Petition — Oregon v. Bradshaw

—

—

LEXANDER L. Sevas

Supreme Court, U

81-1857 pm cout us, |

In the Supreme Court:

of the United States

OCTOBER TERM, 1981

STATE OF OREGON,

Petitioner,

V

JAMES EDWARD BRADSHAW,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF OREGON

*Counsel of Record

QUESTION PRESENTED

Does a police officer violate the limits upon custo-

dial interrogation established in Edwards v. Arizona,

451 U.S. 477 (1981), by reminding an arrestee who

inquires, “What is going to become of me now?” of the

arrestee’s previously-asserted request for counsel and

resuming his conversation with the arrestee, upon the

arrestee’s acknowledgment that he understands his

rights?

TABLE OF CONTENTS

Page

t x ERT TT CE i

../ / // 1

./ 1

Constitutional Provisions Involveii 1

ß dacicetaidapnddnniommnadaennanbiden 2

e TOO 6

— 9

Appendix A: Opinion of Oregon Court of Appeals 10

Appendix B: Order of Oregon Supreme Court 14

Appendix C: Testimony of Arresting Officer (excerpt 15

TABLE OF AUTHORITIES

Cases

Edwards v. Arizona, 451 U.S. 477 (1981) ......... 8 passim

Jackson v. Denno, 378 U.S. 368 (1984) 4

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

Miranda v. Arizona, 384 U.S. 436 (19660) 2,3

Rhode Island v. Innis, 446 U.S. 291 (1980))⸗·)⸗ . +

State v. Brewton, 238 Or. 590, 395 P.2d 874 (196) 4

State v. Johnson, 37 Or. App. 209, 586 P.2d 811 (1978) ........... 4

ii

1

PETITION FOR CERTIORARI

The State of Oregon respectfully prays that a writ

of certiorari issue to review the judgment and opinion

of the Court of Appeals of the State of Oregon entered

in this proceeding on December 1, 1981.

OPINIONS BELOW

The opinion of the Court of Appeals of the State of

Oregon reversing respondent’s conviction (Appendix

A, below) is reported at 54 Or. App. 949, 636 P.2d 1011

(1981). The order of the Supreme Court of the State of

Oregon denying the State’s petition for review of the

decision of the court of appeals (Appendix B, below) is

reported at 292 Or. 568, — P.2d — (1982).

JURISDICTION

The judgment of the Court of Appeals of the State

of Oregon was entered on December 1, 1981. The

Supreme Court of Oregon denied a timely petition for

discretionary review on February 3, 1982; and this

petition for certiorari was timely filed within 60 days

of that date, pursuant to Rule 20, as time is computed

under Rules 28 and 29. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

No person shall . . . be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law... .

2

Constitution of the United States, Amendment

XIV:

. . . No State shall . . . deprive any person of

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

STATEMENT OF THE CASE

A. Facts

Defendant Bradshaw was convicted in the state

trial court of manslaughter in the first degree, driving

while under the influence of intoxicants, and driving

while his operator’s license was revoked. At issue on

appeal, and in this petition, is the admissibility into

evidence of defendant’s admission to a state police

polygraph examiner that he was the driver of the

vehicle involved in the fatal accident.

On September 14, 1980, state police corporal Hays

interviewed defendant at a city police station, as a

“possible suspect” in a vehicular homicide, after advis-

ing defendant of his Miranda’ rights [Tr. 14, 16-17,

30, 32). After denying that he had been involved in the

accident, defendant stated, “And I do want an attorney

before it goes very much further.” Hays terminated

the interview, placed defendant under arrest for fur-

nishing liquor to a minor (presumably the deceased),

and readvised defendant of his Miranda rights [Ex. 2].

Some time thereatter, either while still at the city

police station or enroute to the county jail, defendant

' Miranda v. Arizona, 384 US. 436 (1966).

3

asked Hays, “Well, what is going to happen to me

now?” [Tr. 22]. In response, Hays testified at the

pretrial hearing on the admissibility of defendant’s

post-arrest statements,

. . . says [sic], “You do not have to talk to me.

