Appendix — James Spalding v. Arthur Nathaniel Aiken

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR NATHANIAL AIKEN,

Appellant,

NO. 81-3592

D.C. No.

Civ. 79-892

vs.

)

JAMES SPALDING, )

Superintendent, ) OPINION

Washington State )

Penitentiary, and )

KEN EIKENBERRY, )

Attorney General, )

State of Washington, )

)

Filed

August 17,

1982

Appellees.

Appeal from the United States District

Court for the Western District Of

Washington

Barbara J. Rothstein,

District Judge, Presiding

Argued and Submitted May 6, 1982

BEFORE: GOODWIN and POOLE, Circuit

Judges, and EAST,*

District Judge

GOODWIN, Circuit Judge

Aiken appeals the dismissal of his

habeas corpus petition pursuant to Rule

*Honorable William 4G. East, United

States District Judge, District of

Oregon, sitting by designation.

— a

9(a) of the Rules Governing Section 2254

Cases, 28 U.S.C. foll. § 2254 (1976).

Aiken was resentenced in 1973; his

habeas petition, however, was not filed

until 1979, due to an undenied lack of

diligence by earlier counsel. The peti-

tion presents claims challenging’ the

voluntariness of Aiken's confession as

well as the effects of pretrial publi-

city.

Rule 9(a) provides:

"A petition may be dismissed if

it appears that the state of which

the respondent is an officer has

been prejudiced in its ability to

respond to the habeas petition by

delay in its filing unless’ the

petitioner shows that it is based on

grounds of which he could not have

had knowledge by the exercise of

reasonable diligence before the

circumstances prejudicial to the

state occurred."

The district court found that the

state had made no showing that the delay

in the filing of the petition had im-

paired its ability to address the issues

raised therein. The district court

agreed, however, with the state's alle-

gations that the lapse of time would

prejudice the state in its ability to

retry Aiken should he obtain habeas

corpus relief. The court ruled that

these assertions were cognizable within

Rule 9(a), and therefore dismissed

Aiken's petition.

Rule 9(a) specifically provides that

Gismissal may be available where the

state has been prejudiced in its ability

to respond to a habeas petition by

reason of the petitioner's unreasonable

- 2

Coley in filing. The Advisory Committee

Note on the rule indicates that the

drafters were concerned with the delayed

filing of habeas petitions by

individuals who had long been on parole

or probation or who had served their

sentences. Those cases would require

difficult factual investigations into

long past proceedings. See also IV ABA

Standards for Criminal Justice 22-2.4(c)

(1980). The State of Washington has not

been prejudiced in its ability to

respond to Aiken's petition. The

state's concern is that trial witnesses

have vanished or have forgotten past

events and that reprosecution would

fail. The question is whether this

alone is a valid ground for dismissal

under the rule. We hold that it is not.

Rule 9(a) imports into habeas corpus

law for the first time the equitable

doctrine of laches. Cf. Heflin vy.

United States, 358 U.S. 415,

(Stewart, J concurring for five

Justices); 17 Wright and Miller, Federal

Practice and Procedure, § 4268 at 701

(1978). But Rule 9(a) specifically

defines the prejudice to be considered

-- prejudice in responding to the

petition. The phrase “in its ability to

respond to the petition" was an

amendment to the Judicial Conference

Graft of Rule 9(a).

lfhe history of the drafting of the rule

leaves some doubt as to the continued

viability of the entire text of the

Advisory Committee Note, some of which

has been carried over from the former

text before it was modified in Congress.

Given the potentially adverse impact

of Rule 9(a) on the availability of

habeas relief to state petitioners,

Rule 9(a) has been liberally construed

in favor of petitioners. See, €@.9.,

Davis v. Adult Parole Authority, 0

F.2d 410, 413 (6th Cir. 575). . Liberal

construction also avoids a confrontation

with the Suspension Clause of Art. I,

§ 9, of the United States Constitution.

Moreover, Congress has indicated its

Gisfavor of dismissals for delay under

Rule 9(a) by eliminating from the

proposed draft of the rule a rebuttable

presumption of prejudice that could be

invoked by fhe state after a delay of

five years. See H.Rep. No. 94-1471,

94th Cong., 2d Sess. 4-5, reprinted in

1976 U.S. Code Cong. & Admin. News 2478,

2481.

In statutory construction, the

Plain, obvious meaning of the language

of a statute is to be preferred to a

curious or hidden sense. Chandler v.

