# Amicus Brief — Rhode Island v. Innis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0049%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1980 - **Citation:** 446 U.S. 291 ## Text § 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0049%3A7. Public record. Not legal advice.