Petition — Minnesota v. Brown
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IN THE
UNITED STATES SUPREME COURT . —
No.
o_o
OCTOBER TERM 1981
STATE OF MINNESOTA,
Petitioner,
v-
JOHN HENRY BROWN,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF
THE STATE OF MINNESOTA
WARREN R. SPANNAUS
Minnesota Attorney General
TOM FPOLEY
Ramsey County Attorney
By: STEVEN C. DeCOSTER
Assistant County Attorney
200 Lowry Square
St. Paul, Minnesota 55102
(612) 298-5464
Counsel for Petitioner
QUESTIONS PRESENTED FOR REVIEW
1. Whether the rule in
Edwards v. Arizona, U.S , 10l
S.Ct. 1880, 68 L.Ed.2d 378 (1981)
should be applied retroactively
to suppress a statement made to
police officers after the suspect
had clearly and unequivocally
waived the right to the presence
of counsel he had asserted the
day before.
State Court Held: In the
Affirmative.
2. Whether Edwards should be
construed to permit questioning
of one who earlier has asked for
an attorney's presence where the
strict waiver requirements of
Johnson v. Zerbst, 304 U.S 458,
58 S.Ct. 1019, 82 L.Ed.2d 1461
i
(1938) relating to voluntary
relinguishment of a known right
are, the next day, fully
satisfed.
State Cou. t Held: In the
Negative.
3. Whether an accused's
inculpatory statement which was
volunteered, not in response to
custodial interrogation, but
after the statements of the
victim and her mother were read
to him by a police officer, may
be received in evidence
notwithstanding the fact he had
the day before asked to see an
attorney?
State Court Did Not Rule
ii
TABLE OF CONTENTS
Page
Questions Presented for Review i
Opinions Below 1
Judgment for Which Review
is Sought 2
Jurisdiction 3
Statement of Fact 5
Statement of the Case 13
Argument
THE STATE SATISFIED ITS HEAVY
BURDEN OF DEMONSTRATING THAT
APPELLANT'S DECISION TO TALK
TO SERGEANT RICHARD WARD WITHOUT
AN ATTORNEY PRESENT WAS FREELY
AND VOLUNTARILY MADE 31
Conclusion 56
Appendix
iii
TABLE OF AUTHORITIES
Page
MINNESOTA DECISIONS:
State v. Brown, N.W.2d
(Minn. No 82-144, filed April
6, 1982) 28
Federal Decisions:
Adams v. United States ex rel.
McCann 317 U.S. 269, 63 S.Ct.
236, 87 L.Ed. 268 (1942) 48
Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23
L.Ed.2d 238 (1969) 47
Brady v. United States, 397
U.S. 742, 90 S.Ct. 1463, 25
L-Ed.2d 747 (1970) 47,48
Brewer v. Unitea States, 430
U.S. 387, 97 S.Ct. 1232, 51
L.Ed.24 424 (1977) 42
Carnley v. Cochran, 369 U.S.
506, 82 S.Ct. 884, 8 L.Ed.2d 70
(1962) 36,47
Edwards v. Arizona, U.S.
, 101 S.Ct. 1880, 68 L.Ed.2d 27,
378 (1981) 28,42,
46,49,
50
iv
Escobedo v. State of Illinois,
378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed.2d 977 (1964) 35,51
Fare v. Michael C. 442, U.S.
707, 99 S.Ct. 2560, 61 L.Ed.2d
197 (1979) 45
Paretta v. California, 422 U.S.
806, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975) 48
Gideon v. Wainwright, 372 U.S.
335, 82 S.Ct. 792, 9 L.Ed.2d
799 (1963) 51
Glasser v. United States, 315
U.S. 60, 62 S.Ct. 457, 86
L.Ed. 680 (1942) 37
Johnson v. New Jersey, 384 U.S.
719, 86 S.Ct. 1772, 16 L.Ed.
882 (1966) 51
Johnson v. Zerbst, 304 U.S. 458,
58 S.Ct. 1019, 82 L.Ed.2d
1461 (1938) 29,35,44
Linkletter v. Walker, 381 U.S.
618, 35 S.Ct. 1684, 14 L.Ed.2d
601 (1965) 51
Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081
(1961) 51
McMann v. Richardson, 397 U.S.
759, 90 S.Ct. 1441, 25 L.Ed.2d
763 (1970) 48
Massiah v. United States, 377
U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964) 42
Michigan v. Mosley, 423 U.S.
96, 96 S.Ct. 321, 46 L.Ed.2d
313 (1975) 38,46
Miranda v. Arizona, 384 U.S. 13,14,
436, 86 S.Ct. 1602, 16 L.Ed.2d 16,19,
694 (1966) 31,37,
38,40,
46,47,
48,51,
52,56
North Carolina v. Butler, 441
U.S. 369, 99 S.Ct. 1755, 60
L.-Ed.2d 286 (1978) 45
Parker v. North Carolina, 397
U.S. 790, 90 S.Ct. 1458, 25
L.Ed.2d 785 (1970) 48
Rhode Island v. Innis, 466 U.S.
291, 100 S.Ct. 1682, 64 L.Ed.2d
297 (1980) 30,55
Tollett v. Henderson, 411 U.S.
258, 93 S.Ct. 1602, 86 L.Ed.2d
235 (1973) 48
OTHER
Federal Rules of Criminal
Procedure ll, 32(a)(2) 47
vi
Minnesota Rules of Criminal
Procedure, Rule 20 24
United States Constitution,
Amendment V 3,31
United States Constitution,
Amendment VI 42
United States Constitution,
Amendment XIV 3, 31, 42
vii
IN THE
UNITED STATES SUPREME COURT
No.
OCTOBER TERM 1981
STATE OF MINNESOTA,
Petitioner,
Vv.
JOHN HENRY BROWN,
Respondent.
OPINIONS BELOW
State v. Brown, 313 N.W.2d 207 (Minn.
1981) remanded by the matter for
consideration in the District Court,
State of Minnesota.
State v.Brown, Order, Sidney P.
Abramson, J., District Court, State of
Minnesota, Second Judicial District,
January 25, 1982, Appended, (suppressing
evidence).
State v. Brown, 317 N.W.2d 714 (Minn.