You have requested an attorney and I don’t want

you talking to me unless you so desire because

anything you say — because — since you have

requested an attorney, you know, it has to be at

your own free will.” I says [sic] “I can’t prevent you

from talking, but you understand your place — you

know, where your standing is here?” and he agreed.

He says [sic], “I understand,” and —- you know, and

we had conversation from then on

[Tr. 22.2

In the course of the ensuing conversation, defend-

ant agreed to take a polygraph examination concern-

ing the accident under investigation, and such an

examination was administered the next day [Tr. 23,

42). Defendant again was advised of his Miranda

rights prior to the examination, and he executed a

written consent to the examination [Tr. 43-44].

At the conclusion of the examination, the poly-

graph examiner told defendant that it was his opinion

that defendant had not been truthful in response to

questions about whether he had driven the vehicle

involved in the accident [Tr. 45]. Defendant thereupon

?Hays’s testimony concerning this matter is reproduced more fully as

Appendix C, below. At the pretrial hearing on the admissibility of his

statements, defendant did not challenge this testimony in any respect. His

testimony at that hearing concerned only his later conversation with the

state police polygraph examiner [see Tr. 69-71).

4

admitted to the examiner that he had driven the

vehicle, after having consumed a considerable amount

of alcohol, and had passed out behind the wheel [Tr.

45-46].

At the pretrial hearing on the admissibility of

defendant's post- arrest statements, defendant tes-

tified that the polygraph examiner had told him that

the police had ways of breaking [his story] down to

prove that [he] was driving the truck” [Tr. 700.“ The

polygraph examiner denied this [Tr. 75]. The trial

court found that “The evidence establishes that there

were no threats, promises, or inducements” on the part

of the police underlying defendant’s statements [Tr.

81).

B. Raising and Preserving of Federal Question

Prior to trial, the State requested a hearing on the

admissibility of defendant’s -arrest statements,

pursuant to Jackson v. Denno, 378 U.S. 368 (1964),

and State v. Brewton, 238 Or. 590, 395 P.2d 874 (1964)

[Tr. 10]. At the conclusion of the hearing, the trial

court ruled as follows:

. . . find that the statements made to Officer

— or, to Corporal Rainey [the polygraph examiner]

are admissible. The evidence establishes that there

were no threats, promises, or inducements, that the

Only moments before defendant so testified, the trial court and counsel

had engaged in a lengthy conversation concerning the facts and holdings of

several confession cases, including State v. Johnson, 37 Or. App. 209, 586

P 2d 811 (1978), in which the police were held improperly to have induced an

arrestee to confess, by telling him that his story was untrue and would not be

hard to break down [Tr. 57-58, 60-62, 65-67].

5

defendant was properly advised of his rights and

that he did understand them and I also find that

the evidence supports a conclusion that although

Mr. Bradshaw had indicated his intent to have an

attorney before it goes very much further, that

within a short time after he made that statement

he was initiating conversations in spite of the of-

ficer’s replying to him, “I can’t talk with you,” and

that I think that when I look at the total context of

this, that there was, in fact, a change of this man’s

mind, that it was not brought on by any persuasion

or argumentative kind of statements that were

improper in any way and that the statements final-

ly made to Officer Rainey — or, to Corporal Rainey

were voluntary and followed a waiver and a know-

ing waiver of his right to remain silent

[Tr. 81-82).

On appeal to the state court of appeals, defendant

assigned this ruling as error, as follows:

The trial court erred in failing to suppress

defendant’s statements made after his assertion of

the right to counsel.

[App. Br. at 10, State v. Bradshaw, 54 Or. App. 949,

636 P.2d 1001 (1981)).

When the court of appeals reversed defendant’s

conviction on this ground (Appendix A, below), the

state petitioned the state supreme court for discretion-

ary review, on the ground that

The Court of Appeals erred in treating a police

officer’s reasonable response to an arrestee’s ques-

tion, “What is going to happen to me now?” as the

functional equivalent of the “police-initiated” in-

terrogation condemned in Edwards v. Arizona, —

US —, 101 S Ct 1880, 68 L Ed 2d 378 (1981)

6

[Petition for Review at 1, State v. Bradshaw, 292 Or.

