Petitioners Brief — Solem v. Stumes

————

FILED |

NO. 81-2149 AUE 22 1983

ALEXANDER L. STEVAS,

CLORK

{

—

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HERMAN SOLEM, Warden

South Dakota State Penitentiary,

Petitioner,

Vv.

NORMAN STUMES,

Respondent,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF PETITIONER

MARK V. MEIERHENRY

ATTORNEY GENERAL

Richard Dale

Assistant Attorney General

State Capitol

Pierre, South Dakota 57501-5090

Telephone: (605) 773-3215

QUESTION PRESENTED

Whethe Edwards v. Arizona, 451 U.S.

477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981),

which held that an in-custody suspect who

“asserts his right to 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, is to be

applied retroactively?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL PROVISION

STATEMENT CF THE CASE AND

PROCEDURAL HISTORY

SUMMARY OF ARGUMENT

ARGUMENTS AND AUTHORITIES

A. PARAMETERS OF CUSTODIAL INTER-

ROGATION UNDER THE FIFTH AMEND-

Pe ton fT > ee

B. RETROACTIVE APPLICATION OF A

NEW STANDARD OF CRIMINAL PRO-

CONCLUSION

(ii)

iii

15

15

31

TABLE OF AUTHORITIES

CASES: PAGE

Brewer v. Williams, 43) U.S. 387, 97 S.Ct.

1232, 51 L.Bd.2d0 424 (1977) 16

Brown v. Louisana, 447 U.S. 323, 327, 328,

: .Ct. 2214, 65 L.Ed.2d 159

(1980) PASSIM

Chimel v. United States, 395 U.S. 752, 89

S.Ct. 2034, 23 L.Ed.2d 685 (1969) 44

Clewis v. Texas, 386 U.S. 707, 87 S.Ct.

1338, 18 L.£d.2d 423 (1967) 35

Davis v. North Carolina, 384 U.S. 737,

B6 S.ct. 1/761, 16 L.£d.2d 895 (1966) 35

Edwarus v. Arizona, 451 U.S. 477, 483, 484,

101 S.Ct. 1880, 68 L.Ed.2d 378, 387 n. 9

(1981) PASSIM

Escobedo v. Illinois, 378 U.S. 478, 490,

note 14, 12 L.£d.2d 977, 986, 84 S.Ct.

1758 16

Fare v. Michael C., 442 U.S. 707, 725,

$9 §.Ct. 2560, 61 L.Ed.2d 197 (1979) 19

Hankerson v. North Carolina, 432 U.S. 233,

246, 97 S.Ct. 2339, SIL

; . , .Ed.2d 306

(1977) 34, 46

Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct.

1677, 23 L.Ed. 253 (1969) 37

Johnson v. New Jersey, 384 U.S. 719, 731

(1966) 32, 35, 36

(iii)

Johnson v. Zerbst, 304 U.S. 458, 464,

$8 S.Ct. 1019, 82 L.Ed.2d 1461

(1938) 17, 18

Linkletter v. Walker, 381 U.S. 618, 629,

85 §.Ct. 1731, 14 L.Ed.2d 601

(1965) 31, 48

Mackey v. United States, 401 U.S. 667,

675-702, 91 S.Ct. 11600, 28 L.Ed.2d 404

(1971) 37, 47

michagan + Vv. poste 423 U.S. 96, 102,

L.Ed.2d 313 (1975) 18, 19

Miranda v. Arizona, 384 U.S. 436, 475,

86 S.Ct. 1602, 16 L.Ed.2d 694, 726

(1966) PASSIM

North Carolina v. Butler, 441 U.S. 369,

, Ct. ; L.Ed.2d 286

(1979) 20

Oregon v. Bradshaw, U.S. ,

Ths set 2850 ; , 2834, 2835,

L.Ed.2d = (1983) 23, 24

Rhode Island v. Innis, 446 U.S. 291, 300,

, . .Ct. 1682, 64 L.Ed.2d 297

(1980) 20, 21, 30

State v. McCloskey, 90 N.J. 18, 446 At.2d

1201 (1982) 37

State v. Shea, 421 So.2d 200 (La. 1982) 37

Stovall v. Denno, 388 U.S. 293, 297,

.Ed. 9, 87 S.Ct. 1967

(1967) 33, 37

(iv)

Stumes v. Solem, 671 F.2d 1150 (8th Cir.

~~ 1982) 25

Tague v. Louisiana, 444 U.S. 469, 100 S.Ct.

Ze5- 62 L.Ed.2a 622 (1980) 20

Tehan v. United States ex rel. short 382

, , . 453

(1966) 31

Williams v. United States. 401 U.S. 646,

653, 654, 91 S. Ct. 1148, 28 L.Ed.2d 388

(1971) 32, 44

Wyrick v. Fields, U.S. __, 103 §.Ct. 394,

- Ed. (1982) 23

OTHER REFERENCES:

28 U.S.C. § 1254(1) 2

28 U.S.C. § 2254 10, 49

(v)

4

i ad

se

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Eighth Circu.t appears in

the appendix attached to the Petition for

Writ of Certiorari.