1982) affirming order of suppression.
JUDGMENT FOR WHICH REVIEW IS
SOUGHT
Judgment of the Supreme Court of
the State of Minnesota suppressing
evidence in the nature of confessions of
the accused under the Fifth and
Fourteenth Amendments to the
Constitution of the United States and
remanding the cause to the District
Court of the State of Minnesota for a
new trial, entered on April 20, 1982.
Jurisdiction in this Court is
invoked under 28 U.S.C. §1257(3).
Constitutional provisions
involved:
AMENDMENT V.
Capital crimes; double jeopardy;
self incrimination; due process;
just compensation for property
No person shall be held to
answer for a capital, or
otherwise 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 in time of War
or public danger; nor shall any
person be subject for the same
offence to be twice put in
jeopardy of life or limb; nor
shall be compelled in any
criminal case to be a 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.
United States Constitution,
Amendment XIV, §l.
3
§l. Citzenship rights not to be
abridged by states
Section 1. All persons born or
naturalized in the United States
and subject to 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 immunities of
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
protection of the laws.
STATEMENT OF PACT
On March 23, 1980 Jeffrey and
Christine Krier lived at 226 Charles
Avenue in the City of St. Paul with
their four children, Jennifer, aged 3
1/2, James, aged 1 1/2, and recently
born twin daughters, Catherine and
Elizabeth. (T.T. 84) Appellant John
Henry Brown lived in a duplex at the end
of their block on Charles; as the
husband of Christ. ne's ex-boyfriend's
sister and a friend of Jeffrey's
brother-in-law, Mike Gaske, he often
visited the Krier home in the evening -
as much as every other night. (T.T.
85-86, 101-102)
Appellant Brown came
over during the day on the
23rd to ask the Kriers' permission for
Jennifer to come over to help him fix
his doorbell; he lived in the upper unit
of the duplex and said that she would be
helpful in standing at the door and
ringing the bell at his request as he
worked on it. (T.T. 87, 102) Brown
agreed to bring her back soon, as supper
(the noon meal apparently) was almost
ready. (T.T. 87) Fifteen or twenty
minutes later, he called to ask if
Jennifer could have soda pop and
Christine agreed - if he also promptly
got her home. (T.T. 88) Jennifer
returned in fifteen minutes, kind of
nervous and fidgeting - not her usual
demeanor. (T.T. 88-89)
Actually, appellant was using the
story about Jennifer helping him fix the
doorbell as a pretext to get her to his
residence alone. (T.T. 60-61) He took
Jennifer into his bedroom, laid her on
his bed, removed her elastic pants and
underpants, cleaned her vaginal and
buttocks area with a wash cloth, and
then licked both the areas of her vagina
and buttocks with his tongue. He then
told Jennifer to put his penis into her
mouth and to suck on it and she
complied. (T.T. 38-39, 60-61, 76-77,
89-90, 103-104) Before taking her home,
he gave her a bottle of soda pop and a
quarter (25¢) "for sucking his peter",
telling her to tell no one what had
happened. (T.T. 38-39, 61-62, 90-91)
Appellant agreed he had done the
same things three of four days later to
Jennifer at her apartment. (T.T. 61)
In fact, Jennifer did promptly
tell her mother Christine what appellant
had done. (T.T. 89, 94) Jennifer was
able to communicate with her mother both
by naming and pointing to the parts of
her body he had touched and licked; she
knew the name of the part of his body he
had asked her to suck. (T.T. 77, 89-90)
Jennifer wanted the police to be
called right away but her parents
delayed, Christine because she didn't
want her daughter to "get involved" and
Jeffrey because he wanted to confront
appeliant directly first - an intention
he actually never managed to carry out.
(T.T. 91, 104, 105, 107) Neither parent
doubted that Jennifer was telling the
truth. (T.T. 104) Actually, all that
was done right away was that Christine
put the quarter in Jennifer's piggy bank
for her. (T.T. 91)
One to three weeks later,
Christine Krier reported to police not
only the acts appellant had committed
with Jennifer, but that he had been
stealing property from his employer, St.
Paul-Ramsey Hospital. (T.T. 92, 96-97)
Christine and appellant Brown had been
having a sexual relationship with each
other over the years they knew each
other, and she turned him in because he
was bothering her with
telephone calls and unwanted visits.
(T.T. 92, 94, 109)
Police came immediately and
arrested appellant Brown when he walked
into the Krier home after work at about
4:30 p.m., carrying a bag full of
medical supplies and equipment that the
Kriers indicated, and Brown freely
admitted, he had stolen at work. (T.T.
39-40, 45-46, 50-51)
Jennifer Krier on that day, March
27, 1980, 1 again told one of the
arresting officers, Robert Bradish, what
appellant had done to her in the same
terms she had used to tell her mother.
(T.T. 36-39) She repeated it to
Sergeant Carolen Bailey of the Crimes
Against Persons Unit on March 3l,
assuring the Sergeant that she
understood the terms she was using and
the acts she was describing. (T.T.
75-77)
lsince police were called on March 27,
1980, without doubt, the Kriers must
have been mistaken earlier when they
said the crime took place on March 23 or
when they said it took place over a week
before appellant's arrest.
10
On the way to police station after
appellant's arrest, Officer
Bradish - who had encountered appellant
before - said to him: “Well, you really
got yourself into a mess this time, John
Henry." (T.T. 42) After pointing out
that he might be killed if he were sent
back to prison, Brown asked who the
"supposed" victim of his criminal sexual
conduct was and Bradish told him: The
Krier child. Appellant just chuckled.
(T.T. 42-43) (The fact appellant asked
who he was charged with molesting
wouldn't point to his innocence, given
the fact he admitted, as a part of his
pre-sentence evaluation, to "a long
history of attaction to and being sexual
with children dating back to his early
youth", and that among “his many child
vicitms,... he very hesitantly admitted
ll
to being sexual with his own children.)
12
STATEMENT OF THE CASE
Immediately after arresting
appellant in the Krier kitchen on March
27, 1980 at 4:30 p.m., for theft and
criminal sexual conduct, Officer Rhio
Beckman handcuffed him and from memory
gave him his four Miranda rights (T.R.