Roudebush, 425 U.S. 840, 848 (1976).

culty in reprosecution is not

expressly considered in the text of

Rule 9(a), and other courts and commen-

tators have suggested that such diffi-

culty was intentionally excluded. See

Lerma _v. Estelle, 585 F.2d 1297, 1300,

n.3 (5th Cir. 1978), cert. denied, 444

U.S. 848 (1979) (Rubin, J., dissenting)

2 In 1980 this court summarily reversed

a dismissal of an earlier petition in

this case when the district court

erroneously relied upon the five-year

presumption after it had been stricken.

See unpublished memorandum, Aiken vy.

Tore No. 80-3126, (9th Cir.

us , 1980.)

- 4a -

(petition alleging prison grievance

denied for failure to exhaust’ state

administrative remedies). Accord, IV

ABA Standards on Criminal Justice,

22-2.4 m.4 (198C); Clinton, “Rule 9 of

the Federal Habeas Corpus Rules: A Case

Study on the Need for Reform of the

Rules Enabling Acts," 63 Iowa Law Review

15 (1977). We have found no case which

holds that difficulty in reprosecuting

alone is a basis for denying an other-

wise meritorious petition. Substantial

delay in the filing of a petition has

been held not to justify dismissal. See

e.g., Hawkins v. Bennett, 423 F.2d 948

Cir. 1970), where a delay of 44

years did not justify dismissal of the

petition; and Davis _ v. Adult Parole

Authority, 610 F.2d 410, (14 years). It

is the state's ability to respond to the

petition, not its ability to retry and

convict the petitioner, that is relevant

at the current stage of this litigation.

17 Wright «& Miller, § 4268 at 701

(1978).

3 Black v. Coombe, 506 F. Supp. 626

(SA.D. N.Y. 1981), affirmed without

opinion, 672 F.2d 899 (2d Cir. I198I1),

rejected a habeas petition on the

merits, noting in dicta without any

analysis of prior law or the history of

the rule that the state would have been

prejudiced in its ability to retry the

petitioner should he have withdrawn his

prior guilty plea. The passing refer-

ence in dicta in ers v. State of

Wash., 646 F.2d 355. 36IS2 =2, n.el0 (9th

Cir. 1981), vacated and remanded,

U.S. , 102 S. Ct. 1964 (1982), is

likewise inconclusive.

@ 9% «

The district court erred in relying

on the supposed difficulty the state may

encounter in mounting a reprosecution in

the event Aiken proves that an illegal

interrogation underlay the challenged

conviction. The district court must

instead address the statutory questions

set out in 28 U.S.C. 2254(d). The ulti-

mate issue is whether, in fact, Aiken

was denied the constitutional protec-

tions which he now claims he was denied.

Because the state has failed to show

prejudice within the meaning of Rule

9(a), we vacate the judgment of the

district court and remand for further

proceedings on the § 2254(d) questions.

Vacated and remanded.

POOLE, Circuit Judge, concurring specially

I concur in the majority opinion

because I believe that the result here

is dictated by the literal terms of

Rule 9, which only permits the state to

show prejudice "in its ability to

respond to the petition.” However, I

write separately to express my view that

the Rule as interpreted does not conform

to the realities of the criminal justice

system.

It seems utterly unrealistic to

suggest that the state may raise the

prejudice it has suffered in responding

to the petition caused by petitioner's

Gelay, but that it may not raise the

prejudice it will suffer in attempting

to retry the underlying charges against

him. The principles of equitable estop-

pel animating Rule 9 apply equally weli

to the difficulties faced by the state

in any retrial as to any problems it may

have in responding to petitioner's spe-

cific claims. Indeed, as demonstrated

- 6a -

by this case, the difficulties involved

in marshalling evidence for a retrial,

including dispersal of witnesses, faulty

memory and unwillingness to testify may

often be more significant ‘than the task

of meeting petitioner's specific allega-

tions.

Since Rule 9 does not take into

account those difficulties, the situ-

ation should be called to the attention

of the Judicial Conference of the United

States so that it may consider modifying

the rule to take into account prejudice

on retrial.

- Ja -

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CIVIL ACTION FILE NO. C79-892R

ARTHUR AIKEN,

Plaintiff,

vs. JUDGMENT

JAMES SPALDING, et al.,

eee ee

Defendants.