The opinion of the United States

District Court for the District of South

Dakota appears in the Joint Appendix.

The opinion of the South Dakota Supreme

Court appears in the Joint Appendix and is

also reported with the following citation:

State v. Stumes, 90 S.D. 382, 241 N.W.2d 587

(1976).

(vi)

NO. 81-2149

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

HERMAN SOLEM, Warden

South Dakota State Penitentiary,

Petitioner,

Vv.

NORMAN STUMES,

Respondent,

JURISDICTIONAL STATEMENT

The judgment of the Eighth Circuit

Court of Appeals was entered on March l,

1982. The Petition for Writ of Certior-

ari was applied for on April 30, 1982,

within the time set by Rule 20.2 of the

2

Rules of the Supreme Court. The Petition

for Writ of Certiorari was granted on

July 6, 1983. Taris Court's jurisdiction

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

The Fifth Amendment to the Constitu-

tion of the United States provides as

follows:

No person shall be held to

answer for a capital, or other-

wise infamous crime, unless on a

presentment or indictment of a

Grand Jury, except in cases

arising in the land or naval

forces, or in the Militia, when

in actual service and time of

War or public danger; nor shall

any person be subject for the

same offense to twice be put in

jeopardy of life or limb; nor

shall be compelled in any crim-

inal case to be ae witness

against himself, nor be deprived

of life, liberty, or property,

without due process of law; nor

shall private property be taken

for public use, without just

compensation.

3

The Fourteenth Amendment to the

Constitution of the United States pro-

vides in Section 1 as follows:

All persons born or naturalized

in the United States and subject

*“o the jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make or

enforce any law which shall

abridge the privileges or immun-

ities of the citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal protec-

tion of the laws.

STATEMENT OF THE CASE

AND PROCEDURAL HISTORY

On the afternoon of September 17,

1973, the body of Joyce Hoff was dis-

covered in the bedroom of her Sioux

Falls, South Dakota, apartment. Later

that day, the Minnehaha County Coroner

performed an autopsy on the body. The

Coroner concluded that Ms. Hoff had not

+

died a natural death, but had died from a

lack of oxygen, either anoxia or asphyxia-

tion. Trial Transcript at 566. jhe

Coroner's examination revealed that the

victim had a bruise on her right cheek

and cuts on the bridge of her nose and on

her lips. In addition, a spray can top

had been forced into the victim's vagina.

Trial Transcript at 573, 576.

On September 27, 1973, the Respon-

dent, Norman Stumes, was arrested in

Green Bay, Wisconsin, on charges unre-

lated to the Hoff homicide. Stumes was

advised of his constitutional rights

under Miranda and placed in the Brown

County, Wisconsin, jail.

On September 30, 1973, a group of

Sioux Falls police officers left for

Green Bay, Wisconsin, to return Stumes to

South Dakota. Detectives James Green and

5

Don Skadsen took a commercial flight to

Green Bay, while Deputy Headrick drove

the automobile to Wisconsin that would be

used to transport Stumes. The interest

in securing Stumes' return to South

Dakota was caused not only by the other

charges against him, but, because he had

become a suspect in the Hoff homicide.

Stumes' mother retained a Sioux

Falls attorney, Steve Jorgensen, to

represent the Respondent. That attorney

was notified when Stumes was arrested,

and actually received a telephone call

from Stumes while he was in custody. Mr.

Jorgensen advised Stumes that he should

not make any statement until he had been

returned to Sioux Falls and had consulted

with Jorgensen. Evidentiary Hearing,

October 6, 1977, at 8.

6

Stumes was first interviewed by the

Sioux Falls police officers on October l,

1973. Detective Green was alone with

Stumes that morning, and talked with the

Respondent for an hour and a half con-

cerning the Hoff killing. Detective

Green advised Stumes of his Miranda

rights before discussing the crime, and

Stumes indicated his willingness to talk.

Upon being asked whether he would submit

to a polygraph examination, Stumes

stated:

I'd rather not answer that

question until I talk to Steve.'

Trial Transcript 461.

Detective Green ceased questioning

Stumes at that point, approximately 11:45

a.m.

At approximately 4:30 p.m. on the

afternoon of October 1, Detective Green,

7

accompanied by Detective Skadsen, re-

turned to talk with Stumes. At this

session, Stumes was not given Lis Miranda

warnings. In response to the only ques-

tion Detective Green asked that afternoon,

Stumes said that Joyce Hoff's death was

accidental. Trial Transcript 35.

The following morning, October 2,

1973, Detectives Green and Skadsen, and

Deputy Headrick, returned to the Brown

County Jail to take Stumes back to South

Dakota. Shortly after beginning the

trip, Detective Green once again advised

the Respondent of his constitutional

rights. Stumes indicated that he under-

stood his rights and was willing to talk.