7, 14) When Beckman requested appellant
consent to a search of his apartment for
other stolen goods, appellant said he
didn't want to say anything until he saw
a lawyer. (T.R. 7, 15) The interview
immediately ended. Later, in the squad
car, after Officer Bradish had told him
the Kriers' little girl was the victim
in the criminal sexual conduct charge,
appellant again said he didn't want to
talk anymore and that he wanted an
attorney. (T.R. 16, 18) Bradish ended
the interview immediately. (T.R. 16)
13
At no time to any officer did appellant
say he was represented by an attorney or
refer to any particular attorney he
wanted to speak to. (T.R. ll, 17)
To both arresting officers,
appellant appeared to be in possession
of his faculties - able to comprehend
and to communicate and not under the
influence of anything. (T.R. 11-12,
19-20)
At about 8:00 p.m. that evening,
the 27th, Sergeant Joseph Pelton, in
charge of security at St. Paul-Ramsey
Hospital, interviewed appellant in jail.
After appellant was read his four
Miranda rights from the standard police
card, he acknowledged he understood his
rights, and without mentioning a lawyer,
agreed that he wished to talk with the
Sergeant. (T.R. 22-24) After fully
14
answering all questions about his theft
of property from the hospital,
appellant, claiming no more hospital
property was at his home, signed a
consent to search which Pelton acted
upon, finding and seizing blankets, a
stethoscope, and other apparent hospital
property. (T.R. 24-27) The idea to
search was appellant's; if you don't
believe me, go ahead and look, he said.
(T.R. 24, 27)
Again, Sergeant Pelton believed
appellant was in possession of his full
faculties and had no trouble
communicating with him. (T.R. 29)
The next morning, March 28, at
about 9:00 a.m., Sergeant-Investigator
Richard Ward of the Crimes Against
Persons Division interviewed appellant,
again informing him from memory of his
15
Miranda rights. “I informed Mr. Brown
that he had a right to remain silent and
that anything he told me can and will be
used against him in a court of law; that
at the time he did not have to talk to
me; if he did not wish to without an
attorney present. If he wished to have
an attorney, I would stop the
conversation and an attorney would be
furnished him. If he could not acquire
an attorney, one would be furnished him
by the court.” To this, appellant
stated “that he understood his rights
and that he wanted to talk to me about
the case." (T.R. 32, 11. 11-18, 21-22)
Even after this, Sergeant Ward had
appellant read out loud each of the four
Miranda warnings on the St. Paul Police
standard waiver form and initial each as
he read it, acknowledging that he
16
understood it. (T.R. 33)
Brown appeared normal and rational
and seemed to understand and to answer
questions coherently and logically.
(T.R. 32-33)
Appellant made no special requests
of Sergeant Ward - other than to ask the
sergeant to write his statement for him
- and at no time mentioned an attorney
in any way. (T.R. 33-34)
After eliciting the facts about
appellant's thefts from St. Paul-Ramsey
Hospital, Sergeant Ward asked appellant
about the criminal sexual conduct
charges. Appellant requested he read
the charges the Krier girl and her
mother had made against him, and when
Ward did, appellant got a sorrowful
look, started to cry a bit and said he
needed help. After the Sergeant
17
complied with appellant's request to
read the complaint a second time,
appellants blurted out that it was
all true, admitted that the details
Jennifer Krier had reported to her
mother were just what had happened.
(T.R. 35-36)
Appellant said that he felt very
bad - like an animal - and that he
needed help “that's why he was
telling me this.” (T.R. 36)
Sergeant Ward wrote the statement
on three pages, had appellant go over
it, signing each of the three pages
to acknowledge they were correct.
Appellant refused the copy of the
written statement Ward offered him,
saying Ward should keep it for him,
he fearing adverse consequences if
the statment fell into the hands of
18
another inmate while he was in jail.
(T.R. 37)
The written Miranda waiver and
signed statement were received at
Rasmussen hearing, as State's Exhibit
B. (T.R. 38)
Sergeant Ward had briefly reviewed
Bradish and Beckman's report and
wasn't aware of the reference to
appellant's earlier request to see an
attorney. (T.R. 39-40) Appellant
had, of course, cooperated in
aswering all of Sergeant Pelton's
questions the night before. (T.R.24)
Ward said he would have gone to
appellant in any event and asked if
he wanted to waive his rights; had
appellant asked to see a lawyer on
the morning of the 28th Ward would
have immediately ended the
19
conversation. (T.R.40)
Only after all of the above events
and occurred was appellant charged
with criminal sexual conduct in the
first and second degrees, and by
separate complaint with two counts of
felonious theft.
Appellant testified at the
Rasmussen hearing and did not
contradict the officers' testimony
materially, other than to claim that
he first admitted to Sergeant Ward he
had invited Jennifer Krier into his
home but denied molesting her, at
which time he claimed Ward calked of
"getting the sexual deal dropped."
He did agree that he ultimately
admitted the charges but only when
asked for the third time; depressed
and crying he broke down under the
20
emotional pressure. (T.R. 50-52)
The Rasmussen hearing was held on
May 12, 1980 before the Honorable
Harold W. Schultz, who found on the
above evidence that the State had
satisfied its heavy burden of
demonstrating the free and voluntary
nature of appellant's waiver of his
right to an attorney's presence
during custodial questioning.
Judge Schultz concluded:
"I think the essence of this
matter involves, of course, the
statement taken by Officer Ward.
And there I was happy that you,
Mr. Hanzel, (defense counsel)
raised some questions as to the
normal procedure that might have
been used by the police
department where it was brought
to their attention that somebody
had asked to see a lawyer.
Because that question existed in
my mind, too, what is the normal
21
procedure.
Well, I thought that the
officer very candidly indicated
that if he was aware of that that
he would still go in and ask
whoever the particular defendant
may be whether he wants to see a
lawyer. I didn't get the
impression that Officer Ward
indicated any desire on his part
to try to change anybody's mind.
I thought it was a recognition,
very obviously, of the fact that
very often people do change their
minds.
This is not, by any stretch of
the imagination, the first case
that I have heard about or
experienced where somebody
changes their mind, even a matter
of hours, let alone a matter of a
day, where at first blush they
say, no, they weren't going to
say anything, weren't going to
make a statement, but later they
stated that they are.