This action came on for trial

(hearing) before the Court, Honorable

[Barbara J. Rothstein], United States

District Judge, presiding, and the

issues having been duly tried and a

decision having been duly rendered,

It is Ordered and Adjudged that

respondent's motion to dismiss is

GRANTED and petitioner's petition is

ordered DISMISSED.

Dated at Seattle, Washington, this 2nd

day of September, 1981.

_C.R. Kimzey

Deputy erk o urt

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ARTHUR AIKEN,

ORDER GRANTING

RESPONDENT'S

MOTION TO

DISMISS

JAMES SPALDING, et al.,

Respondents.

ee ee ee ee ee eee ee ee ee

THIS MATTER comes before the Court

on respondent's motion to dismiss pur-

suant to Rule 9(a) of the Rules Govern-

ing Section 2254 Cases, 28 U.S.C. fol.

§ 2254. The Court having reviewed the

Pleadings, the memoranda of the parties,

the Report and Recommendation of the

United States Magistrate, John L.

Weinberg, respondent's objections to the

Report and Recommendation, petitioner's

reply to respondent's objections, and

the balance of the relevant file, now

finds and rules as follows.

Rule 9(a) provides:

A petition may be dismissed if it

appears that the state of which the

respondent is an officer has been

prejudiced in its ability to respond

to the petition by delay in its

filing unless the petitioner shows

that it is based on grounds of which

he could not have had knowledge by

the exercise of reasonable diligence

before the circumstances prejudicial

to the state occurred.

Rule 9(a) is based on the equitable

doctrine of laches. The petitioner is

held to a standard of reasonable

° @<

diligence, and the respondent must deron-

strate that it has been prejudiced by

petitioner's delay. Honeycutt v. Ward,

612 F.2d 36 (2d Cir. 1979). The applica-

tion of Rule 9(a) must be considered on

the facts of each case, based upon the

reasonableness of the party's behavior

under the circumstances. Baxter v.

Estelle, 614 F.2d 1030, 1034 (Sth Cir.

° Following resentencing in 1973,

petitioner Aiken was legally in a posi-

tion to commence post-conviction habeas

proceedings. His petition, however, was

not filed until 1979. Petitioner argues

that the delay was the result of the

failure of his attorney to file the peti-

tion. There is no explanation, however,

why the attorney's failure to file the

petition should excuse Aiken's failure

to file the petition as well.

The only permissible justification

for delay under Rule 9(a) is lack of

knowledge that the claim exists. The

Rule provides that prejudice may result

in dismissal of the petition unless

petitioner shows that he did not know

and could not reasonably have discovered

the legal grounds for his petition. It

is obvious that Aiken knew of his invol-

untary confession and pretrial publicity

Claims as early at 1965. His habeas

Claims are nearly identical to his

assignments of error raised in his

direct appeals to the Washington Supreme

Court; he cannot claim that he did not

know his claims existed until 1979. He

knew of them in 1965 when he was origi-

nally convicted. Aiken filed nothing,

contenting himself with the observation

that an attorney had assumed the task of

preparing his petition. The lack of

diligence of his attorney, however, does

not excuse his own lack of diligence. A

- 10a -

petitioner cannot sit back for six years

without taking any responsibility to see

that his claims are presented. It

remained Aiken's responsibility to file

his petition within a reasonable time

period. j

The Rule requires not only unreason-

able delay but also that the delay work

to the detriment of the other party.

This question presents the most diffi-

cult aspect of this matter because the

respondent has argued extensively as to

why it would be prejudiced at retrial,

but has made no showing that the delay

has impaired respondent's ability to

address the issues raised by the habeas

corpus petition. As noted in the

Magistrate's Recommendation and Report,

"The language of the rule seems to

require a showing that the delay has

prejudiced the state ‘in its ability to

respond to the petition.'" Magistrate's

Report, p.4.

The Magistrate observed that the

only case where a court indicated that

respondent's prejudice in the event of

retrial might provide an alternate basis

for dismissal under Rule 9(a) is Black

v. Coombe, 506 F. Supp. 6265 (S.D.N.Y.

° e Court of Appeals for the

Ninth Circuit recently considered a

motion to dismiss under Rule 9(a) in

Myers v. State of Washington, 646 F.2d

35. 352-63 (9th Cir. I . The Court

specifically noted that it expressed no

opinion as to whether the state actually

had been prejudiced. Apparently the

respondents, as in this case, had argued

prejudice only insofar as retrial was

concerned. Without addressing this

particular question, the Court did not

reject prejudice at retrial as a ground

for consideration. Id. at 362 n.10.

