Petition — Wilson v. Zant

yo. 82 5567

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1982

JOSEPH WILSON, JR.

PETITIONER

V.

WALTER D. ZANT, SUPT.

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

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RECEIVED

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HARVEY

COUNSEL FOR PETITIONER

BECKER §& HARVEY, P.C.

3349 piedmont Road N.E.

Suite 203

Atlanta, georgia 30305

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INDEX

PERNT OG 6 ego ky Wee pies 8 ean « Cente ib me eek

PURSE EOT AES 6 EON OR eA” kee hee a ere at ane ieee

Vees LUM SRORDNEED Ss op) eke abe 6 eee ed tas

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CONSTITUTIONAL PROVISIONS INVOKED. . .......2..-.-2

DENI MMONE Ge THE CABR ii ee do 06 bee ee eee 8

4

REASONS FOR GRANTING THE WRIT ... ......e-e«e-e

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APPENDIX:

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The introduction at Petitioner's Trial of

statements made to police during custodial

interrogation, after he had requested an

attorney, but before one was provided, violates

the Fifth and Fourteenth amendments tc the

United States Constitution.............. ---4-8

The third party and tangential evidence dis-

covered and introduced in Petitioner's trial

as a result of Petitioner's inadmissible

statement must be excluded under the Fifth

QMORGMONE 565k oss bina Re ewew ORs eke ede ey CS

- Opinion and Judgment of the Supreme

Court: Of Georgia see sien. oe aan oD. A

- Order Extending Time to File Petition

for Writ of Certiorar’ .):.. 4. 6 s:tApp. B

Order of the Supreme Court of Georgia

steying its remittitur. 2). 6 60's « App.’ C

Unpublished opinion of the Superior

Court of Butts County, Georgia, in

Petitioner's state Habeas petition. . App. D

CITATIONS

Chapman v. California

6 U. S. 18 (1967)

Edwards v. Arizona,

~ 451 U.S. 477 (1981)

Fare v. Michael C,

442 U. S. 707 (1979)

Harrison v. United States

392 U.S. 219 (1968). C«w

Michigan v. Mosle

423 U. S. 96 (1975)

Michigan v. Tucker

417 U. S. 433 (1974)

Milton v. Wainwright

407 U.S. 371 (1972)

Miranda v. Arizona

384 U. S. 436 (1966)

United States v. Downin

665 F2d 404 (ist Cir. 1981)

Page

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

JOSEPH WILSON, JR.,

PETITIONER

WALTER D. ZANT, SUPT.,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

The Petitioner, Joseph Wilson, Jr., respectfuily prays

that a writ of certiorari issue to review the judgment and

opinion of the Supreme Court of Georgia entered in this pro-

ceeding on April 21, 1982.

OPINION BELOW

The opinion of the Supreme Court of Georgia in this

proceeding (Appendix A, infra, p. _) is reported as

Wilson v. Zant, 249 Ga. 373 (290 SE2d 442) (1982). The opinion

of the Supreme Court of Georgia in Petitioner's direct appeal

is reported as Wilson v. State, 246 Ga. 62 (268 SE2d 895) (1980),

cert. denied, 449 U. S. 1103.

JURISDICTION

The judgment of the Supreme Court of Georgia was entered

on April 21, 1982, affirming Petitioner's conviction of murder.

kidnapping with bodily injury and his sentence of death. A

timely petition for rehearing was denied on May 17, 1982. An

order extending time to file this petition was granted on

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July 16, 1982 (Appendix B. infra, p. ). The Supreme Court

of Georgia has entered an order staying the remittitor of the

judgment in this case pending ruling on this Petition. (Appendix

C, infra, p. ). The jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

Whether the introduction at Petitioner's Trial of

statements made to police during custodial interrogation,

after he had requested an attorney, but before one was

provided, violates the Fifth and Fourteenth amendments

to the United States Constitution.

Whether the third party and tangential evidence dis-

covered and introduced in Petitioner's trial as a

result of Petitioner's inadmissible statement must be

excluded under the Fifth amendment.

The Fifth Amendment, United States Constitution, which

provides; inter alia:

No person 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...

The Fourteenth Amendment, United States Constitution,

which provides, inter alia:

[N]o 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 to equal

protection of the laws.

STATEMENT OF THE CASE

Petitioner was tried and convicted of murder, kidnapping

with bodily injury and possession of a firearm during the

commission of a felony, in Forsyth County, Georgia, on August

16, 1979, and was thereafter sentended to death.

The facts necessary to place in their setting the questions

now raised, as adopted by the Supreme Court of Georgia (290SE2d

at 445) are as follows:

The Petitioner was arrested at his home at approximately

6:30 a.m. on February 27, 1979, read his Miranda rights, and

transported to the Forsyth County Sheriff's Department where he

was held in the “drunk tank" until approximately 8:00 a.m.

Petitioner was then removed from the “drunk tank" and questioned

by Sergeant J. C. Adams. At trial, Sergeant Adams acknowlédged

that at some point between arrest and interrogation Petitioner

requested an attorney. However, an attorney was not provided,

and after further Miranda warnings and signing a written Miranda

acknowledgement and waiver form, Petitioner gave a statement to

the authorities.