I think the whole essence of
the problem is, is there an
Obligation on the police
department somewhere along the
line when somebody requests a
lawyer to say from that moment on
we will never do a single thing
with you until you have had the
opportunity to see a lawyer. If
that's not the law, then I think
22
the police department,
considering the circumstances of
a particular case; have a right
in a sense to say, do you want to
sign this form indicating that
you refuse to make a statment or
that you want a lawyer or for any
number of things that they might
want to do.
So, under the circumstances,
with Officer Ward primarily being
interested in the presentation of
this case to the County
Attorney's office that had to do
with a theft, and when Mr. Brown
did not reiterate or take the
position that he wanted a lawyer,
I think he did what was perfectly
normal and is to be expected. He
asked him some questions.
Now, it's a little vague as to
exactly how they slid into the
mattec of the criminal sexual
conduct information.
Nevertheless, slide into it they
did. This was voluntary sliding
on the part of Mr. Brown, in my
judgment, because he indicated
with his initials that he
understood his rights. He
indicated by his signature on
both page 1 and 2 before any
comment was made, and by then his
signature on page 3 when they did
get into the matter that he
seemed to be speaking without
any reservation.
23
He certainly does have a right
to change his mind. What might
have looked on one day as some
sort of a problem may have been
diminished in his eyes as a
problem. Human nature being what
it is, Mr. Brown, who apparently
has had some experience with the
police and with lawyers, in my
judgment waived his right to an
attorney and made his statement
voluntary.
I have read the Crisler case
and I have made it a practice to
read every other case that comes
down, and in my judgment I do not
know of another experience or
case that I have had that leads
me to believe that it's my
judgment and my conclusion that
your motion should be granted.
Accordingly, your motion is
denied. The matters covered in
the statement will be admitted.”
On May 13, 1980, the defense
moved to have appellant examined
under Rules Crim. Proc., Rule 20.
He was found competent to stand
trial and legally sane at the
time the crime was committed. On
24
August 5, 1980, the defense asked
the Honorable J. Jerome Plunkett
to overrule Judge Schultz's
Rasmussen order on grounds new
psychological findings that
appellant was pedophiliac and had
a personality disorder dictated a
contrary result. Judge Plunkett
decided the prior order was valid
on its face and referred it back
to Judge Schultz for
reconsideration. (T.T. 3-6)
Since Judge Schultz was on
special term the matter was
reassigned to the Honorable
Sidney P. Abramson for trial.
Judge Abramson elicited from
Judge Schultz the latter's
opinion that the psychological
findings constituted no reason
25
for changing his decision. (T.T.
6-7)
Judge Abramson independently
and after hearing argument of
counsel and reviewing the
psychological report and all the
relevant cases, found again that
the State had satisfied the heavy
burden of demonstrating the
voluntariness of appellant's
waiver. (Argument: T.T. 8-19;
Court's reasoning and recitation
of authority; T.T. 19-26; Court's
decision: T.T. 26)
Appellant thereupon waived his
right to jury trial. (T.T.
26-29).
After trial Judge Abramson
found him guilty as charged -
criminal sexual conduct in the
26
first and second degrees - and
sentenced him, after pre-sentence
evaluation at the St. Peter
Security Hospital and after
denial of his post-trial motion
for judgment of acquittal, to a
term of zero to twenty years.
Appellant Brown noticed his
appeal from the conviction to the
Supreme Court of Minnesota, and
thereafter this Court handed down
its decision in Edwards v.
Arizona, U.S __, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981)
The Minnesota Supreme Court
remanded the matter for
reconsideration in light of
Edwards (313 N.W.2d at 207) and
the District Court, reversed its
prior position and suppressed
27
Brown's statements and ordered a
new trial believing that the
holding in Edwards compelled the
result. The Minnesota Supreme
Court affirmed on grounds Edwards
v. Arizona, 101 S.Ct. 1880 (1911)
requires new trial of defendant
on charges of criminal sexual
conduct." State v. Brown,
N.W.2d —s (Minn. no. 82-144,
filed April 6, 1982)
The State of Minnesota's
position in seeking certiorari is
three-folded:
1. The rule in Edwards, if
defined as creating a per se rule
that there can be no waiver of
one's right to counsel after at
any such time asking to see an
attorney save by initiation of
28
the encounter by the accused,
consititutes radical and
unforeseable departure from
earlier waiver cases and should
not be applied retroactively.
2. The rule in Edwards should
be construed, as did Mr. Justice
Powell in his concurring opinion
(101 S.Ct. at 1887-1880, to
require the knowing and
intelligent waiver of Johnson v.
Zerbst, 304 U.S 458, 464 (58
S.Ct. 1019), 1023, 82 L.Ed. 1461
(1938) which was until now the
severest test of waiver known in
this Court's decisions.
3. That these statements are,
in any event, the product not of
custodial interrogation but of
the accused's internal need to
29
confess after hearing the
victim's statement read twice,
and therefore admissible under
Rhode Island v. Innis, 446 U.S
291, 100 S.Ct. 1682, 64 L.Ed.2d
297 (1980).
30
ARGUMENT
THE STATE SATISFIED ITS HEAVY
APPELLANT'S DECISION TO TALK
TO SERGEANT RICHARD WARD
WITHOUT AN ATTORNEY PRES
WAS FREELY AND VOLUNTARILY
Se
The United States Supreme
Court held in Miranda v. Arizona,
384 U.S 436, 444-45, 86 S.Ct.
1602, 1612, 16 L.Ed.2d 694 (1966)
that certain rights attended the
custodial interrogation of a
defendant which, if not honored,
led to a violation of his
privilege against compulsory
self-incrimination under the
Pifth and Fourteenth Amendments
to the Constitution. Any
statement taken in derogation of
these procedures the Court held
must be suppressed.
31
In summary, the Court speaking
through Mr Chief Justice Warren
held:
[3-9] Our holding
will be spelled out with
some specificity in the
pages which folow but
briefly stated it is this:
the prosecution may not use
statements, whether
exculpatory or inculpatory,
steming from custodial
interrogation of the
defendant unless it
demonstrates the use of
procedural safeguards
effective to secure the
privilege against
self-incrimination. By
custodial interrogation, we
mean questioning 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. As for
the procedureal safeguards
to be emplyed, unless other
fully effective means are
devised to inform accused
persons of their right of
silence and to assure a
continuous oportunity to
exercise it, the following
measures are required.