- lla -

As noted by the Magistrate's Report,

the Advisory Committee Notes to Rule 9

of the § 2254 Rules shed little light on

this question. Rule 9 of the § 2255

Rules is identical, however, in all

material respects to Rule 9 of the

§ 2254 Rules, and the Advisory Committee

Notes to that Rule include:

Subdivision (a) provides a flexible,

equitable time limitation based on

laches to prevent movants from with-

holding their claims so as to preju-

dice the government both in meeting

the allegations of the motion and in

an possible retrial. (emphasis

added).

There is no reason for construing

Rule 9(a) Governing Section 2255 Cases,

28 U.S.C. fol. § 2255 differently than

the same rule Governing Section 2254

Cases. The Supreme Court promulgated

two parallel 9(a) rules. Elsewhere, the

Court has expressed concern that state

and federal prisoners seeking habeas

relief be treated equally. Francis v.

Henderson, 425 U.S. 536 (1975). Because

the state has been prejudiced by peti-

tioner's unreasonable delay, the

petition is DISMISSED.

Since the issue is likely to be pre-

sented to the Appeals Court, the record

should be as complete as possible. The

respondent's motion to expand the record

is therefore GRANTED.

The Clerk of this Court is directed

to send uncertified copies of this Order

to all counsel of record and to Magis-

trate Weinberg.

DATED at Seattle, Washington, this

lst day of September, 1981.

s/s Barbara J. Rothstein

UNITED STATES DISTRICT JUDGE

- l2a -

APPENDIX C

IN THE SUPREME COURT

OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, )

)

Respondent, ) NO. 38592

)

Vv. ) FILED

) OCTOBER 26,

ARTHUR NATHANIEL AIKEN, ) 1967

)

Appellant. )

)

[Excerpt of opinion: 72 =j\wWn.2d 306,

330-347, 434 P.2d 10, 27-36.)

a * *

INTERROGATION OF AIKEN

Our review of the facts and circum-

stances surrounding the interrogation of

the defendant Aiken is invaluably aided

by the fact that his interrogation was

tape recorded, virtually in its entire-

ty, without the knowledge of either the

defendant or the interrogating officers.

It proved necessary, however, due to the

poor quality of the tape recording at

various points in the interrogation to

remand this case for a further hearing

on the issue of voluntariness, so that

our ultimate decision in the case would

be based on a record which was complete

in every respect. The evidence relative

to Aiken's interrogation, therefore, is

discosed in the records of both eviden-

tiary hearings held to determine whether

the defendant's constitutional rights

had been violated in any respect by the

taking of his confessions and their

admission in evidence at his trial. The

- l3a -

following facts as found by the trial

court are undisputed, except as herein-

after noted.

After Aiken's apprehens ior: in

Blaine, Washington, by the border patrol

at 4:19 p.m. on April 25, 1965, he was

Placed under arrest by a Blaine city

policeman for carrying a concealed

weapon (a fully loaded .25 automatic)

and transported to the Whatcom County

jail at Bellingham. MThe officers of the

border patrol, state patrol, city of

Blaine, and Whatcom County’ sheriff's

office, all testified that from the time

of his apprehension, Aiken's attitude

was sullen and quiet and he held his

head down. In fact, during his entire

detention in Bellingham, pending his

transport to Seattle, Aiken only asked

one question concerning his detention,

remaining silent even to the extent of

refusing to answer routine identifica-

tion questions by the booking officer.

At approximately 10p.m. that eve-

ning, Detective John Leitch of _ the

Seattle Police Department and Detective

Sergeant Frank Chase of the King County

sheriff's office arrived in Bellingham

to drive Aiken to Seattle. At that

time, the police officers advised him

that he did not have to make any state-

ment to them, that he had a right to an

attorney before making any statement,

and that anything he did say could be

used against him in a court of law.

Detective Leitch asked Aiken if he

understood his rights, and the defendant

nodded and said "yes." The defendant

was very quiet. He had his head down

and his attitude was surly and cool.

En route to Seattle, Detective

Leitch inquired of the defendant whether

he, as a member of the military, was

- lé4a -

familiar with article 31 of the Uniform

Code of Military Justice, which prohib-

its compulsory self-incrimination. The

defendant replied that he was familiar

with it. The article in pertinent part

reads as follows:

Art. 31. Compulsory self-incrimination

prohibited

(b) No person subject to this chap-

ter may interrogate, or request any

statement from, an accused or a per-

son suspected of an offense without

first informing him of the nature of

the accusation and advising him that

he does not have to make any state-

ment regarding the offense of which

he is accused or suspected and that

any statement made by him may be

used as evidence against him in a

trial by court-martial.

