Petition for Writ of Certiorari — Texas v. Wilkerson

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8 3 - 6 5 4 Office Supreme Court, U.S.

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OCT 18 1993

ALEXANDER L. STE

NO. CLERK ”

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

THE STATE OF TEXAS,

Petitioner

CLAUDE LEE WILKERSON,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

JoHN B. HoLMES, JR.

District Attorney

Harris County, Texas

WINSTON E. CocHRAN, JR.

Don STRICKLIN

Dick Bax

Assistant District Attorneys

CaLvin A. HARTMANN

Assistant District Attorney

Chief of the Appellate Section

Counsel of Record

201 Fannin, Suite 200

Houston, Texas 77002

Tel.: 713/221-5826

Attorneys for Petitioner

_————————E—

Alpha Law Brief Co., Inc—5606 Parkersburg—Houston, Texas 77036—223-3003

QUESTIONS PRESENTED

SHOULD EDWARDS v. ARIZONA BE APPLIED

RETROACTIVELY?

Il.

CAN A VIOLATION OF THE RULE STATED IN

EDWARDS BE CURED IF A WAIVER OF THE AC-

CUSED’S MIRANDA RIGHTS OCCURS BEFORE

THE INCRIMINATING EVIDENCE IS OBTAINED?

Il.

SHOULD THIS COURT OVERRULE OR MODIFY

THE HOLDINGS OF MIRANDA v. ARIZONA AND

EDWARDS v. ARIZONA?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......--.--+e-eseeereeees I

TABLE OF AUTHORITIES ..........----seeceeeeees Ill

OPINION BELOW ........---e cece ee ere t eee ceeetees 1

JURISDICTION... 2... ee estes enn e teen ceneneees 2

CONSTITUTIONAL PROVISIONS AT ISSUE ......--- 3

STATEMENT OF THE CASE ......------++eeeretees 4

Proceedings in the Trial Court .......----++++++++5 4

Appellate Proceedings .....-..-+++++ssseerrerrreee “

REASONS FOR GRANTING THE WRIT .......------ 6

tb 4d) PEPER ETOTOCL CCT ore ee 6

I. EDWARDS V. ARIZONA CREATED A NEW

RULE WHICH SHOULD NOT BE APPLIED

RETROACTIVELY .......-----eeeeeeeeeeees 9

II. EVEN IF THE RESPONDENT’S MIRANDA

RIGHTS WERE VIOLATED BY REINTER-

ROGATION INITIATED BY THE POLICE,

THE CONFESSION WAS NOT TAINTED BE-

CAUSE IT WAS ONLY TAKEN AFTER AN

INTERVENING EVENT ESTABLISHED WAIV-

ER OF MIRANDA RIGHTS ......---++++++5: 14

III. THIS COURT SHOULD ABANDON THE ME-

CHANICAL RULES OF MIRANDA AND ED-

WARDS IN FAVOR OF AN INQUIRY INTO

VOLUNTARINESS BASED ON THE TOTAL-

ITY OF CIRCUMSTANCES .......-----++++: 19

COMICTRISIONE ow. nnn vk cna waneuinenea nh theese aeons 23

APPENDICES:

APPENDIX A

Opinion of the Court of Criminal Appeals of Texas ... la

APPENDIX B

Final Ruling of the Court of Criminal Appeals ..... 27a

Ill

TABLE OF AUTHORITIES

CASES Page

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d

ae Cea nig Rete i Se RRR Ra 21

Brown v. Louisiana, 447 U.S. 32, 100 S.Ct. 2214, 65 L.Ed.

ee 21

Coleman v. State, 646 S.W.2d 937 (Tex. Crim. App. 1983) 9

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

a eels atidudcas passim

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.