568, — P.2d — (1982).

REASONS FOR GRANTING THE WRIT

By treating a police officer’s reasonable re-

sponse to an arrestee’s question, “What is going

to happen to me now?” as police-initiated interro-

gation of the kind condemned in Edwards v. Ari-

zona, the Oregon Court of Appeals has applied

the Fifth Amendment in a manner which estab-

lishes in Oregon, and which threatens to serve as

a precedent for establishing in other jurisdic-

tions, erroneous standards for determining

whether interrogation is improperly coerced,

whether it is “police-initiated,” and indeed,

whether it is “interrogation” at all.

In Edwards v. Arizona, 451 U.S. 477 (1981), a case

whose facts, as summarized in the Court’s opinion, are

so egregious that we are suprised it reached the Court

without being reversed, this Court set aside the conv-

iction of an accused who reasserted his previously-

invoked right to counsel, only to be told that he “had”

to talk to the police. The majority opinion of the Court

stated:

. . . [W]e now hold that when an accused has

invoked his right to have counsel present during

custodial interrogation, a valid waiver of that right

cannot be established by showing only that he

responded to further police-initiated custodial in-

terrogation. We further hold that an accused, such

7

as Edwards, having expressed his desire to deal

with the police only through counsel, is not subject

to further interrogation by the authorities until

counsel has been made available to him, unless the

accused himself initiates further communication,

exchanges or conversations with the police.

451 U.S. at 484-485.

The present case is not one in which the police

should be held to have initiated further interrogation

of an accused who had invoked his right to counsel.

Defendant initiated the conversation himself, by in-

quiring of the arresting officer, “What is going to

happen to me now?”

We do not agree with the state court of appeals that

the conversation which followed defendant’s inquiry

must be deemed “interrogation,” simply because it

ultimately resulted in defendant’s being asked to sub-

mit to a polygraph examination, which in turn led to

his making incriminating admissions. This Court indi-

cated that such is not the law in Rhode Island v. Innis,

446 U.S. 291 (1980).

But even if the resumed conversation must be

deemed “interrogation,” it cannot be deemed “police-

initiated,” in the manner condemned in Edwards. The

arresting officer resumed the conversation only after

defendant had inquired about his future, and only

after the officer had warned him that resumption of

the conversation would constitute a waiver of defend-

ant’s previously-asserted right to counsel.

8

And even if the state court of appeals correctly

characterized the officer’s conduct, in response to

defendant’s question, as “[taking] advantage of the

opening to reinterrogate defendant,” the officer can-

not be said to have taken unfair advantage of a

defendant who was fully warned that he was resuming

a conversation which he was free to terminate again at

any time. In this respect, at least, the arresting of-

ficer’s resumption of his conversation with the defend-

ant in this case more closely resembles the non-

coercive questioning of a properly-advised defendant

which was upheld in Michigan v. Mosley, 423 U.S. 96

(1975), than the coercive tactics condemned in £d-

wards. Edwards did not overrule Mosley or at least

did not do so expressly; and the rationale of Mosley,

rather than that of Edwards, should be applied in

cases like the one at bar.

If Edwards is properly understood as forbidding,

on Fifth-Amendment grounds, any resumption of con-

versation between the police and an arrestee who has

invoked his right to counsel — even when, as here, the

accused initiates the conversation and is reminded of

his constitutional rights — simply because the police

might attempt, in the course of the renewed conversa-

tion, to obtain incriminating admissions, we respect-

fully submit that Edwards should be re-examined;

and if the Oregon Court of Appeals has misunderstood

the breadth of Edwards, it should be told so. The

9

Oregon court’s construction of Edwards in this case

not only significantly limits the extent of permissible

police interrogation beyond that required by a proper

reading of Edwards: it encourages the police to do

nothing to assuage arrestees’ understandable concern

over their situation. Such a result is neither required

by the Constitution nor desirable.

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals of the State of Oregon.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Solicitor General

THOMAS H. DENNEY

Assistant Attorney General

Counsel for Petitioner

April 5, 1982