The trip was somewhat uneventful

until about 90 miles out of Sioux Falls,

South Dakota, when Stumes suffered “a

little conflict" with his emotions, and

8

stated that he "couldn't understand why

anybody would want to kill Joyce, and

that the taking of a human life is so

useless." Trial Transcript 625. There

was no interrogation occurring at that

time. In fact, there had been no conver-

sation for approximately fifteen minutes.

Trial Transcript 626. Detective Green

then advised Stumes that he would "feel

better after he got this off his chest."

Trial Transcript 42. Stumes then related

the story of how Joyce Hoff died. Id.

After Stumes had finished, Green asked

him if he would be willing to give a

statement when they arrived in Sioux

Falls. In the words of Detective Green:

I told him at that time that his

attorney would probably advise

him not to. He [Stumes] said he

didn't give a damn what his

attorney said; he could talk to

anybody he wanted to.

Trial Transcript 44.

9

Upon arrival in Sioux Falls, Stumes

was placed in the Minnehaha County Jail.

Shortly after admission to the jail,

Stumes indicated that he wanted to speak

to Detective Skadsen. According to

Detective Skadsen:

He ([(Stumes} was crying again,

and he put his head on my

shoulder, and he said, ‘Please

tell them that I didn't mean to

kill her, that it was an acci-

dent--that I am not a vicious

killer.'

Trial Transcript 547.

Prior to his trial for the murder of

Joyce Hoff, Stumes moved the court to

suppress the statements made to Green and

Skadsen. The motion was denied, the

detectives testified at his trial, Stumes

was convicted of first-degree manslaugh-

ter and sentenced to life imprisonment

at the South Dakota State Penitentiary.

On appeal to the South Dakota Supreme

Court, the case was remanded to the trial

10

court with instructions to enter Findings

of Fact and Conclusions of Law supporting

the court s denial of Stumes' motion to

suppress his admissions. 241 N.W.2d 587.

The trial court entered its Findings

and Conclusions, and Respondent's convic-

tion was thereby affirmed. Id.

Stumes filed his Petition for Habeas

Corpus relief under 28 U.S.C. § 2254 on

May 3, 1977, in the Southern Division of

the District Court for the District of

South Dakota. The district court held

evidentiary hearings om October 6, 1977,

and May 19, 1978. An additional hearing

was held on December 19, 1980, to receive

police reports in Stumes' possession

which had not been introduced at the

previous evidentiary hearings.

The district court, in its Memoran-

dum Decision of April 10, 1981, denied

Stumes' Application for Writ of Habeas

ll

Corpus. The court found that Stumes had

not suffered any deprivation of either

his Sixth Amendment or Fifth Amendment

rights.

Edwards v. Arizona was decided by

this Court on May 18, 1981. On May 31,

1981, Stumes filed his Notice of Appeal

of the district court's denial of habeas

corpus relief. The Appeals Court, in its

opinion of March 1, 1982, held that

Edwerds required reversal of the district

court's decision and ordered that court

to issue the writ discharging Stumes

unless the State began proceedings to

retry the Respondent. Petitioner Solem

then sought a writ of certiorari in this

Court, and, in the interim, moved the

district court to stay the execution of

the Court of Appeals' Order. The dis-

trict court granted the Petitioner's

12

Motion and this Court granted the writ of

certiorari on July 6, 1983.

SUMMARY OF ARGUMENT

Retroactive application of Edwards

v. Arizona is not mandated by the United

States Constitution. Edwards' emphasis

upon the initiation of further dialogue

with the suspect who has invoked his

right to counsel establishes a new consti-

tutional standard, not foreshadowed by

previous decisions of this Court, and

should only be applied prospectively.

The criteria for determining whether

a new constitutional rule should be

applied retroactively requires examina-

tion of the rule's purpose, the extent of

reliance by law enforcement authorities

on the old standards, and the effect on

the administration of justice of a retro-

active application of the new standards.

13

Brown v. Louisana, 447 U.S. 323, 328

(1980). A rule which corrects any aspect

of a criminal trial which impairs its

truth-finding function and raises ques-

tions about the accuracy of guilty

verdicts is to be given retroactive

effect. Id.

The Fifth Amendment right to counsel

is not primarily concerned with trial

truth determination or reliability of

verdict. The paramount purpose of the

right to counsel is to compel police to

conduct custodial interrogations within

constitutional dictates and to allow a

suspect in custody to exercise his consti-

tutional rights. Retroactive application

of Edwards would not further this dual

purpose. Retrial of Stumes and possible

acquittal of those convicted on trust-

worthy evidence pursuant to then existing

14

constitutional standards does not serve

the purpose of the rule announced in

Edwards. Law enforcement officials had

justifiably relied on pre-Edwards stan-

dards concerning custodial interrogation,

and retroactive application of Edwards

would result in retrial of those whose

justified convictions have long since

become final.