SR aaa 15

Illinois v. Gates, US. , 103 S.Ct. 2317,

L.Ed.2d ae er 21

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.

eae Sia aay ae aS 4

Johnson v. New Jersey, 384 US. 719, 86 S.Ct. 1772, 16

NE Oc uc nasescesoccav ccs, 12, 13, 20

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.

a GR Se Tee ean 10, 16, 17,22

Michigan v. Long, US. , 103 S.Ct. 3469,

L.Ed.2d ee seo wa get oe 5 5 3

Michigan v. Mosley, 423 US. 96, 96 S.Ct. 321, 46 L.Ed.

A RTE fe Dll a a 12,13

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.

aR a I ane passim

Oregon v. Bradshaw, US. , 103 S.Ct. 2830, %

L.Ed.2d Ee ein 10, 12, 17, 22

Solem v. Stumes, 33 Cr. L. 4105, No. 81-2149 (July 6,

_. (aaa eg Se 5, 6,9, 10

State v. Brown, 317 N.W.2d 714 (Minn. 1982), cert.

denied 33 Cr. L. 4105 (July 6, 1983) ................. 9

State v. McCloskey, 90 N.J. 18, 446 A.2d 1201 (1982) 9

State v. Shea, 421 So.2d 200 (La. et x t4 wea yk ot 9

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.

ee ae vas gi cuss oc Kdba waa cand 11,13

Stumes v. Solem, 671 F.2d 1150 (8th Cir. eae 9

United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982) 9,14

United States v. Johnson, US. , 102 S.Ct. 2579,

Page

CONSTITUTIONAL PROVISIONS

Amendment Five, United States CIE gg ka kd ccssn’

Amendment Fourteen, Section 1, United States Constitution

Article I, Section 10, Texas Constitution te I year ie heen Se?

Article L Section 19, Texas Constitution .............---

Ww w&

Unnan

STATUTES

28 US.C. Sectiom 1257(3). ..... cc cccscesscccessccsace

Article 37.071(b), V-A.C.C.P. 1... 0... cee cece eee eee.

Article 37.071(f), V-A.C.C.P. 10.0... eee eee eee eee eee

V.T.C.A., Penal Code, Section 12.31(a) ......-.--.-+--.

fs yo A. Penal Code, Section 19.03(a)(2) .........-.-5

SUPREME COURT RULES

A | eee rrr er rrr errr rrr rere ¢

SS hi rere riers errr rrr re ere cy 9,14

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

THE STATE OF TEXAS,

Petitioner

CLAUDE LEE WILKERSON,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

Petitioner respectfully requests that a writ of cert-

iorari issue to review the decision and judgment of the

Court of Criminal Appeals of Texas in the case of The

State of Texas v. Claude Lee Wilkerson, number 68,937

in the court below, which reversed Respondent’s con-

viction for capital murder.

OPINION BELOW

The opinion of the Court of Criminal Appeals of

Texas in this cause, No. 68,937 on the docket of that

court, is reproduced in the Appendix “A”. The opinion

is not yet commercially reported.

JURISDICTION

The Court of Criminal Appeals rendered its decision

on May 18, 1983. The State timely filed its motion for

rehearing, accompanied by a motion for leave to file

for rehearing, as required by Texas state appellate rules.

The Court of Criminal Appeals denied the motion for

leave to file for rehearing on July 10, 1983. The State

then timely filed a second motion for rehearing, ac-

companied by a motion for leave to file for rehearing,

pointing out inter alia that this Court has recently agreed

to review the question of the retroactivity of Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d

378 (1981). The Court of Criminal Appeals denied the

second motion for leave to file for rehearing on Septem-

ber 14, 1983. Thereupon the State filed a motion to stay

issuance of the mandate by the Court of Criminal Ap-

peals. On September 19, 1983 the Court of Criminal Ap-

peals stayed issuance of its mandate for a period of

thirty days.

Juridiction of this Court is invoked under 28 U.S.C.