In this statement, Petitioner denied committing the crimes

and claimed alibi, stating he had been at home with his family

at the time the victim was killed. Under further questioning,

Petitioner denied owning a shotgun and stated that the only gun

he owned was a toy “tin-can alley" gun which he had given his

children. He admitted that he drove a truck similar to one

previously described by police interviewees, and informed the

police that the truck was owned by his business partner, David

Shaffer. The police then interviewed Shaffer, obtained pictures

of the truck, and a statement from Shaffer that Petitioner had

bought a shotgun from one Joseph Evankovech.

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At trial, during the state's case-in-chief, various witnesses

for the State related to the jury most of Petitioner's statement.

The State also introduced the toy gun to show it could not have

been the gun seen by the witnesses. Further, the State elicited

direct testimony from Shaffer and Evankovich about the truck and

shotgun, and introduced photographs of the truck.

Further facts may be related as necessary.

REASONS FOR GRANTING THE WRIT

1, The use of Petitioner's statement against him at his

trial violated his right under the Fifth and Fourteenth

Amendments to have counsel present during custodial

interrogation after invoking this right.

Petitioner contends that the introduction of the statement

he gave to police during custodial interrogation after he had

requested an attorney but before one was provided violates his

Fifth and Fourteenth amendment rights as defined by this Court in

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

The habeas court found, as a matter of fact, that Petitioner

had properly invoked his right to counsel, that the police had

subsequently initiated custodial interrogation before counsel was

present and, therefore, concluded that the resulting statement

should not have been admitted at Petitioner's trial, relying on

Edwards v. Arizona, supra. (decided after Petitioner's trial).

(Appendix D, infra.)

The Supreme Court of Georgia agreed, and held:

" ..-We therefore find that the defendant's

statement, given pursuant to police initiated

custodial interrogation after the defendant had

invoked his right to counsel, was inadmissible

at trial during the state's case-in-chief;"

290SE2d at 446

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However, both the habeas court and the Supreme Court of

Georgia went on to hold that since the statement was not a

confession, its erroneous admission was harmless beyond a

reasonable doubt. Id., at 446, 447.

(A) The Miranda rationale applies to the instant

statement.

This Court specifically spoke to this issue in the Miranda

opinion itself:

"The privilege against self-incrimination

protects the individual from being compelled

to incriminate himself in any manner; it does

not distinguish degrees of incrimination,

Similarly, for precisely the same reason, no

distinction may be drawn between inculpatory

statements and statements alleged to be merely

‘exculpatory.' If a statement made were truly

exculpatory it would, of course, never be used

by the prosecution, In fact, statements merely

intended to be exculpatory by Defendant are often

used to impeach his testimony at trial or to

demonstrate untruths in the staterc»t given

under interrogation and thus prove guilt by

implication. These statements are incriminating

in any meaningful sense of the word and may not

be used without the full warnings and effective

waiver required for any other statement..."

Miranda v. Arizona, 384 US 436,

476-77 (1966).

This is precisely the situation in Petitioner's case.

There is no doubt that Edwards is a reaffirmation of the

Miranda principles. Indeed, the Court took specific pains to note

that its opinion was intended to

".,..reconfirm these views and to lend them

Substance, [and) emphasize that it is

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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."

Edwards v. Arizona, 477 US at

(b) Edwards established a per se rule.

Beyond reiterating the standard of knowing and intelligent

waiver, this Court in Edwards added an “additional safeguard"

to ensure that the right to counsel, once exercised, is effectuated:

when an accused has invoked his right to have counsel, he is not

subject to further interrogation by authorities until counsel is

provided, unless the suspect initiates the dialogue. Only by

the use of such an objective guideline can a suspect's rights

during custodial interrogation be protected. The Edwards

majority specifically mandates that it be the suspect who

initiates any subsequent interrogation, thus any finding of a

valid waiver must include the "necessary fact that the accused,

not the policy, reopened the dialogue with the authorities."

(emphasis added)

Moreover, the Court specifically distinguished Michigan

v. Mosley, 423 US 96 (1975) - which had rejected a per se rule

in the right to silence context - by reaffirming a stronger

standard in the right to counsel cases.

That a per se_ rule was indeed intended was accepted by

the Supreme Court of Georgia in its opinion below. 290SE2d at 446.

(c) Violation of a per se constitutional rule

cannot be harmless; and is not harmless

in Petitioner's case,

As a general rule, a per se rule establishes clear guidelines

for lower courts to follow: From a threshold question of fact

flows a conclusion of law; as opposed to a case-by-case approach

which fails to generate any meaningful precedent. Further, a

per se rule precludes after-the-fact subjective inquiry and

ensures that a suspect's decision to speak is "truly the product

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ef free choice." Miranda v. Arizona, 384 US at 457.