32
Prior to any questioning,
the person must be warned
that he has a right to
remain silent, that any
statement he does make may
be used as evidence against
him, and that he has a
right to the presence of an
attorney, either retained
or appointed. The
defendant may waive
effectuation of rights,
provided the waiver is made
voluntarily, knowingly and
intelligently. If,
however, he indicated in
any manner and at any stage
of the process that he
wishes to consult with an
attorney before speaking
there can be no
questioning. Likewise, if
the individual is alone and
indicates in any manner
that he does not wish to be
interrogated, the police
may not question him. The
mere fact that he may have
answered some questions or
volunteered some statements
on his own does not deprive
him of the right to refrain
from answeri any further
inguiries until he has
consulted with an attorney
and thereafter consents to
be quested.
33
Once warnings have
been given, the subsequent
procedure is clear. If the
individual indicates 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
questioning, the setting of
in-custody interrogation
operates on the individual
to overcome free choice in
producing a statment after
the privilege has been once
invoked. If the individual
states that he wants an
attorney, the interrogation
must cease until an
attorney is present. At
that time, the individual
must have any opportunity
to confer with the attorney
and to have him present
during any subsequent
questioning. If the
individual cannot obtain an
attorney and he indicates
that he wants one before
34
speaking to police, they
must respect his decision
to remain silent.
[49-51] 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
appointed counsel.
Escobedo v. State of
Illinois, 378 U.S. 478, 490
n. 14, 84 S.Ct. 1758, 1764,
12 L.Ed.2d 977. This Court
has always set high
standards of proof for the
waiver of constitutional
rights, Johnson v. Zerbst,
304 U.S. 458, 58 S.Ct.
1019, 82 L.Ed. 1461 (1938),
and we reassert these
standards as applied to
in-custody interrogation.
Since the State is
responsible for
establishing the isolated
circumstances under which
the interrogation takes
Place and has the only
means Of making available
corroborated evidence of
warnings given during
35
incommunicado
interrogation, the burden
is rightly on its
shoulders.
[52-54] An express
statement that the
individual is willing to
make a statement and does
not want an attorney
followed closely by a
statement could consititute
a waiver. But a valid
waiver will not be presumed
simply from the silence of
the accused after warnings
are given or simply from
the fact that a confession
was in fact eventually
obtained. A statement we
made in Carnley v. Cochran,
369 U.S 506, 516, 82 S.Ct
884, 890, 8 L.Ed.2d 70
(1962) is applicable here:
"Presuming waiver
from a silent record
is permissible. The
record must show, or
there must be an
allegation and
evidence which show,
that an accused was
offered counsel but
intelligently and
understandingly
rejected the offer.
Anything less is not
waiver."
36
See also Glasser v. United
States, 315 U.S. 60, 62
S.Ct. 457, 86 L.Ed. 680
(1942). Moreover, where
in-custody interrogation is
involved, there is no room
for the contention that the
privilege is waived if the
individual answers some
questions or gives some
information on his own
prior to invoking his right
to remain silent when
interrogated. (Footnotes
omitted, 384 U.S. at
1627-1628)
As the Court later pointed
out, Miranda clearly provided
that when a suspect assets his
right either to remain silent or
to talk to an attorney before
being questioned, "the
interrogation must cease," but
"it (did not state under what
circumstances, if any, a
presumption of questioning is
37
permitted." In Michigan v.
Mosley, 423 U.S. 96, 96 S.Ct.
321, 46 L.Ed.2d 313 (1975) the
Court held that a statement about
a homicide made to another
detective, more than two hours
after the defendant had declined
to discuss robberies with which
he was accused, could be admitted
against hin. "The admission in
evidence of respondent's
incriminating statement did not
violate Miranda principles.
Respondent's right to cut off
questioning was scrupulously
honored, the police having
immediately ceased the robbery
interrogation after respondent's
refusal to answer and having
commenced inquiry about the
38
murder only after a fresh set of
warnings had been given
respondent."
In the instant case the
interrogating officer
"scrupulously honored” the
appellant's right to silence by
immediately stopping questioning
when he asked to talk to an
attorney, and satisfied the
“heavy burden" of demonstrating
he had changed his mind when
officers after a substantial
interval again spoke to him.
It is hard to imagine a more
careful waiver than that made by
appellant to Sergeant Ward the
day after his arrest. First
orally appellant received his
warnings, the Sergeant carefully
39
stressing that, if appellant
wished an attorney present, the
interview would immediately
terminate. Then followed a
written waiver, with appellant
reading out loud each of the four
Miranda warnings and initialing
each in turn to deomonstrate he
understood its impact. The
statement was written by Ward at
appellant's request and each of
the three pages signed by
appellant after checking it for
accuracy.
Two experienced District Court
Judges, the Honorable Harold W.
Schultz and the Honorable Sidney
P. Abramson, reviewed the record
in light of the relevant cases,
and found that appellant
40
understood the decision he was
making when he talked to Sergeant
Ward and that he had simoly
changed his mind. Judge Schultz
was particulary impressed by the
absence of any hint of coercion
in the atmosphere when Ward went
to appellant. "I didn't get the
impression that Officer Ward
indicated any desire on his part
to try to change anybody's mind.
I thought it was a recognition
very obviously of the fact that
very often people do change their
minds." (T.R. 68, ll. 4-8)
At no time did appellant refer
to a particular attorney he had
engaged or used and at all the
relevant times of interrogation
here he had not been charged with
41
any crime, and thus no attorney
had been appointed to represent
him. Under such circumstances,
his right to assistance of
counsel under the Sixth and
Pourteenth Amendments had not
attached and thus could not be
violated. Massaih v. United
States, 377 U.S. 201, 84 S.Ct.
1199, 12 L.Ed.2d 246 (1964);
Brewer v. Williams, 430 U.S. 387,
97 S.Ct. 1232, 51 L.Ed.2d 424
(1977).