Section 1257(3), which states in part that “a final judg-

ment by the highest court of a State in which a decision

could be had may be reviewed by the Supreme Court

.. . by writ of certiorari, .. . where any... right...

is . . . claimed under the Constitution . . . of the United

States.” The decision of the Court of Criminal Appeals

was clearly based on the Fifth and Fourteenth Amend-

ments of the United States Constitution and Supreme

Court caselaw, primarily Edwards, supra, and Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 297

(1966). The Court of Criminal Appeals did not even

discuss Texas state constitutional principles. There was

no independent state basis for decision. See Michigan v.

Long, ___ U.S. ___, 103 S.Ct. 3469, L.Ed.2d

—_— (July 6, 1983).

CONSTITUTIONAL PROVISIONS AT ISSUE

The Fifth Amendment of the United States Con-

stitution:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment 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. (Emphasis added)

The Fourteenth Amendment of the United States Con-

stitution, 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, with-

out due process of law; nor deny to any person with-

in its jurisdiction the equal protection of the laws.

(Emphasis added)

STATEMENT OF THE CASE

I. Proceedings in the Trial Court

On February 17, 1978 the Respondent was charged

by indictment with the felony of capital murder under

V.T.C.A., Penal Code, Section 19.03(a)(2). The in-

dictment alleged that the Respondent intentionally killed

William Fitzpatrick while in the course of committing

and attempting to commit aggravated robbery and ag-

gravated kidnapping. The penalty for this offense is

either life imprisonment or death. V.T.C.A., Penal Code,

Section 12.31(a). Vital to the State’s case was the ap-

pellant’s written confession, in which the appellant de-

scribed how he and three cohorts kidnapped three per-

sons in the course of looting a jewelry store in Houston

owned by one of the victims, Don Fantich. The Re-

spondent’s cohorts took the three victims to a farm in

Shiner, Texas, and shot them. Until the Respondent gave

his confession the police were not certain that the vic-

tims had been killed. The triai court admitted the Re-

spondent’s confession after conducting a hearing as re-

quired by Jackson v. Denno, 378 U.S. 368, 84 S.Ct.

1774, 12 L.Ed.2d 908 (1964). The jury found the ap-

pellant guilty of capital murder. The jury then returned

affirmative answers to the three special issues under

Article 37.071(b), V.A.C.C.P. which are used to deter-

mine punishment. Accordingly the trial court assessed

the death penalty.

II. Appellate Proceedings

The Respondent’s conviction was automatically ap-

pealed to the Court of Criminal Appeals of Texas, as

provided in Article 37.071(f), V.A.C.C.P. On appeal,

the Respondent argued inter alia that the introduction of

his confession was in violation of his rights under Amend-

ments V and XIV, United States Constitution, and Art-

icle I, Sections 10 and 19, Texas Constitution. The Re-

spondent specifically argued that his confession was taken

after he had invoked his right to discontinue any inter-

rogation without the presence of his attorney, a right

secured by this Court’s interpretation of the Fifth and

Fourteenth Amendments in Miranda v. Arizona, 384

U.S. 436, 86 S.Ct. 1602, 64 L.Ed.2d 297 (1966) and

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981). By a 5-4 majority, the Court of

Criminal Appeals held that the Respondent’s rights under

Miranda and Edwards were violated and that the written

confession should have been suppressed. The four dis-

senting judges argued that the appellant had waived his

right to the presence of counsel during interrogation

when, during a chance meeting with his attorney at the

offices where the interrogation had resumed, the Respond-

ent told his attorney that he wanted to give a statement

and that he did not need to have the attorney present.

The decision was based entirely on federal constitutional

law, with no mention ever being made of Article I, Sec-

tions 10 and 19 of the Texas Constitution.

The State’s motion for rehearing stressed inter alia that

Edwards, supra should not have been applied retroactively

to the case at bar, wherein the confession was obtained

and the Respondent convicted several years before the

Edwards decision was issued. The Court of Criminal

Appeals denied leave to file the motion for rehearing

without any written opinion. In a second motion for re-

hearing, the State pointed out that this Court recently

granted certiorari in Solem v. Stumes, 33 Cr. L. 4105,

No. 81-2149 (July 6, 1983) to review the question of the

retroactivity of Edwards. Nevertheless, the Court of

Criminal Appeals also denied leave to file the second

motion for rehearing.

