duration upon any further questioning. It was said that a

faithful reading of Miranda must rest on the intention of

the Court to adopt fully effective means to notify the

person of his right of silence and “‘to assure him that the

exercise of the right would be scrupulously honored,” that

the critical safeguard in the passage from Miranda is the

10

right to cut off questioning. (Michigan v. Mosley, supra,

423 U.S. at p. 103.)

The concurring opinion of Mr. Justice White in Mosley

(page 110, footnote 2) notes that Mosley did not speak to

the issue of one who indicates a desire to consult counsel

and a suggestion was made that a later decision to make a

statement in such circumstances without counsel’s pres-

ence could be viewed with skepticism, ie, a possible

heavier burden on the party presenting the statement.

This Honorable Court in the later case of Brewer v.

Williams, supra, 430 U.S. 387, expressly refrained from

holding under the Sixth Amendment right to counsel that a

person in custody could never waive his right to counsel

once it was asserted, saying that,

“The Court of Appeals did not hold, nor do

we, that under the circumstances of this case

Williams could not, without notice to counsel,

have waived his rights under the Sixth and

Fourteenth Amendments. It only held, as do we,

inat he did not.” (Brewer v. Williams, supra,

430 U.S. at pp. 405-406.)

Mr. Justice Powell, concurring, said that the opinion of

the Court made it explicitly ciear that the right to

assistance of counsel may be waived, after it has attached,

without notice to or consultation with counsel.

Thus, the question as to whether a per se rule of

exclusion applies to proscribe the admission of subsequent

statements of a suspect in custody who has invoked his

right to counsel is ready for decision.

Amicus submits that once a person in custody has been

advised of his right to remain silent and his right to retained

or appointed counsel and has invoked his right to counsel,

he may thereafter, for reasons satisfactory to himself,

knowingly, intelligently and voluntarily waive his right

1]

and make statements and submit to questioning. There-

after the prosecution bears a heavy burden to demonstrate

that the waiver is knowing and voluntary but when this

burden is met, the rule permitting admission of such

statements conforms to the letter and spirit of Miranda

and is consistent with the law as developed by this

Honorable Court.

And this has been the holding of a majority of the federal

and state courts that have recently had occasion to address

the question.

The New Mexico Supreme Court in State v. Greene,

572 P.2d 935 (N.M. 1977), held that an accused person in

custody, having invoked his right to have the presence of

counsel upon being advised of his Miranda rights may

subsequently waive his right to have counsel present

during questioning, but, of course, the state has a heavy

burden to demonstrate that the waiver is knowing and

voluntary.

The New Mexico Court pinpointed two situations

contemplated by the Miranda warnings, i.e., (1) invoca-

tion of right to remain silent, in which case interrogation

must cease and (2) invocation of right to have counsel], in

which case the interrogation must cease until an attorney

is present. The Court noted that this Court mentioned that

continued questioning may result in admissible statements

by the accused if the prosecution carries the heavy burden

of demonstrating intelligent waiver of the right to counsel.

The New Mexico Court said that the first of these

questions was answered by the decision in Michigan v.

Mosley, supra, 423 U.S. 96, 101, 96 S.Ct. 321, 46

L.Ed.2d 313 (1951) holding that the invocation of the

right to si.ence does not create a per se proscription upon

further questioning, that the admissibility of statements

12

depends on whether the right to cut off questioning had

been scrupulously honored.

However, that court noted that the holding of Mosley

did not reach the second situation, where the right to

counsel was invoked. After noting that since Mosley some

jurisdictions have adopted a per se rule requiring advice of

counsel (i.e. State v. Boggs, 16 Wash.App. 682, 559

P.2d 11 (1977) ) the New Mexico Supreme Court rejected

this view as unnecessarily rigid and beyond the scope and

intent of the original Miranda decision and adopted what

it termed the more flexible view expressed by the Ninth

Circuit (United States v. Pheaster, (C. A. 9th Cir. 1976)

544 F.2d 353, 367-368, cert. den. (1977) 429 U.S. 1099)

as follows:

“*. . . . In Mosley the Court rejected a literal

interpretation of Miranda, holding that the

exercise of the right to remain silent does not

preclude all further questioning. . . . Although

the specific holding in Mosley is not direct

precedent for the resolution of this appeal,

Mosley does indicate both a recognition that the

procedure set out in Miranda is not as clear as

the language of that opinion might suggest and a

willingness to impart a greater degree of flexibil-

ity in the application of Miranda to varying

factual situations.