Detective Leitch further advised Aiken

that he was being held on a charge of

homicide and robbery. The defendant

denied any involvement and the officers

did not discuss the matter further.

Upon their arrival in Seattle, at

approximately midnight, the police

officers took Aiken to an interrogation

room located on the 10th floor of the

County-City Building. At 12:20 a.m.,

April 26, 1965, an interrogation began

there, which is recorded on exhibit ll,

the first tape recording, and prior

thereto the defendant was again cau-

tioned by Detective Chase of his consti-

tutional rights as enumerated. This

third warning was corroborated by

Detective Everett Mullen of the Seattle

Police Department, who participated in

the interrogation, and is admitted by

Aiken as having been given to him.

During the conversation that

followed between Sergeant Chase,

- 15a -

Detective Mullen and the defendant

Aiken, the defendant had his head

lowered, mumbled his words and was

difficult to understand. The interview

room is not soundproof, and during the

conversation the detectives heard, and

the recording discloses, several noises

from outside the room, including a

laundry running on the floor above, a

swinging gate just outside the interview

room, and traffic noises outside the

window.

During the interrogation, Aiken read

a statement by the defendant Wheat

(exhibit No. 3) pertaining to the Wolf

homicide as charged in count 2 of the

information, wherein Wheat accused Aiken

of the callous slaying of the victim,

while he was on his knees praying.

Aiken insisted that the statement was a

counterfeit, and that Wheat was lying.

Shortly thereafter, at 1 a.m., Chief

of Detectives Thomas Nault entered the

interview room. Chief Nault advised the

defendant that further evidence had been

received from Airman Brown, a friend of

Aiken, which indicated that the murder

weapon was Aiken's. Nault corroborated

the fact that Wheat had given the state-

ment read by Aiken, and that they wanted

to give Aiken the opportunity to give

his side of the story before he was

charged with murder; that if Wheat was

lying, they wanted to know it.

Aiken then requested that Wheat be

brought down to the room to verify the

statement. The request was granted, and

Wheat was brought to the interview room.

While standing in front of Wheat, Aiken

asked him if he had given the Wolf state-

ment, and Wheat acknowledged that he

had. In response to Wheat's refusal to

say the statement wasn't true, Aiken

- l6a -

exclaimed the statement was a lie and he

would tell the officers what really

happened.

Aiken immediately answered questions

concerning the Wolf homicide. At

1:15 a.m. he was asked if he wished to

give a statement of his version and he

replied that he would.

Upon this confrontation with Wheat,

the defendant Aiken ceased to mumble his

words, spoke positively, and held his

head up. He appeared to be upset and

excited.

At 1:20 a.m. Sergeant Chase and

Detective Leitch began a conversation

with Aiken in the interview room

concerning the Harp homicide as charged

in count 3 of the information. This

conversation was recorded on exhibit 12

until 2:20 a.m. Both detectives and

Aiken were aware that this conversation

was being taped.

At the outset of said interrogation,

Sergeant Chase admonished the defendant

Aiken of his right not to make any state-

ment, that he had a right to an attorney

before making any statement, and that

any statement given by him could be used

as evidence in a court of law. Aiken

stated that he understood this, and when

asked whether he still wished to give a

statement, he replied, “yes.”

The Pair and Wolf homicides, as

charged in counts 1 and 2, were being

investigated by the Seattle Police

Department, and the Harp homicide was

being investigated by the King County

sheriff's office. It was the intention

of the investigating officers to obtain

separate statements for each homicide.

During the conversation, as recorded on

exhibit 12, Sergeant Chase began writing

exhibit 5, relative to the Harp

- lvja -

homicide. Sergeant Chase, however, did

not complete exhibit 5 during the record-

ing, since Aiken talked not only about

the Harp homicide, but also the Fair and

Wolf homicides. After the recorded

conversation was ended, exhibit 5 was

completed.