Assuming arguendo, that this Court

decides that Edwards does apply retroac-

tively, the State urges this Court to

find that the Respondent initiated fur-

ther conversation with the police, after

having requested counsel, and that,

viewed in the totality of circumstances,

Respondent voluntarily, knowingly, and

intelligently waived his right to coun-

sel, and that any statements and

admissions made by Respondent were pro-

perly admitted into evidence.

15

ARGUMENTS AND AUTHORITIES

Edwards v. Arizona, supra, which

held that an in-custedy suspect who

asserts his right to 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 police,

should not be applied retroactively.

A. PARAMETERS OF CUSTODIAL _INTERROGA-

TION UNDER THE FIFTH AMENDMENT.

This Court, in its landmark decision

of Miranda v. Arizona, 384 U.S. 436, 86

§.Ct. 1602, 16 L.Ed.2d 694 (1966), estab-

lished the procedural guidelines necessary

to ensure that criminal suspects subject

to custodial interrogation would have the

opportunity to exercise their privilege

against self-incrimination. The Court

16

was particularly concerned with the

pressures custodial questioning could

have on one not assisted by an attorney,

and sought to restrain police from using

overbearing interrogation practices:

If the interrogation continues

without the presence of an

attorney and a statement is

taken, a heavy burden rests 2n

the government to demonstrate

that the defendant knowingly and

intelligently waived his privi-

lege against self-incrimination

and his right to retained or

appointed counsel. Escobedo

v. Illinois, 378 U.S. 4

note 14, 12,L.Ed.2d 977, 986, 84

$.Ct. 1758.

Miranda, 384 U.S. 475.

1 Escobedo was concerned with the

Sixth Amendment right to counsel, in

addition to the Fifth Amendment. As the

Sixth Amendment right to counsel does aot

attach until “adversary judicial proceed-

ings" have begun, see Brewer v. Williams,

430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d

424 (1977), and such proceedings had not

been commenced in Stumes' case, the Sixth

Amendment is not involved.

17

While the Court in Miranda saw

custodial interrogation as ...erently

coercive, it did not exclude all state-

ments obtained in such a_e setting.

Statements volunteered by a suspect are

admissible. Miranda, supra, 726.

The Court, in deciding Miranda was

necessarily concerned with the issue of

when a suspect had waived his rights to

Silence and to counsel. "A waiver is

ordinarily an intentional relinquishment

or abandonment of a known right or privi-

lege." Johnson v. Zerbst, 304 U.S. 458,

464, 58 S.Ct. 1019, 82 L.Ed.2d 1461

(1938). "The determination of whether

there has been an intelligent waiver of

the right to counsel must depend, in each

case, upon the particular facts and

circumstances surrounding that’ case,

including the background, experience and

18

conduct of the accused." Id. Noting the

high standards of the past concerning

wa.ver of constitutional rights, see

Johnson v. Zerbst, supra, and yet deter-

mined to protect those subject’ to

custodial interrogation, the Court issued

its Miranda opinion, an opinion which has

been refined through the years.

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

96 S.Ct. 321, 46 L.Ed.2d 313 (1975), this

Court confronted the situation where an

in custody suspect had invoked his right

to silence, but had not requested an

attorney. After once again being advised

of his constitutional rights, the accused

was questioned and made several incrimi-

nating statements. The Court found no

violation of Miranda, noting that the

police are prohibited from interrogating

a suspect after a momentary cessation

when the accused invokes his right to

19

silence. Michigan v. Mosley, supra, 423

U.S. 102. However, the Court stopped

short of mandating a blanket prohibition

against the taking of further statements:

We therefore conclude that the

admissibility of statements

obtained after the person in

custody has decided to remain

Silent depends under Miranda on

whether his ‘right to cut-off

questioning’ was ‘scrupulously

honored.' [Footnote omitted. |]

Mosley, supra, Id.

In addition to the strictures of

Miranda and the need to "scrupulously

honor" the assertion of rights by the

accused, this Court has continued to

examine the totality of circumstances

surrounding an alleged waiver of consti-

tutional rights and the need to assertain

whether a waiver has been made knowingly

and voluntarily. Fare v. Michael C., 442

U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d

197 (1979). At no time, however, has an

20

expressed written or oral statement of

Waiver been necessary to establish a

valid waiver of a suspect's Fifth Amend-

ment rights. North Carolina v. Butler,

441 U.S. 369, 373, 99 S.Ct. 1755, 60

L.Ed. 286 (1979). The State must present

evidence demonstrating that the Defendant

made a knowing and intelligent waiver.

Tague v. Louisiana, 444 U.S. 469, 100

$.Ct. 652, 62 L.Ed.2d 622 (1980).

In Rhode Island v. Innis, 446 U.S.

291, 100 §.Ct. 1682, 64 L.Ed.2d 297

(1980), this Court encountered the diffi-

cult problem of determining what

constitutes an interrogation for the

purposes of triggering the applicability

of Miranda.