“We have concluded that a waiver of rights

under Miranda can occur despite an earlier

demand to have an attorney. . . . The Gov-

ernment, of course, bears a‘heavy burden* * *

to demonstrate that the defendant knowingly and

intelligently waived his privilege against self-

incrimination and his right to retained or ap-

13

pointed counsel.’ [Citations omitted.|” (572

P.2d at p. 940.)

Most of the Federal Courts of Appeal that have had

recent occasion to rule on the matter have held that a

defendant who has requested counse! may thereafter

waive his earlier request for counsel!

In United States v. Hauck (C. A. 8th Cir. 1978) 586

F.2d 1296, the Court of Appeal said that although

Miranda stated that questioning must stop once the right

to counsel has been asserted, it also stated that questioning

could thereafter continue if the defendant specifically

waived the right to counsel. The Court also rejected a

contention that in that case there was the same subtle

coercion that was condemned in Brewer. (586 F.2d at p.

1298.)

! United States v. Grant, (C. A. 4th Cir. 1977) 549 F.2d 942

Biddy v. Diamond (C. A. 5th Cir. 1975) 516 F.2d 118, 122. cert

den. (1976) 425 U.S. 950 [96 S.Ct. 1724, 48 L.Ed.2d 194]

United States v. Rieves (C. A. 5th Cir. 1978) 584 F.2d 740, 745

the defendant invoked his right to remain silent and asked to see an

attorney; later initiation by defendant of dialogue with government

agent affirmatively demonstrated that he wished to waive his right to

remain silent.

United States v. Cobbs (C. A. 3rd Cir. 1973) 481 F.2d 196. cert

den. (1973) 414 U.S. 980 [94 S.Ct. 218, 38 L.Ed.2d 224], held even

where law enforcement knew defendant had an attorney custodial

interrogation without notice to attorney did not violate right to counsel

or preclude admission of statements where defendant freely and

intelligently waived right to counsel.

See also Coughlan v. United States (C. A. Sth Cir. 1968) 391 F.2d

371, cert. den. (1968) 393 U.S. 870, 895 [| Ct. 159, 21 L.Ed.2d 139|

United States v. Hodge (C. A. Sth Cir. 1973) 487 F.2d 945, an

arrestee can change his mind after requesting an attorney.

Moore v. Wolff(C. A. 8th Cir. 1974) 495 F.2d 35, court refuses to

adopt a per se rule requiring suppression, (see a/so cases cited, pp. 36-

37).

14

In United States v. Rodriguez-Gastelum(C. A. 9th Cir.

1978) 569 F.2d 482, 486, cert. den. (1971) 436 U.S. 919,

the Ninth Circuit, in an en banc decision rejected the per se

rule that once counsel has been requested a suspect can

never change his mind and speak without an attorney being

present.

See also United States v. Flores-Calvillo, (C. A. 9th

Cir. 1978) 571 F.2d 512, in which a panel on rehearing,

followed Rodriguez-Gastelum, supra, after having initial-

ly held that under Mos/ey a person in custody who

asserted right to silence could waive it but that the waiver

doctrine did not apply when the person had expressed a

desire for counsel.

A majority of the states in recent decisions have also

held that a defendant who asserted his right to counsel

could thereafter voluntarily waive that right.

It is submitted that Miranda does not foreclose an

informed suspect from voluntarily waiving his previous

exercise of the right to counsel. No rigid, inflexible rule is

required by the language of Miranda and such would be

2 State v. Steelman (Ariz. Sup. Ct. 1978) 585 P.2d 1213.

Battle v. State (Fla. 1976) 338 So.2d 1107.

Berryhill v. Rickets (Ga. 1978) 249 §.E.2d 197.

Korn v. State (Ind. 1978) 379 N.E.2d 444.

Lofton v. State (Ind. 1978) 378 N.E.2d 834.

People v. Young (Ill. 1978) 376 N.E.2d 739.

State v. Kellogg (lowa 1978) 263 N.W.2d 539.

State v. Dominick (La. 1978) 354 So.2d 1316.