REASONS FOR GRANTING THE WRIT

OVERVIEW

At the outset it is important to note that the Court of

Criminal Appeals misread the record in one important

respect. The court below held that the Respondent as-

serted his right to converse with the police only with the

aid of counsel, a right which is established in Miranda,

supra. Based on this premise, the court below analyzed

this case in terms of Edwards, supra. Actually the record

does not reflect that the Respondent ever invoked that

particular right under Miranda. Rather, the Respondent

asserted the more general right to remain silent and

terminate interrogation. For analytical purposes, this

distinction is less important than it might appear, as will

be explained. First, however, the reason for this con-

fusion should be explained.

After the police obtained information leading them to

suspect the Respondent in the disappearance of three

people and a known robbery, the Respondent was de-

tained on Tuesday, January 24, 1978. Attorney Fred

Dailey was retained by a third party—Don Fantich’s wife

—to represent the Respondent. Dailey met with the Re-

spondent before the Respondent appeared before a grand

jury. The Respondent was released after his grand jury

testimony. The next day, Thursday, the Respondent was

admitted to a private hospital under arrangements made

by the District Attorney. That evening detectives and

assistant district attorneys talked to the Respondent in

the presence of counselor Dailey. After several hours,

the Respondent announced that he did not want to have

any further conversation with the authorities. Attorney

Dailey also told a detective that he did not want the police

to interrogate the Respondent further. Neither the Re-

spondent nor Dailey ever made the conditional demand

that interrogation take place only in the presence of

counsel. The next day interrogation resumed at the police

station, and later at the offices of the District Attorney.

Counselor Dailey was not present. This further interroga-

tion was initiated by the police.

As indicated above, the Miranda right to counsel was

never specifically asserted. Even the Respondent’s ori-

ginal brief referred to this right as “implicit” in the ter-

mination of the interrogation at the hospital. Certainly it

was not an assertion of the right in the same context as

Edwards, supra, where Edwards had no opportunity to

consult counsel before he was interrogated.

Once the court below characterized the issue as one of

right to counsel, it followed that Edwards would be per-

tinent. In Edwards, Edwards both asserted a general right

to silence and demanded an attorney, but this Court

found it sufficient to discuss only the latter Miranda right.

Is the analytical framework of Edwards appropriate here?

The Petitioner will reluctantly agree that it could be

unless Edwards is overruled as urged in Part III infra.

The Respondent did assert the right to remain silent,

which if anything is broader than the right to delay inter-

rogation until an attorney is summoned. Indeed, the ques-

tion of “initiation” of further contact becomes important

when counsel is demanded precisely because a subpart of

the right to counsel is the right to remain silent until

counsel is available. The Petitioner submits that reinterro-

gation should be deemed valid following assertion of the

right to terminate if reinterrogation is initiated by the

accused. This case does not fit that scenario. Unfortun-

ately, it follows that reinterrogation initiated by the police

after a suspect terminates an interrogation should not be

permitted. That the court below misread the record turns

out to be of little significance.

Granted that the court below had to come to grips

with Edwards, the real question is whether the court be-

low applied Edwards correctly. For one or the other of

the following alternative reasons, the application of Ed-

wards was incorrect. This in turn depends on what the

Edwards decision really means. First, if Edwards means

that police initiation of reinterrogation indelibly tainted

all that followed, regardless of other facts and circum-

stances, Edwards constitutes a new rule which should not

have been applied retroactively in this case. Second, the

Petitioner reads Edwards as leaving open the question of

the correct result under the facts of this case, which are

decisively different from those in Edwards and Miranda.