The United States Supreme
Court's recent decision in
Edwards v. Arizona, U.S. P
101 S.Ct. 1880 (1981) is
distinguishable from the instant
case for a number of reasons.
There, the Arizona Supreme Court
42
had wholly misconceived the issue
by holding that the issue was the
voluntariness of the defendant's
ultimate confession, and not his
waiver of the right to an
attorney's presence, which he had
previously asserted. Also, the
State had clearly failed to
satisfy its heavy burden of
proving the defendant's change of
mind was voluntary, because prior
to requestioning, the guard told
defendant "he had" to talk and
then took him to meet with the
detective. (101 S.Ct. at 1882,
1884)
The concurring opinion of Mr.
Justice Powell, (101 S.Ct. at
1887 £.£.) moreover, stresses
that the majority opinion of Mr.
43
Justice White should not be read
to create a new per se rule that
one who has once asked to see a
lawyer can waive his right to an
attorney's presence only where he
had initiated the dialogue. As
Justice Powell rightly points
out, such a rule would fly in the
fact of a long and unbroken line
of precedents, starting with
Johnson v. Zerbst, 304 U.S. 458,
58 S.Ct. 1019, 82 L.Ed. 1461
(1938), that “waivers of counsel
must not only be voluntary, but
constitute a knowing and
intelligent relinquishment or
abandonment of a known right or
privilege, a matter which depends
in each case ‘upon the particular
facts and circumstances
43
surrounding that case, including
the background, experience and
conduct of the accused.'"
All factors should be
considered and weighed and none
should be decisive so long as the
critical question of
voluntariness be decided
equitably. Such a rule has been
applied to the waiver of a
juvenile, Fare v. Michael C., 442
U.S. 707, 99 S.Ct. 2560, 61
L.Ed.2d 197 (1979). Also, an
implied oral waiver may be
proved, relying on all the
attendant circumstances, even
where the defendant refuses to
execute a written waiver. North
Carolina v. Butler, 441 U.S. 369,
99 S.Ct. 1755, 60 L.Ed.2d 286
45
(1978). "The questions is not
one of form, but rather whether
the defendant in fact knowingly
and voluntarily waived the rights
delineated in the Miranda case."
(441 U.S. at 373, 60 L.Ed.2d at
292).
Indeed, the majority opinion
in Edwards was written by Mr.
Justice White, whose own
concurring opinion in Michigan
v.Mosley, (423 U.S. at 107, 96
S.Ct. at 328) expressed fear lest
just such a per se approach be
inferred from the Court's Mosely
opinion that “some custodial
confessions will be suppressed
even though they follow an
informed and voluntary waiver of
the defendant's rights ... (if
46
obtained) within some unspecified
time after an assertion by an
individual of his ‘right to
silence"..." Justice White
concluded:
"... I am no more convinced
that Miranda was required
by the United States
Constituion than I was when
it was decided. However,
there is at least some
support in the law both
before and after Miranda
for the proposition that
some rights will never be
deemed waived unless the
defendant is first
expressly advised of their
existence. E.G. Carnley v.
Cochran, 369 U.S. 506, 82
S.Ct. 884, 8 L.Ed.2d 70
(1962); Boykin v. Alabama,
395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 238
(1969); Fed. Rules Crim.
Porc. ll, 32(a)(2). There
is little support in the
law or in common sense for
the proposition that an
informed waiver cf a right
may be ineffective even
where voluntarily made.
Indeed, the law is exactly
to the contrary, e.g.
47
Tollett v. Henderson, 41l
U.S. 258, 93 S.Ct. 1602, 86
L.-Ed.2d 235 (1973); Brady
v. United States, 397 U.S.
742, 90 S.Ct. 1463, 25
L.Ed.2d 747 (1970); McMann
v. Richardson, 397 U.S.
759, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970); Parker
v. North Carolina, 397 U.S
790, 90 S.Ct. 1458, 25
L.Ed.2d 785 (1970). Unless
an individual! is
incompetent, we have in the
past rejected any
parternalistic rule
protecting a defendant from
his intelligent and
voluntary decisions about
his own criminal case.
Faretta v. California, 442
U.S 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975). To do
so would be to “imprison a
man in his privileges,"
Adams v. United States ex
rel. McCann, 317 U.S. 269,
280, 63 S.Ct. 236, 242, 87
L.Ed. 268 (1942), and to
disregard “'that respect
for the individual which is
the lifeblood of the law,'"
Faretta v California,
supra, 442 U.S. at 834, 95
S.Ct. at 2541. I am very
reluctant to conclude that
Miranda stands for such a
proposition (423 U.S. at
108-109, 96 S.Ct. at
48
328-329, Footnote omitted)"
On applying Edwards to the
facts of this case, one of two
things must be true. On the one
hand, “if the Court's opinion can
be read as not departing from
established doctrine,” as Justice
Powell hoped, the State has
demonstrated a voluntary waiver
based on the totality of the
circumstances, even though
defendant did not "initiate" the
interview. On the other hand if
Edwards is construed to impose a
per se rule of admissibility, a
radical departure from prior law,
it should not, under generally
accepted rules of constitutional
interpretation, be applied
retroactively.
49
Both Sergeant Ward's
questioning and the decisions
below of Judges Schultz and
Abramson took place before
Edwards was decided. The Judges’
decisions were clearly correct in
light of the law and authorities
then on the books.
To determine whether a newly
announced constitutional rule
should be applied retroactively
one looks to “the purpose of the
rule (our new standards governing
police interrogation), the
reliance which may have been
placed upon prior decisions on
the subject, and the effect on
the administration of justice of
a retroactive application..."
Most important, under this test
50
Miranda itself, and its precursor
Escobedo v. Illinois, 378 U.S.
478, 84 S.Ct. 1758, 12 L.Ed.2d
977 (1964 were held, as
prophylactic rules governing
police conduct, to be applicable
only prospectively. Johnson v.
New Jersey, 384 U.S. 719, 86
S.Ct. 1772, 16 L.Ed.2d 882
(1966), decided the same day as
Miranda. Accord, Linkletter v.
Walker, 381 U.S. 618, 85 S.Ct.