Elllerba v. State (Md. 1979) 398 A.2d 1250. (Maryland refused to

adopt the minority rule, the so-called per se rule, which mandates

exclusion of all statements given by an accused after counsel has been

engaged unless counsel advised and given opportunity to attend when

——

15

contrary to the spirit of that decision as it has been applied

over the years.

A defendant does not lose his right to make decisions in

his own interest by invoking the right to counsel. Certainly

a defendant, who may exercise his constitutional right to

represent himself at the trial of guilt or innocence (Faretta

v. California (1975) 422 U.S. 806) should not find

himself unable to change his mind regarding counsel under

Miranda. That decision should not mandate “‘installing

counsel as the final arbiter of the privilege.” (Miranda \v.

Arizona, supra, at p. 537, Mr. Justice White dissenting. )

statement made by defendant.)

Com. v. Watkins (Mass. 1978) 379 N.E.2d 1040. 1045.

Com. v. Santo (Mass. 1978) 376 N.E.2d 866.

People v. Parker (Mich. 1978) 269 N.W.2d 635. 637-638

(expressly rejecting a per se exclusionary rule but recognizing a

difference between assertion of right to remain silent and assertion o!

right to counsel).

State v. Olds (Mo. 1978) 569 S.W.2d 745 (finding state did not

meet its burden).

State v. Moore, 202 N.W.2d 740 (Neb. 1972).

Lee v. State (Okla. 1977) 560 P.2d 226, 233.

Steele v. Johnson (Ore. 1978) 586 P.2d 811. holding state had not

born its burden.

Com. v. Myers (Pa. 1978) 392 A.2d 685.

Com. y. Peoples (Pa. 1978) 394 A.2d 956. 957-958.

State v. Pendergrass (S.C. 1977) 239 S.E.2d 750. 752

McPherson vy. State (Tenn. 1978) 562 S.W.2d 2109.

Williams v. State (Tex. 1978) 566 S.W.2d 919.

State v. Hohman (Vt. 1978) 392 A.2d 935 (held that state had not

met its burden).

Lamb v. Commmonwealth (Va. 1976) 227 S.E.2d 737.

Schilling v. State (Wis. 1978) 271 N.W.2d 631.

16

THE CONVERSATION BETWEEN PATROLMEN

GLECKMAN AND McKENNA IN THE VEHICLE

DID NOT CONSTITUTE INTERROGATION OF

INNIS UNDER MIRANDA AND THE FIFTH

AMENDMENT AND HIS VOLUNTARY STATE-

MENT CONSTITUTED A WAIVER OF ANY

PREVIOUS INVOCATION OF THE RIGHT TO

COUNSEL

Amicus has urged that a per se exclusion of any

statement of a suspect in custody who has invoked his right

to counsel is not required by a reasonable reading of

Miranda. Amicus will now briefly address the two issues

set forth in the majority opinion of the Rhode Island

Supreme Court (State v. Innis, supra, 391 Atl.2d at p.

1161), whether (1) the defendant was interrogated within

the meaning of Miranda prior to assisting in locating the

shotgun and (2) if so, whether he voluntarily waived his

rights under the Fifth Amendment.

The Rhode Island Court held that the conversation

between Gleckman and McKenna constituted “‘interroga-

tion”’ as that term was used in Miranda and likened the so-

called “Christian burial speech” in Brewer v. Williams,

supra, 430 U.S. 387 (which this Court said was “‘tanta-

mount” to interrogation), to the conversation of the

officers in this case, admitting that this constituted an

‘“expansion”’ of the term “interrogation” as used in the

Fifth Amendment context requiring Miranda warnings.

The Rhode Island Court put to one side the significant

fact that Brewer was a Sixth Amendment case and that the

right to counsel had attached because adversary judicial

proceedings had commenced against the defendant. (See

Kirby v. Illinois, (1972) 406 U.S. 682, 688.) That court

also ignored the fact that the so-called ‘‘Christian burial

oP eS mend

17

speech” was directed te the defendant Williams, creating

a form of compulsion, but more important, the “‘speech’”’

was made for the admitted purpose of eliciting information

of an incriminatory nature from a defendant against whom

adversary judicial proceedings had been initiated and in

the absence of counsel, a right which had attached under

the Sixth Amendment.

In Brewer, the “‘speech”’ was “tantamount to interroga-

tion’’ because it was intended to secure a response from

the defendant and elicit incriminating information. In this

case the officers were merely conversing with each other,

this was the finding of the trial judge who heard the motion

to suppress and there was no contrary evidence.