In Innis, a suspect had been twice

advised of his constitutional rights at

the scene of arrest and had requested an

21

attorney. The suspect was placed in the

police automobile for transportation to

the station. During the trip the accused

indicated that he would point out the

location of the murder weapon. Shortly

before the defendant's statement, how-

ever, the officers in the automobile had

expressed, to each other, their concern

that the gun might be discovered by a

young child. While acknowledging that

the Miranda safeguards are required when

a suspect in custody is subjected to

interrogation, Innis, supra, 446 U.S.

300, the Court held that no interrogation

had occurred. Innis, supra, 302. While

the accused may have been exposed to

"subtle compulsion,” that was insuffi-

cient to establish a violation of

Miranda. Innis, supra, 303.

22

Edwards v. Arizona, 451 U.S. 477,

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

reiterated the Court's adherence to the

Miranda standards. While once again

noting that the waivers of counsel must

be voluntary, knowing and intelligent,

Edwards, supra, 451 U.S. 483, this Court

set its standard for custodial interroga-

tion under the Fifth Amendment:

. »« we now hold that when an

accused has invoked his right to

have counsel present during cus-

todial interrogation, a valid

waiver of that right cannot be

established by showing only that

he responded to further police-

initiated custodial interroga-

tion even if he has been advised

ef his rights. We further

hold that an accused, such 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. [Footnote omitted. ]}

23

Edwards, supra at 484.

The court went on to state that the

"totality of the circumstances" must be

examined to determine if a valid waiver

had occurred and that the accused, not

the police, must have reopened dialogue

with the authorities. Edwards, supra at

387, n.9. Edwards, did not however,

establish a “per se” rule concerning the

waiver of right to counsel. Wyrick v.

Fields, __—CiU:«.S. , 103 $.Ct. 394, 74

L.Ed.2d 214 (1982).

Finally, in Oregon v. Bradshaw,

U.S. _, 163 $.Ct. 2630, £.86.2¢

_._-« (1983), the Court refined Edwards and

indicated how the state could meet its

“heavy burden” under Miranda of showing a

valid waiver of the right to counsel.

This Court clearly stated that the initia-

tion of a conversation with the police by

24

the accused did not amount to waiver,

Bradshaw, supra, 103 S.Ct. at 2834. The

two-step analysis set out by the plur-

ality indicated that once an accused,

having indicated his desire to have

counsel, “initiates” a conversation with

police, the court must determine whether

a vaiid waiver took place by examining

the totality of the circumstances. In

other words, initiation of a conversation

is not sufficient in itself to constitute

a waiver.

Whether conversation has been ini-

tiated, thereby allowing further

interrogation, depends upon whether the

accused sought to open up “a more gen-

eralized discussion relating directly or

indirectly to the investigation."

Bradshaw, supra at 2835. Statements by

the accused “relating to routine inci-

dents of the custodial relationship, will

25

not generally ‘initiate’ a conversation

in the sense in which that word was used

in Edwards." Id.

In its opinion reversing the

district court's denial of Stumes' appli-

cation for habeas corpus relief, the

Eighth Circuit Court of Appeals was

particularly concerned with his admis-

sions of October 2, 1973. The fact that

Stumes told the detectives at the end of

the day on October 1, 1973, that he

didn't want to talk about Joyce Hoff's

death until he spoke with his attorney

indicated, at least to the appeals court,

that Stumes should not have been inter-

rogated further until counsel was

provided. Stumes v. Solem, 671 F.2d 1150

(8th Cir. 1982). The court held that

Stumes' rights had been violated on the

following day, om the trip back to Siovx

26

Falls, South Dakota, when the detectives

spoke to him concerning the Hoff homi-

cide. Id.

The Eighth Circuit has misconstrued

the Edwards decision. Edwards did not

establish a “per se" rule prohibiting

interrogation once a suspect has invoked

his right to counsel. Whether an accused

may be later interrogated depends upon

whether he has initiated a further ex-

change with the police, a fact to be

determined by viewing all of the relevant

circumstances.

Stumes, on October 2, 1973, was

again advised of his constitutional

rights before the journey from Green Bay,

Wisconsin, to Sioux Falls, South Dakota,

had barely begun. As the district court

pointed out, Stumes was not a novice in

dealing with law enforcement. 511

F.Supp. at 1324. He was aware of the

27

consequences of any comments he might

make.

Stumes himself testified at his

trial that direct interrogation did not

take place during the _ trip, (Trial

Transcript 624) and that “general conver-

sation” engaged the travelers. Trial

Transcript 625. When Stumes suffered the

"little conflict" with his emotions later

on in the afternoon of October 2, 1973,

and stated that he “couldn't understand

how anybody would want to kill Joyce,"

and that "the taking of a human life is

so useless," he was not being coerced in

any manner. There had been no interroga-

tion at that time. In fact, as Stumes

testified:

I don't think there was any

conversation in the car for

maybe ten or fifteen minutes.

[before he made his statement].

Trial Transcript 626.