At approximately 3 a.m. on April 26,

1965, Detectives Mullen and Orin Church

interrogated Aiken in the interview room

concerning the Fair homicide as charged

in count 1 of the information. At the

outset of the interrogation, Aiken was

advised by Detective Mullen that he did

not have to say anything, that he had a

right to see an attorney before making

any statement, and that anything he did

say could be used against him in a court

of law. The defendant Aiken stated that

he understood these rights. Mullen then

asked the defendant if he desired to use

the telephone. This offer was not

accepted.

During this interrogation by Detec-

tives Mullen and Church, Aiken talked

about his participation in the Pair

homicide. At this time, exhibit 7 was

written by Detective Mullen and signed

by Aiken. All conversations with Aiken

ceased shortly before 5 a.m., and he was

or in a cell at the King County

ail.

Aiken was not questioned further

until 10 a.m. on April 26, 1965, when

Detectives Richard Schoener and Dana

Shearn interrogated Aiken in the county

jail. Detectives Schoener and Shearn

had never met Aiken before, and were not

present in the King County courthouse

during the prior questioning of Aiken.

Prior to the interrogation, Detective

Schoener advised Aiken that he did not

have to say anything, that he had a

- 18a -

right to an attorney before making any

statement, and that anything he _ said

could be used against him in a court of

law. Aiken stated that he understood

this admonition, Detective Schoener

proceeded to write exhibit 14, which was

Signed by Aiken. During this interroga-

tion, Aiken drew the sketch of the Wolf

homicide scene and signed it. The

interrogation concluded at approximately

11:20 a.m.

Aiken maintained in the original

pretrial hearing that he, repeatedly,

requested counsel at various times; but

that all of the officers, including the

jailor at the county jail in Bellingham,

Detective Leitch, and the two interro-

gating officers, completely ignored any

and all requests made by him.

The trial court at the first hearing

was aware that such a request could have

been made, considering that at numerous

Places on the tapes, Aiken's answers

could not be heard; and that throughout

the interrogation, at least prior to the

confrontation, he spoke with his head

down and indistinctly.

The trial court expressly noted in

finding of disputed fact 1, however,

that Officer John Leitch and the offi-

cers, who questioned Aiken in Seattle

during the period in which he stated he

requested counsel, each testified that,

although it was possible, they did not,

at any time, hear Aiken request an attor-

ney, or to contact any person, other

than Wheat. The arresting officer at

Blaine and the Whatcom County jailor

also testified that Aiken, in their pres-

ence, was extremely quiet and sullen and

made no request for counsel at any time.

Believing this testimony, which was

fully supported by the record, and not

- 19a -

discovering anything on the tapes to the

contrary, the trial court entered conclu-

sions as to this disputed fact by hold-

ing that Aiken did not, at any time, at

least in words audible to any of the

officers talking to him, request an

attorney. (Conclusion of disputed fact

l--pretrial conference.)

Upon this court's discovery of what

appeared on the tape (exhibit 11) to be

a request for counsel and pursuant to

our order of May 5, 1967, and the pro-

cedure outlined therein, the trial court

redetermined the issue. It concluded

that Aiken had made a request for coun-

sel on at least two occasions, after

reading Wheat's statement of the Wolf

homicide and before the confrontation.

The transcription by the trial court

reads as follows:

Q. You tell us the truth, then, if

this is a lie. (A. I'd like to see

an attorney, I won't mess around

with you.) 19. This matches all the

physical evidence. The guy's not

lying. A. He is lying. Q. We've

got the physical evidence at” the

scene, A. He is lying. Q. What's

he lying about? What's he lying

about? Tell us what he's. lying

about. (A. I want to see an attor-

ney. “) Q. Well what's he i lying

about? A. He is iying. Q. Where?

Show us where hg is lying in

place, one place in it he's lying.

Just one place. Just one place that

he's lying. A. ... .4

land*The trial court reporter's

transcript indicates that the

response’ at this point is unintel-

ligible. However, as above indi-

cated monitoring of the tape would

- 20a -

appear to indicate the above brack-

et statements.

The tape reveals that Aiken's

answer at about this point is diffi-

cult to apprehend. However, again,

careful monitoring suggests the pos-

sibility of a request for counsel at

thig point.

The tape at this point likewise

reveals Aiken's answer to be some-

what indistinct. However, again,

careful monitoring indicates either

a fourth request for counsel or the

possible statement: “I don't care to

say anything else to that."

As in the first hearing, the trial

court found that Aiken's requests to see

an attorney, or indication that he

desired to remain silent, were inaudible

to the interrogating officers and were

not heard by them. Due to the impor-

tance of this disputed finding of fact,

we have set it out below in its entire-

ty, including the reasons given to

support the trial court's conclusions.