This Honorabie Court restricted the decision in Brewer

to the Sixth Amendment and spoke of the broad right of

counsel which attaches when adversary judicial proceed-

ings are instituted. This right does not require that one be

in custody to be entitled to it or that he be subjected to

interrogation as such or that there be compulsion.

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

206.)

As the majority in Brewer said (supra, at p. 397):

‘Specifically, there is no need to review in this

case the doctrine of Miranda vy. Arizona, supra,

a doctrine designed to secure the constitutional

privilege against compulsory incrimination,

concluding that Williams was deprived of a different

constitutional right — the right to the assistance of

counsel.

The Miranda rules were intended to protect a suspect

from being compelled to incriminate himself in the coer-

18

cive setting of custodial interrogation. Miranda requires

that the suspect be informed of his right against self-

incrimination and that this right would be scrupulously

honored and that questioning would cease when he

invoked his rights.

Amicus submits that “interrogation” as used in Miranda

has not been “expanded” by Brewer and it should not

receive any broader definition than originally set forth.

This Court’s decision in Miranda, setting forth rules of

procedure, defines “‘custodian interrogation’’ as follows:

“By custodian interrogation we mean ques-

tioning initiated by law enforcement officers

after a person has been taken into custody or

otherwise deprived of his freedom of action in

any significant way.”’ (Emphasis added.) (Mir-

anda v. Arizona, supra, 384 U.S. at p. 444; see

also Oregon v. Mathiason, (1977) 429 U.S.

492, 494.)

This meaning of interrogation is the accepted definition

of that term, i.e., questioning, inquiring.

Ballentine’s Law Dictionary (3rd Ed.) defines interrogation as:

‘*Propounding questions, questioning, especially a wit-

ness, a prospective witness, or one suspected of the

commission of a crime.”

“Webster's New International Dictionary (Second

Edition, Unabridged) defines interrogate:

‘To question; esp. to question formally; to examine by

asking questions; as to interrogate a witness.”

And interrogation as:

“Act of interrogating, or questioning; inquiry; also, a

question put; an inquiry.”

19

No case has suggested that the term “‘interrogation,”’ as

used in Miranda, would include conversation between

two persons not directed to a suspect and without a design

to elicit incriminating statements from one in a coercive

custodial setting.

Any intimation in the majority opinion of the Rhode

Island Supreme Court that Gleckman’s conversation with

McKenna was a clever “ploy” to secure an incriminating

response finds no support in the record. It is inconceivable

that Gleckman, an officer with less than two years

experience, would take it upon himself to disobey a direct

order of a superior officer, Captain Leyden, and attempt to

devise such a scheme.4

It is evident that there was no impermissive custodial

interrogation in this case and that any statement of the

respondent in the vehicle was voluntary and not the

product of compulsion or coercion.

41In fact, what Gleckman said to McKenna was apparently correct.

i.e., the nearby location of the school for handicapped children and the

danger posed by the shotgun, and it was not an intentional misrepre-

sentation to secure a response as in Frazier v. Cupp (1969) 394 U.S.

731, at p. 739, which misrepreseniation was not held to be of sufficient

significance to render inadmissible an otherwise voluntary confession.

See also United States v. Collins (C. A. 2d Cir. 1972) 462 F.2d

792, 797, which held mere plea to confess to prevent more killings.

bloodshed, amounted to no more than an exhortation to reevaluate

defendant’s decision in that case to remain silent, and was not

violative of Miranda.

And United States ex rel. Henna v. Fike (C. A. 7th Cir. 1977) 563

F.2d 809, in which the court rejected an attempt of the petitioner to

draw a parallel between the detective’s suggestion that he was looking

for a missing man who was injured and the “Christian burial speech”

in Brewer, supra, stating that the detective’s suggestion was neither

calculated nor coercive as was the behavior of the police in Brewer.

(See also United States v. Hauck, supra, (C. A. 8th Cir. 1978) 586

F.2d 1296, 1298.)

20

_ The trial judge, who heard the witnesses, concluded that

there was clearly a waiver when Innis spoke, ‘‘Stop, turn

around, I’ll show you where it is.”” Amicus submits that

this was a voluntary act done with full knowledge of his

right to remain silent and to have the assistance of counsel

and constituted the waiver of which this Court spoke in the

recent case of North Carolina v. Butler, ___ U.S. ____

[47 Law Week 4454, decided April 24, 1979].