1731, 14 L.Ed.2d 601 (1965)
declining to apply retroactively
Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081 (1961)
Contra Gideon v. Wainwright, 372
U.S 335, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963) the right to counsel
at trial of an indigent held to
51
affect the very integrity of the
fact-finding process" and to
avert “the clear danger of
convicting the innocent."
Here, it is essentially unfair
to apply novel standards of
voluntariness of a Miranda
waiver, where the waiver would
have been clearly held valid, but
for the application of a later
decided per se rule of exclusion.
The circumstances under which
this waiver were made belied any
question of influence or
coercion. The afternoon before -
a full fifteen hours earlier -
appellant had indicated his
desires to talk to an attorney
before talking about either the
theft or the criminal sexual
52
conduct charges which were later
to be lodged against him. In the
evening, he relented and talked
to Sergeant Pelton about the
thefts, affirmatively suggesting
a search of his duplex so police
could verify no more contraband
was there.
Sergeant Ward, next morning,
didn't realize appellant had
previously mentioned an attorney;
he must have known appellant had
talked openly to Pelton the
previous evening.
While it couldn't be said that
appellant “initiated” the
discussion about the criminal
sexual conduct charges, once
broached, he asked twice that the
complaint of Jennifer Krier and
53
her mother be read to him and
blurted out that he was guilty.
Given these facts, appellant's
confession was actually made
neither in response to custodial
interrogation, nor to its
functional equivalent. Rather it
was his emotional response to the
complaint of the Kriers read to
him by the Sergeant at his own
request. As Sergeant Ward
stated: "Yes, he told me that he
felt very bad for doing this. He
felt like an animal, and that's
why he was telling me this, that
he needed help.” (T. R. 36, ll,
13-15), emphasis added) The
statement was made in response to
internal not external pressures.
Under like circumstances, the
54
CONCLUSION
The United States Supreme
Court in Miranda did not mean to
remove from law enforcement
officals the tool of
interrogation to elicit
incriminating statements. Rather
it purposed to deter the use of
coercive techniques against
isolated suspects who, without
access to counsel to assist them,
might be deceived into thinking
cooperation was the only course
of conduct open to them.
One should understand the
special problems faced by law
enforcement officials attempting
to establish responsibility for
silent unwitnessed crimes against
victims too young to testify
against their predators but
traumatized in a way potentially
to effect their entire lives;
crimes that if unpunished - and
the perpetrator untreated - are
highly likely to be repeated on
the persons of other equally
defenseless and equally mute
victims.
That law enforcement may be
hard can't justify violation of
any person's fundamental rights.
Here, to the contrary, as both
judges in the District Court
recognized, the State simply
urges this Court to approve
asking an accused if he has
changed his mind and will be
interviewed - while making
equally clear to him that no
57
untoward result will attend his
continuing refusal.
WARREN R. SPANNAUS
Minnesota Attorney General
TOM FOLEY
Ramsey County Attorney
By: STEVEN C. DeCOSTER
Assistant County Attorney
200 Lowry Square
St. Paul, Minnesota 55102
(612) 298-5464
Attorneys for State of Minnesota
Dated: June 22, 1982
58
STATE OF MINNESOTA DISTRICT
COURT
SECOND
COUNTY OF RAMSEY JUDICIAL
DISTRIC‘’
State of Minnesota
ORDER
Vv.
File No.
33232-33 John Henry Brown,
Defendant.
The mattter arises on a remand
from the Minnesota Supreme Court
for reconsideration of
Appellant's motion for a new
trial, based upon the decision of
the United States Supreme Court
in Edwards v. Arizona, 101 S.C.
1880 (1981). That case was
decided subsequent to this
Court's denial of the Appellant's
motion after conviction for
Criminal Sexual Conduct in the
First and Second Degree.
Appellant appeared personally
and with counsel, Assistant
Public Defender, Keith Hanzel,
Esq. The State was represented
by Steven DeCoster, Esq.,
Assistant Ramsey County Attorney.
Upon reconsideration,
IT IS ORDERED that Appellant's
motion for a new trial is granted
and the matter is placed upon the
calendar of this court for trial
on April 5, 1982.
Judge of District Court
Dated: January 25, 1982
MEMORANDUM
The facts briefly summarized
are that St. Paul police officers
were advised by the parents of
three and a half year old
Jennefer Krier that Appellant had
sexually assaulted her within the
definition of Criminal Sexual
Conduct in the First and Second
Degree. Additionally the parents
advised police that Appellant
would be returning to their home
with property stolen from his
employer, St. Paul Ramsey
Hospital. Based upon appropriate
cause, the officers arrrested
Appellant in mid afternoon of
March 27, 1980, and immediately
advised him of his rights under
Miranda v. Arizona, 384 U.S. 436
(1966). Appellant after such
warnings, declined comment and
stated "I don't want to say
anything until I see a lawyer."
(Ras. T. P. 8. Trial T. P. 53)
Further, conversation while in
the squad car led to additional
refusals by Appellant and his
reiteration of his desire to
obtain counsel. (Ras. T. P. 18,
Trial T. P. 46-47)
Later that same evening, Sgt.
Joseph Pelton approached
Appellant in jail, readvised him
of his Miranda rights, and after
assuring himself that Appellant
understood, proceeded to question
him regarding the theft charge.
Appellant, making no reference to
counsel, agreed to answer
questions relative to the theft
and even signed a Waiver and
Consent to search his home. (Ras.
T. P. 24-5)
The following morning, March
28, 1980, Officer Ward
interviewed defendant in jail,
warned him again, and had him
execute a Waiver of Rights Form.
(Ras. T. p. 32-33, Trial T. P.
60) Again, Ward pursued the
theft charge, but then shifted
his focus to the sexual conduct.
Appellant requested the officer
to read the charges against him
by the child's mother and when
this was done, apparently began
to cry, asked for the charges to
be read again, broke down and
admitted the criminal sexual
conduct. (Ras. T. P. 35-36,
Trial T. P. 61) The officer
wrote out a statement which
Appellant signed. (Ras. T. P.