The finding reads:

2. That said requests were inau-

dible to the interrogating officers

and were not heard by them. The

officers did not at any time hear

the defendant Aiken request an

attorney, or that he did not want to

Say anything. The officers did not

ignore any request for an attorney

or a desire to remain silent, for

they hear@ no such requests and

could not ct upon a word or state-

ment they did not hear. This conclu-

sion is based upon the following:

a. All law enforcement officials

who had contact with the defen-

dant Aiken testified that they

at no time heard an audible or

- 2la -

intelligent request for an

attorney from the defendant

Aiken. If they had heard an

audible or intelligent request

or a desire to remain silent,

the interrogation would have

stopped;

Prior to the confrontation with

the defendant Wheat the defen-

dant Aiken held his head down;

he spoke softly, slurred his

words, and he let his voice

trail off. This was confirmed

when the defendant Aiken testi-

fied before the Court during

the original pretrial hearing.

During his testimony he slurred

his words, spoke softly with an

accent difficult to understand.

The interview room in which the

questioning of defendant Aiken

occurred was not soundproof and

numerous noises could be heard

by the interrogating officers

which seriously interfered with

their understanding of defen-

dant Aiken's responses;

During the interview recorded

on Exhibit No. ll the interro-

gating officers were not sit-

ting next to the defendant

Aiken. Instead, Sergeant Chase

was across the room behind a

desk and Detective Mullen was

sitting in the middle of the

room as shown on Exhibit Nos.

140 and 141, and defendant

Aiken was not close to the

microphone.

The trial Court and _ counsel

experienced great difficulty in

determining whether or not a

request for an attorney could

- 22a -

be heard on Exhibit No. lil.

The Court's belief that the

defendant Aiken requested = an

attorney on possibly two occa-

sions is based upon . having

heard Exhibit No. 11 played

several times on the original

tape machine and a new tape

recorder. Many of the defen-

dant's answer were on the

threshold of intelligibility.

With the difficult time the

Court and counsel have had in

trying to hear what the defen-

dant Aiken said, the Court does

not believe that the interrogat-

ing officers heard, nor could

possibly under all the circum-

stances have heard, any request

for an attorney or desire to

remain silent.

Aiken contends it is obvious from

the continuity of questions and answers

that the interrogators were listening

and heard Aiken's requests for an

attorney, especially considering the

expression and tone of voice of the

interrogator after Aiken's second

attempt to exercise his privilege.

{4) This factual determination was

peculiarly a matter for the trial court

to consider and having resolved this

argument adversely to the defendant, we

cannot now retry questions of fact

involving substitution of our judgment

for that of the trial court, where the

finding attacked is based upon conflict-

ing evidence. Haynes v. Washington, 378

U.S. 503, 515, sit, 10 CL. Ed. 3a 513, 83

Sup. Ct. 1336 (1963). The trial court

chose to believe the several officers

who testified that if such a request

were made, it was unintelligible and not

- 23a -

heard by them, and we have carefully

reviewed this factual determination. We

are satisfied that its findings are in

no way distorted and are fully supported

by the record and therefore hold that

the trial court properly found that

Aiken made at least two requests for an

attorney; but that such requests, when

made, were, in fact, unintelligible and

not heard by the officers interrogating

him.

The state contends that irrespective

of the uncommunicated request or desire

of Aiken to have counsel or i remain

silent, these rights were knowingly and

intelligently waived prior to giving his

confessions, by his conduct, observable

demeanor and articulations.

The trial court had no difficulty in

finding that any requests by Aiken fo.

an attorney or any desire on his part to

remain silent were later waived after

his confrontation «ith the defendant

Wheat. Aiken does not assign error to

or dispute any of the facts relied on by

the trial court in finding waiver; but

he does contend that this conclusion,

under the circumstances, was improperly

entered as a matter of law. To better

understand the reasoning of the court,

we have set out its conclusions as

follows:

CONCLUSIONS AS TO THE VOLUNTARY NATURE

OF AIKEN'S ADMISSIONS AND CONFESSIONS.

As heretofore stated, any requests

for an attorney or desire to remain

silent by defendant Aiken were inaudible

and unintelligible to the interrogating

officers. Notwithstanding said requests

the defendant Aiken by his observable

demeanor and actions knowingly and inten-

tionally waived his right to counsel

flowing from such requests, and his oral

- 24a -

and written statements were given freely

and voluntarily. The Court bases this

conclusion upon the following findings

and reasons:

a. That the defendant Wheat personally

verified his statement (Exhibit No.