28

Stumes had clearly, within’ the

teachings of Edwards, ‘initiated’ further

dialogue with the p:lice. Stumes then

related how Joyce Hoff had died on

September 17, 1973. Trial Transcript

42-43. Detective Green then admonished

Stumes that his attorney would not want

him to make a statement to the police,

but Stumes indicated his willingness to

ignore his counsel's advice and talk to

anyone he pleased. Trial Transcript 44.

Viewed within the totality ot cir-

cumstances, Stumes waived his right to

counsel. He had been given his Miranda

warnings, not only on October 2, but the

day before, and on September 27, 1973,

when he was arrested. Trial Transcript

665. He was experienced in dea’ing with

law enforcement and the courts and, at

the time he made his statements and

29

admissions, there had been no conversa-

tions within the automobile for approxi-

mately fifteen minutes. In addition, as

the district court found, Stumes previous

request to terminate questioning were

"scrupulously honored" and he was free to

make the same request during the trip to

Sioux Falls, South Dakota. Finally,

Stumes' statement that he would talk to

anyone he wanted, indicated his willing-

ness to discuss the homicide with the

police.

After Stumes had been placed in the

Minnehaha County Jail in Sioux Fails,

South Dakota, on the evening of Octo-

ber 2, 1973, he made statements that

Joyce Hoff's death had been accidental

and that he was not a vicious killer.

Trial Transcript 46. These statements

were made only after Stumes had requested

30

that Detective Skadsen come to his cell.

Id. These statements were not the result

of any questioning by police. Clearly,

Stumes had initiated a new dialogue with

the police. Viewed in the totality of

the circumstances, i.e., an experienced

criminal who had been previously given

Miranda warnings and told that he was a

suspect in the Hoff homicide, (Trial

Transcript 619) and that he was not

subject to any coercion at the time he

spoke to Detective Skadsen, there can be

no doubt that Stumes waived his right to

Silence and to counsel.

While the give and take of conversa-

tion during the trip to Sioux Falls may

have exerted a “subtle compulsion," see

Rhode Island v. Innis, supra, upon the

Respondent, such influences we.e not

31

sufficient to induce Stumes to involun-

tarily incriminate himself. Even a

retroactive application of Edwards justi-

fies the denial of habeas corpus relief

to the Respondent.

B. eee APPLICATION OF A_ NEW

fe) CRIMIN OC S

U BY UNI Ss Ss

CONS ON.

It is clear that the Constitution

neither prohibits nor requires retrospec-

tive effect of a constitutional rule of

criminal procedure. Linkletter v. Walker,

a. «(6UVLS. «6G, 49. @B 8.6 1783. B84

L.Ed.2d 601 (1965); Tehan v. United

States ex rel. Shott, 382 U.S. 406, 86

S.Ct. 459, 15 L.Ed.2d 453 (1966); Brown

v. Louisana, 447 U.S. 323, 100 S.Ct.

2214, 65 L.Ed.2d 159 (1980). The ques-

tion of retroactivity is not determined

by the particular provision of the

Constitution on which the new rule is

32

based. Brown v. Louisana, supra, 447 U.S.

327. The court may make a rule prospec-

tive when the exigencies of the situation

so require. Johnson v. New Jersey, 384

U.S. 719 (1966).

Where the major purpose of new

constitutional doctrine is to

overcome the aspect of the

criminal trial that substan-

tially impairs the truth-finding

function and so raises serious

questions about the accuracy of

guilty verdicts in past trials,

the new rule has been given

complete retroactive effect.

Williams v. United States, 401 U.S. 646,

653, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971)

(plurality opinion of White, J.). How-

ever, when the purpose of the new rule is

not to avoid inaccurate guilty verdicts,

but other reasons exist for its establish-

ment, then retroactive effect is not

prescribed. Id.

33

This Court has set out its test for

determining when retrospective applica-

tion of a new standard is applopriate:

« test consistently

applied by the court to decide

whether a new constitutional

doctrine should be applied

retroactively contemplates the

consideration of three criteria:

(a) the purpose to be

served by the new

standards, (b) the

extent of the reliance

on law enforcement

authorities on the old

standards, and (c) the

effect on the adminis-

tration of justice of

a retrospective appli-

cation of the new

standards. Stovall v.

Denno, 388 .

297, 18 L.Ed. 24 1199,

87 S.Ct. 1967 (1967).

Brown v. Loulsana, supra, 447 U.S. 328.

The purpose of the new rule is the

most important of the above criteria.

Id. It is a matter of degree concerning

the extent to which the purpose of a new

34

rule requires retroactive application.

Id. A rule which prevents unfairness at

trial is not automatically to be applied

retroactively. Id. at 329. "In short,

'[t]he extent to which a condemned prac-

tice infects the integrity of the

truth-determining process at trial is a

question of probabilities." [citations

omitted]. "And only when an assessment

of those probabilities indicates the

condemned practice casts doubt upon the

reliabilty of the determinations of guilt

in past criminal cases must a new pro-

cedural rule be applied retroactively."