In Butler, in rejecting an inflexible per se requirement of

an express or written waiver of rights, this Honorable

Court said,

‘An express written or oral statement of

waiver of the right to remain silent or of the right

to counsel is usually strong proof of the validity

of the waiver, but it is not inevitably either

necessary or sufficient to establish waiver. The

question is not one of form, but rather whether

the defendant in fact knowingly and voluntarily

waived the rights delineated in the Miranda case

9

In this case, as in Butler, there is no question that Innis

was adequately and effectively apprised of his rights, and,

of equal importance, he was under no compulsion to speak

at all, much less to make incriminating statements.

He already had been told by three officers of his rights

under Miranda and, when he invoked the right to counsel,

any questioning that would have taken place was cut off

and his right was scrupulously observed, Captain Leyden

ordering the custodians of the prisoner not to question or

coerce him in any way. Innis must have heard this order as

he apparently also heard the conversation between

Gleckman and McKenna.

After he spoke, he was again given the Miranda

seb Shn ena nets *

21

warnings and expressly waived his rights and indicated he

wanted to show the officers where the weapon was located.

A suspect may properly make an assessment of his

interests and conclude, for reasons satisfactory to himself,

that he should waive his right. His action may have been

out of compassion (the trial judge commended him for it)

or it could have been for a more selfish reason. The fact is

he was under no compulsion to do anything.

Innis, having been informed of his rights and having

invoked the right to counsel, made a voluntary and

intelligent waiver of his previously invoked right.

Finally, the Rhode Island Supreme Court attempted to

invoke the rule in Wong Sun v. United States (1963) 371

U.S. 471, and concluded that the discovery of the shotgun

was the “fruit of the poisonous tree.”’ It is submitted that

Wong Sun is not applicable for there was no violation of a

constitutional right. As this Court said in Brown \v.

Illinois (1975) 422 U.S. 590, 602, ““Wong Sun thus

mandates consideration of a statement’s admissibility in

light of the distinct policies and interests of the Fourth

Amendment.”’ It does not govern this case.

In any event, the major premise of the court below, that

there was an illegality in obtaining the original statement,

is fallacious and it follows that there is no “taint” to purge.

Rejecting the premise, amicus must also reject the conclu-

sion that is sought to be drawn therefrom.

It must be concluded that the shotgun, the object of the

motion to suppress, a most reliable and trustworthy item of

physical evidence, was properly admitted and presented to

the trier of fact in this case, that there was no impermissible

custodial interrogation in violation of Miranda and that

the defendant voluntarily and with full knowledge of his

22

rights, waived his previously invoked right to counsel, and

that the statements and the weapon were not the product of

illegal police procedure.

CONCLUSION

The balance struck by Miranda was an extremely close

one, five to four decision over strong dissents. The

majority of the Court weighed the interest of society and

law enforcement in “‘a proper system of law enforcement”’

and argued that the Court has always given ample latitude

to law enforcement agencies in the legitimate exercise of

their duties, concluding that the holding of the Court

‘should not constitute an undue interference with a proper

system of law enforcement” and that the decision of the

Court “does not in any way preclude police from carrying

out their traditional investigatory functions.” (Miranda v.

Arizona, supra, 384 U.S. at p. 481.)

It is submitted that a rule that would exclude the weapon

in this case from evidence on the ground that the voluntary

statement of respondent was obtained in violation of this

Court’s holding in Miranda would most certainly interfere

with law enforcement agencies in the performance of their

investigative duties and would preclude the police from

carrying out their traditional duties in a proper system of

law enforcement.

Amicus submits that a sensible reading of Miranda

does not require such a result.

23

However, if the rules developed by Miranda and its

progeny require the suppression of this weapon for the

reasons relied on by the Rhode Island Supreme Court,

then amicus submits that THIS IS THE CASE for the re-

examination of Miranda and the overruling of a judicial

“*straitjacket”’ and the removal of an “irrational obstacle”

to legitimate police investigative activity.

Respectfully submitted,

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General — Criminal Division

WILLIAM E. JAMES,

Sr. Assistant Attorney Genera!

Attorneys for Amicus Curtae