3) concerning the Wolf homicide at

the request of the defendant Aiken.

It was this verification and _ the

desire to refute Wheat's statement

that caused the defendant Aiken to

tell his side of the story as set

forth in Exhibit Nos. 5, } and 14; ;

(Italics ours.)

b. That within five minutes after the

confrontation between Wheat and

Aiken, defendant Aiken was again

advised of his right to counsel and

that anything he did say could be

used against him in a court of law.

Understanding these rights, he clear-

ly showed a desire to give a state-

ment. He then proceeded to give an

oral statement concerning not only

one but the three homicides;

c. That prior to the confrontation the

defendant Aiken was sullen, quiet

and withdrawn. Immediately there-

after his attitude was positive and

he became alert. He spoke clearly

and he appeared to be upset or angry

with the defendant Wheat;

dad. That the defendant Aiken was advised

at least three times prior to the

beginning of Exhibit No. 12 and the

signing of Exhibit No. 5 that he had

a right to counsel, that he had a

right to remain silent, and that any-

thing he said could be used against

him in a court of law. In addition,

he was advised of his rights under

Article 31 of the Uniform Code of

Military Justice, As demonstrated

- 238 -

by his testimony during the original

pretrial hearing, the defendant

Aiken is not dumb or illiterate by

any means or standards. He is not a

Danny Escobedo, who was an illiter-

ate. He has a high school education

and has been trained in the mili-

tary. He was well aware of these

prahts which had been explained to

m prior to and _ throughout the

interrogation, and knew that he did

not need to answer any questions

after the confrontation with the

defendant Wheat. (Italics ours.)

That prior to the signing of Exhibit

No. 7 the defendant Aiken was again

advised of his right to an attorney,

to remain silent, and that anything

he said could be used against him in

a court of law. On this occasion he

was offered the opportunity to use a

telephone and declined such use.

While aware of his rights he pro-

ceeded to sign Exhibit No. 7 without

any hestitation and without 8 any

request for assistance from anyone;

That defendant Aiken was’ given

another opportunity to request coun-

sel at 10:00 A.M. on April 26, 1965.

At that time Sergent Schoener and

former Detective Dana Shearn advised

him of his right to remain silent,

his right to counsel, and the fact

that anything he said could be used

against him in a court of i law.

Again defendant Aiken proceeded to

give a statement concerning the Wolf

homicide and to draw a sketch of the

homicide scene, demonstrating his

knowledge of the area. It is to be

noted that the interrogating offi-

cers, Sergeant Schoener and former

Detective Shearn, were not present

- 26a -

in the King County Courthouse prior

to 9:00 A.M. on April 26, 1965, when

the defendant Aiken signed Exhibits

Nos. 5 and 7. They could not have

possibly known of any request for

counsel by the defendant Aiken;

g. That the Court believes the testi-

mony of the several officers who

stated that they did not at any time

hear the defendant Aiken make a

request for an attorney, to make a

phone call, or express a desire to

remain silent. That the Court

believes that if such requests were

made or attempted to be made by

defendant Aiken, such requests were

inaudible and unintelligible to such

officers. That the Court further

concludes that all statements made

by defendant Aiken were freely and

voluntairly given after having been

fully and amply advised of his con-

stitutional rights to an attorney

and to remain silent. (Italics

ours.)

Aiken argues there could be no know-

ing and intelligent waiver under these

circumstances; since he believed’ the

police officers did hear his requests

for an attorney, and could only conclude

that by not receiving one, his requests

had been ignored; that as a result, his

later incriminations were not admissible

in evidence as involuntarily given due

to police threats that he would be

charged on every single count if he

didn't cooperate.

{5} If Aiken's attempts to exercise

his constutitional rights were frustrat-

ed by improper police tactics in ignor-

ing his requests or by duress, we would

agree with the defendant that his state-

ments should not have been received in

- 27a -

evidence for consideration by the jury.

The constitution enjoins all unfair in-

terrogation practices which are likely

to exert such pressures upon an individ-

val so as to disable him from making a

free and rational choice whether to

speak to the police. See Miranda,

supra, at 460; Escobedo v. Illinois,

Supra, Malloy v. an, 378 U.S. 1, 12

° ° ’ up. Ct. 1489 (1964).