Id. See also, Hankerson _ v. North

Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53

L.Ed.2d 306 (1977).

While the above discussion sets out

this Court's general principals concern-

ing retroactive application of a new

constitutional rule, there have been many

35

cases dealing with the issue of retro-

activity of particular constitutional

guarantees. Among these decisions are

those involving the Fifth Amendment's

right to counsel.

This Court has held on many occa-

sions that the Miranda decision is not

required to be applied retroactively.

Johnson v. New Jersey, supra; Davis v.

North Carolina, 384 U.S. 737, 86 S.Ct.

1761, 16 L.Ed.2d 895 (1966); Clewis v.

Texas, 386 U.S. 707, 87 S.Ct. 1338, 18

L.Ed.2d 423 (1967).

In Johnson v. New Jersey, supra, the

petitioner asserted the retroactivity of

Escobedo. Miranda having been decided

one week before the Court's opinion in

Johnson was also discussed. This Court

was concerned with the availability of

other safeguards to protect the integrity

36

of the truth-determining process at

trial, but concluded that neither

Escobedo nor Miranda should be retro-

actively applied. This Court recognized

the retroactive application would not

have the “justifiable effect of curing

error committed in disregard of constitu-

tional rulings already clearly fore-

shadowed." Johnson, supra, 384 U.S. 731.

In addition, the Court realized that the

Py ws 6 retroactive application of

Escobedo and Miranda would seriously

disrupt the administration of our crim-

inal laws. It would require the retrial

or release of numerous prisoners found

guilty by trustworthy evidence in con-

formity with previously announced

constitutional standards." Id.

The Miranda rules have also been

held unapplicable to a retrial of a case

37

Originally tried before the Miranda

decision was rendered. Jenkins v.

Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23

L.Ed.2d 253 (1969). This Court's reti-

cence to impart retroactive effect to its

decisions has extended to other constitu-

tional guarantees. See, for example,

Stovall v. Denno, supra, (rule requiring

counsel at identification proceedings

prospective only); Mackey v. United

States, 401 U.S. 667, 91 S.Ct. 1160, 28

L.Ed.2d 404 (1971) (privilege against

self-incrimination valid defense to

charge of failure to register as gambler

and pay wagering excise taxes held not

retroactive) .*

2 Two state courts agree that Edwards

should not be applied retroactively. See

State v. McCloskey, 90 N.J. 18, 446 At.2d

1201 (1982), and State v. Shea, 421 So.2d

200 (La. 1982).

38

Applying the principles contained in

the foregoing discussion clearly mili-

tates against the retroactive appli::ation

of underlying Edwards. The Edwards

decision does not represent only an

amplification of Miranda. In Edwards,

this Court focvsed on the "“initiation"

aspect of custodial interrogation. The

emphasis on who initiated further dia-

logue with the accused had not been the

most significant consideration in the

cases prior to Edwards. That decision,

however, brought the initiation issue to

the forefront. Police, in addition to

the guidelines stated in Miranda, must

now be careful not to initiate a conver-

sation with a suspect who has invoked his

right to counsel. Before Edwards, a

Simple inquiry as to whether an accused

had changed his mind and wished to speak

39

to the police in the absence of counsel,

would likely not have implicated the

suspect's constitutional rights. A

similar inquiry, under Edwards, incurs

the risk of being characterized as

police-initiated interrogation by a

reviewing court, and any statements made

by the accused liable to suppression.

The initiation issue was simply not

foreshadowed by other decisions of this

Court, and the prohibition on statements

made after counsel has been requested

represents new constitutional doctrine.

In applying the criteria utilized to

determine whether a rule is to be applied

retroactively, it is important to note

that preservation of the truthfinding

process at trial remains a paramount con-

Sideration. The purpose of a new rule

should be viewed in that context.

40

The purpose of the constitutional

doctrine established in Edwards is not

solely connected with ensuring reliable

results at trial. Rather, the prohibi-

tion against using confessions obtained

in the absence of counsel can serve

multiple ends. For example, one purpose

served by the Fifth Amendment's right to

counsel is that of deterring police

misconduct in the custodial setting. The

police, under Miranda, know that an

illegally obtained confession is subject

to exclusion. In this manner, the

Mira:.tja and Edwards decisions served to

motivate police to conform their behavior

to constitutional dictates. Related to

this consideration is the extremely

important end of ensuring that the puta-

tive defendant will have the opportunity

to exercise his right to counsel. The

41

concerns above--deterring police miscon-

duct and ensuring that the suspect may

exercise his constitutional rights--do

not directly implicate truthfinding at

trial. If, for example, a justly accused

individual whose confession would provide

the police with perhaps their only evi-

dence of his involvement in a crime,

exercises his right to counsel and to

remain silent, and does not give his

would-be interrogators a statement, he

may well be acquitted if tried. In

addition, a guilty individual whose

custodial confessions, taken in violation

of his rights, were suppressed and ex-

cluded from evidence might also be

acquitted, if no other available evidence

of his guilt were available.