37, Trial T. P. 62)
Charges resulted, and in May,
a Rasmussen Hearing was held
before the Hon. Harold Schultz,
Appellant moving to suppress his
statement on grounds that the
police, while continuing to
question him after his refusal to
talk, violated his Fifth and
Fourteenth Amendment rights. The
motion was denied by Judge
Schultz. Subsequent to his
order, the defense moved for an
examination pursuant to Rule 20,
MRCP, and in August, 1980 was
found competent. At that time
the Hon. J. Jerome Plunkett
reviewed Judge Schultz’ order and
found it valid, referring it back
to Schultz for trial. The matter
subsequently was assigned to the
undersigned due to scheduling
conflicts, and this Court
reviewed the matter and
independently found Appellant's
statement to have been voluntary.
(T. P. 26)
This Court distinguished the
cases which had been relied on by
Appellant, as in each of those
cases, counsel had already been
assigned and notwithstanding
that, interrogation had gone on.
State v. Crisler, 285 N.W.2d 679
(1979); State v. Giddings, 200
N.W.2d 595 (1980); State v.
Sufka, 295 N.W.2d 665 (1980).
Noteworthy is that even with the
factual situations presented in
those cases, the Minnesota
Supreme Court refused to adopt a
"per se rule” which prohibited
discussion with a represented
defendant. State v. Giddings,
supra, at Footnote 3. Those
cases convinced this Court that
the appropriate law was, as
before, that given a finding of
voluntariness in any waiver, as
statement could be offered, and,
so conviced, decided the issue
adversely to the Appellant. In
May, 1981, six months after
sentence, the United States
Supreme Court decided Edwards v.
Arizona, supra. Edwards had been
arrested for robbery, burglary
and first degree murder. He was
warned in accordance with
Miranda, he asked for counsel,
and questioning was discontinued
for a day. When officers
returned, even though he voiced a
desire not to talk with anyone, a
guard told him “"‘he had to talk'
and then took him to meet with
the detectives." Edwards, after
being informed of his rights,
asked to have his accomplice's
taped statement played for him
and, listening for awhile,
offered his own incriminating
statement. His motion to
suppress at trial was denied and
his statements were used to aid
in his conviction. On appeal,
the Arizona Supreme Court
affirmed the conviction holding
that Edwards had waived his right
to counsel voluntarily. The
United States Supreme Court
reversed, six justices for the
majority with the balance
concurring. The six justices
state a clear prophylactic rule:
+++ We now hold that when
an accused has involved 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 interrogation
even if he had been advised
of his rights. We further
hold that an accused such
as Edwards, having
expressed his desire to
deal with the police only
thru 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
conversation with the
police ... We ... emphasis
that it is inconsistent
with Miranda and its
progeny for the authorities
at their instance, to
re-interrogate an accused
in custody if he has
clearly asserted his right
to counsel..." (49 L.W.
4498).
The only procedure which could
countermand this direction,
concluded the Supreme Court,
would be the defendant's
initiation of the police contact.
They note, reminiscent of the
facts in the case at issue, "...
He listened at his own request to
part of the taped statement made
by one of his alleged accomplices
and then made an incriminating
statement ... We think it clear
that Edwards was subject to
custodial interrogation ... at
the instance of the authorities.
His statement made without having
access to counsel did not amount
to a valid waiver and hence was
inadmissible ..."
Chief Justice Burger in his
concurring opinion cautions
against “Good things ... carried
too far" in reference to the
expansion of protections of
in-custody defendants, but
concludes that the Johnson v.
Zerbst test (304 U.S. 458-464
(1938) still being viable, the
guard's statement “that he hac
to" talk to the detectives was
adequate mandating a decision for
Edwards. (49 L.W. 4499)
Likewise, Justices Powell and
Rehnquist concur but argue that
the old “voluntary test" by the
majority court action now had
superimposed on it a requirement
of proof regarding the initiating
of the conversation, that is, the
accused or authorities. They
concluded that the “totality of
the circumstances" in Edwards
show an involuntary character to
his statement, but they wrote:
*"...nothing in the Constitution
erects obstacles that preclude
police from ascertaining whether
a suspect has reconsidered his
original decision (not to talk)."
(49 L.W. 4499) They recognized
further that is is not unusual
for a suspect to welcome an
opportunity to talk even after
first rejecting the idea.
Viewed then, in the context of
the case at bar, Edwards makes
this case a close one. Here
defendant twice demanded counsel,
but subsequently impliedly by not
raising the issue, agreed later
in the evening to talk without
counsel, and did talk concerning
a theft. The next day he again
discussed the theft with Officer
Ward but in the flow of
conversation, as Ward raised the
sexual conduct, asked to have the
complaining witness's statement.
This led him to break down,
eventually asking for help for
his sexual problems, he
confessed.
It appears to this Court that
either the prophylactic view of
the six majority members of the
Edwards court, or the view of any
of the concurring justices in
Edwards requires that Appellant
Brown here was subject to
impermissible pressure. Judge
Schultz described it best in his
original order. “Now, it's a
little vague as to exactly how
they slid into the matters of the
criminal sexual conduct ...
Nevertheless, slide into it they
did ..." (Ras. T.P. 69). It is
this “sliding in” that the
majority of the court in Edwards
prohibited in May of 1981. and so
regrettably this Court can do no
more than hold Appellant entitled
trial. I do this notwithstanding
the State's strong argument
regarding the retroactive
character of such a decision. In
other words, it is, in their
view, a “newly announced”
constitutional doctrine departing
from established law. The very
language of Edwards would refute
the State's assertion: "“... In
Pare v. Michael C., 442 U.S. 707
(1979) the Court referred to
Miranda's "rigid rule” that an
accused's request for an attorney
is per se an invocation of his
Fifth Amendment rights requiring
that all interrogation ceases,
and just last term... the Court
again referred to the “undisputed
right" under Miranda to remain
silent and to be free of
interrogation until he had
consulted with a lawyer. Rhode
Island v. Innis, 446 U.S. 291.
We reconfirm these views .. and
to lend them substance, emphasize
that it is inconsistent with
Miranda ... to reinterview an
accused in custody if he has
clearly asserted his right to
counsel.” 49 L.W. 4498)
(Emphasis supplied).
Accordingly, on
reconsideration mandated by the
Minnesota Supreme Court,
Appellant's motion for a new
trial is granted.
SPA.
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