Thus, once an error of constitutional magnatude is found,

the Courts have addressed the question of whether the error

was harmful,

In effecting an approach to the determination of the

harmfulness of a “substantial” constitutional error, this

Court has noted that an error which “possibly influenced" the

jury adversely to a defendant “cannot... be conceived of as

harmless." Chapman v. California, 386 US 18 (1967).

An appellate court, when faced with a violation of a

per se rule affecting such a "substantial" right as the right

to counsel, should focus on the nature of the constitutional

error - as opposed to what can be denominated as the “over-

whelming evidence" test, i.e. once evidence erroneously admitted

is excluded, there remains overwhelming evidence of guilt. See,

Milton v. Wainwright, 407 US 371 (1972).

An approach which focuses on the other evidence in the

case usurps the very integrity of the rule itself; as the right

protected sub judice is so important that it can only be

protected by objective indicia of compliance. Further, such

an approach usurps the jury's function far more significantly

than a limited inquiry into an examination of the error itself.

Finally, such a test is inconsistent with the notion that all

accused individuals, both guilty and innocent, are entitled to

a fair trial and te all the protections of the Constitution.

The admission of Petitioner's statements was harmful in

its use to imply guilt by attempting to show untruths contained

therein; and impelled the defendant to take the stand. See,

Harrison v. United States, 392 US 219 (1968). The statement

lead to the discovery and admission of numerous other physical

items as well as witnesses for the state.

Because Petitioner's conviction and sentence to death is

based, in large part, on the introduction of his uncounseled

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custodial statement taped in violation of Edwards v. Arizona,

the conviction and sentence must be set aside.

2. The third party and tangential evidence

discovered as a result of Petitioner's

inadmissible statement must be excluded

under the Fifth Amendment exclusionary

rule.

In its opinion below, the Supreme Court of Georgia denominated

the Edwards ruling to be "an application of the prophylactic

rules of Miranda." 290SE2d at 447. Thus, while the "fruit"

of a constitutional right itself must be suppressed; the fruit

of a violation of a prophylactic rule is not automatically

subject to the exclusionary rule. 290SE2d at 447. The Supreme

Court of Georgia, based on this logic, then held "that the

exclusionary rule does not apply to evidence derived from a

voluntary statement obtained in violation of Edwards v. Arizona...".

290 SE2d at 448.

(a) Edwards protects the right to counsel.

As noted by the Court in Edwards, “an accused's request

rights..." citing Fare v. Michael C.,442 US 707, 719 (1979).

Edwards reaffirmed the right protected by Miranda, that being

the "Fifth and Fourteenth Amendment right to have counsel

present during custodial interrogation."

The instant case does not include the question of whether

Petitioner was advised of his rights pursuant to Miranda, but

whether his right to counsel was violated.

The Edwards case clearly espoused protection of the right,

not an application of the Miranda rules

(B) The exclusionary rule applies to evidence

derived in violation of the right to counsel.

Peeves. CO

The First Circuit Court of Appeals specifically addressed

this question in United States v. Downing, 665F2d 404 (1st Cir.

1981). In Downing, as in the opinion below, the government

relied on Michigan v. Tucker, 417 US 433, in which a failure to

advise a suspect of his right to counsel did not require

exclusion of evidence obtained as a result of the accused's

response to police questioning. However, as the Downing court

notes "Tucker is clearly not controlling," as "The Court

explicitly declined to determine the scope of the Fifth Amendment

exclusionary rule when, as here, the interrogation occurred after

the Miranda decision." Id., at 407 (emphasis in original). The

Downing court cut right to the gravamen of the issue by noting

that Tucker itself distinguished between a violation of the Fifth

Amendment right itself and a violation of “The prophylactic rules

developed to protect that right." Id., at 408. In Tucker the

police conduct was not unconstitutional but only a disregard of

the procedural rules later developed in Miranda.

By contrast, in Petitioner's case - as in Downing - there

was an explicit request for the presence of counsel. Thus,

while Miranda and Tucker "may have provided flexibility to police

in administering the safeguards, it provided no similar leeway for

police to ignore a suspect's rights to have counsel present once

that right has been asserted." Downing, supra, at 408.

After further analysis, the Downing court held that

any evidence obtained as a result of violating

[Petitioner's] Fifth Amendment right to have

counsel present during custodial interrogation

cannot be introduced against him at trial.

The analysis of the Downing court is clearly correct. Thus,

the opinion of the Supreme Court of Georgia is erroneous and

must be reversed.

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CONCLUSION

The judgment below is a departure from the recent unambiguous

decisions of this Court which require that convictions based on

statements derived from police initiated custodial interrogation

after counsel has been requested, but before counsel has been

provided, be set aside. As such, it represents a breach in the

wall erecteli by the Fifth Amendment to the Constitution and

the decisions of this Court which were designated to protect a

citizen from being convicted by his State through use of state-

"ments made by him without the aid of counsel. This petition for

writ of certiorari should therefore be granted.

Respectfully submitted.

a. |

, all, 2

armen —

Counsel for Petitione

3349 Piedmont Rd., N.E.

Piedmont West, Suite 203

Atlanta, Georgia 30305

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