The above examples illustrate that

the ensuring of reliable verdicts at

trial is subordinated, under the Fifth

42

Amendment, to the concerns of conforming

police conduct to constitutional require-

ments and guaranteeing that suspects may

exercise their constitutional rights. If

securing the truth at trial was the sole

purpose of the Fifth Amendment, then

truthful confessions, even if obtained in

violation of a defendant's constitutional

rights, would always be admitted into

evidence. The purpose of the Edwards

rule is to exclude confessions, even if

truthful, obtained outside of constitu-

tional dictates. The rule in Edwards,

not being directed to repairing any part

of the criminal trial which impairs the

ascertaining of truth and not concerned

with reliability of verdicts, should not

be applied retroactively.

As to the second part of the retro-

activity test, law enforcement authorities

43

have relied quite heavily upon the pre-

Edwards standards. Those standards

clearly established the consequences of

obtaining a custodial confession from a

suspect who had requested counsel. Those

cases did not, however, place such an

emphasis upon the initiation of further

dialogue with an accused. Nor did they

place the police at such constitutional

peril for simply inquiring whether a

suspect, previously unwilling, had

changed his mind and wanted to talk to

the police. Edwards created such uncer-

tainty and narrowed the area of accept-

able police conduct during custodial

interrogation. This Court's decision in

Edwards was not foreshadowed by previous

cases and upset reliance on what was

thought to be clear precedent.

The final consideration regarding

retroactivity is that of the effect the

“tot

retrospective application of the new rule

will have on the administration of jus-

tice. This Court, in Williams v. United

States, 401 U.S. 646 (1971), refused to

apply Chimel v. United States, 395 U.S.

752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)

retroactively reasoning that:

. . ordering new trials.

would have involved not only

expense and effort but the

inevitable risk of unavailable

witnesses and faulty memories:

the authorities might not have

had the evidence they once had

and might have been foreclosed

from obtaining other evidence

that might have secured had they

known the evidence they were

using was constitutionally

suspect.

Williams, 401 U.S. 654.

The above is particularly pertinent

to this appeal. The victim in this case

was killed ten years ago. If the state

has to retry Stumes it will have to

attempt to locate witnesses, and those

45

witnesses will have to try to recollect

the events of a decade ago. Other types

of evidence, such as hair samples taken

from the Respondent and the victim, will

have to be located, if they still exist.

Obtaining an evidentiary substitute for

Stumes' confession will be a difficult,

if not impossible, task. The cost of

retrying criminals, whose convictions law

enforcement officials had long considered

final, may well include allowing guilty

individuals to walk free.

The evidence in this case does not

indicate that the jury reached an unre-

liable verdict. For example, Stumes

testified at trial that he went to Joyce

Hoff's apartment in the late night hours

of September 16, 1973, had sexual inter-

course with her and remained in the

apartment until the following morning.

Trial Transcript 604-614. Her body was

46

discovered on the afternoon of Septem-

ber 17, 1973. Hair found on the victim's

body was identified as metching hairs

taken from Stumes. Trial Transcript

354-356. These items of evidence, among

others, in combination with his confes-

sion, indicate that Stumes was guilty of

killing Joyce Hoff.

Also, time for direct review of

Stumes' conviction has long since passed

and in this case represents a collateral

attack by way of habeas corpus, on his

conviction. An approach to the retroac-

tivity issue which is fair to both the

individual who seeks review of his con-

viction and the prosecution is noted by

Justice Powell in his concurring opinion

in Hankerson v. North Carolina, 432 U.S.

248. That approach would have courts

apply a new rule retroactively in cases

47

pending on direct review, while cases on

collateral review would be judged by the

rule existing when conviction became

final.?

Finally, the retroactive application

of Edwards is not mandated by the lack of

safeguards to protect the rights of

criminal suspects. The Miranda standards

are still intact and serve to adequately

protect those subject to custodial inter-

rogation. For example, an individual who

has made statements allegedly induced by

unconstitutional police conduct is free

to raise his contentions in a pretrial

motion to suppress. A finding that the

3 Justice Harlan had first suggested

such an approach in Mackey v. United

States, supra, 401 U.S. 675-702. He,

however, saw an exception to this

approach for cases such as Miranda.

48

statements were not made _ knowingly,

intelligently, and voluntarily will

result in their suppression. In sum, the

continued application of Miranda and its

pre-Edwards progeny militate against the

retroactive application of Edwards.

| CONCLUSION

Within the perameters of Brown v.

Louisana, supra, and Linkletter v. Walker,

supra, retroactive application of Edwards

is clearly improper and not mandated by

the Constitution.

Therefore, the State of South Dakota

respectfully requests that this Court

reverse the Judgment of the Eighth

Circuit Court of Appeals and find that

49

Respondent was not entitled to habeas

corpus relief under 28 U.S.C. § 2254.

LEA are

Assistant Attorney General

State Capitol

Pierre, South Dakota 57501-5090

Telephone (605) 773-3215