Third, if conformity to Edwards requires retroactive ex-

clusion of the confession because police initiation of re-

interrogation was a per se violation of the Fifth Amend-

ment, then the Edwards rule is unjust. Since that unjust

per se rule was not necessary in Edwards, Edwards should

be overruled. This Court should return to the pre-Miranda

standard of analyzing the voluntariness of the confession

based on the total facts of each case, rather than impos-

ing mechanistic rules which elevate form over substance.

At the very least, “initiation” should not be a threshold

question, contrary to what Edwards indicates.

EDWARDS v. ARIZONA CREATED A NEW

RULE WHICH SHOULD NOT BE

APPLIED RETROACTIVELY

The interrogation, confession, and conviction of the

Respondent all occurred well before this Court issued its

opinion in Edwards v. Arizona, supra. This raises the

question whether the court below was correct in applying

Edwards retroactively to this case. This issue was raised

by the Petitioner in the Motion for Rehearing, but the

Court of Criminal Appeals has totally failed to address

this question. Edwards has been applied retroactively

in several jurisdictions, including Texas. See Coleriix» v.

State, 646 S.W.2d 937 (Tex. Crim. App. 1983); State

v. Brown, 317 N.W.2d 714 (Minn. 1982); United States

v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982). Other juris-

dictions have held that Edwards should not be applied

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

1201 (1982); State v. Shea, 421 So.2d 200 (La. 1982).

However, this Court has never addressed the question of

retroactivity. Review by this Court is warranted under

Rule 17.1(b) and (c) of this Court. Although Minne-

sota’s petition for writ of certiorari was denied on July

6, 1983 in Minnesota v. Brown, 33 Cr. L. 4106, this

Court granted certiorari in Solem v. Stumes, 33 Cr. L.

4105 (July 6, 1983), in order to address the question of

the retroactive application of Edwards v. Arizona. In

Stumes v. Solem, 671 F.2d 1150 (8th Cir. 1982), the

Eighth Circuit held that Edwards applied retroactively to

a federal habeas corpus petition after exhaustion of

Stumes’ direct appeal. Unlike Solem v. Stumes, the case

at bar presents the question of the retroactive applicability

of Edwards to a direct appeal which is not yet final. This

cause is an appropriate companion to Solem v. Stumes on

the retroactivity question.

Actually, there are two questions concerning retroac-

tive application of Edwards here. First, there is the ques-

tion whether the general rule stated in Edwards should

be retroactive. The holding of Edwards was that where

Edwards asserted his right to have counsel present during

interrogation, interrogation could only continue if counsel

were provided or if Edwards had initiated the subsequent

dialogue with the police. This Court held Edwards’ con-

fession inadmissible because counsel was not provided and

the subsequent interrogation was initiated by the author-

ities, not by Edwards. The meaning of the Edwards rule

was discussed in Oregon v. Bradshaw, ____U.S. , 103

S.Ct. 2830, ___L.Ed.2d___._ (June 23, 1983). As noted

in Justice Powell’s concurring opinion in Bradshaw, 103

S.Ct. at 2836, both the plurality opinion and the dis-

senting opinion in Bradshaw viewed Edwards as estab-

lishing the “initiation” question as the first step of a two-

step analysis, the second step being the application of

the standard under Johnson v. Zerbst, 304 U.S. 458, 58

S.Ct. 1019, 82 L.Ed. 1461 (1938) that requires examina-

tion of the “totality of the circumstances.” That is, deter-

mining who initiated the interrogation becomes a thres-

hold question under Edwards, such that the State’s failure

to show that the accused initiated reinterrogation auto-

matically renders the fruits of that reinterrogation inad-

missible. Although Justice Powell noted some confusion

among lower courts whether Edwards indeed created a

per se rule, Justice Marshall’s dissent in Bradshaw, 103

S.Ct. at 2840, fn.2 states “In my view, Edwards unam-

biguously established such a rule.”

Second, the present cause contains one important factor

not found in Edwards. Between the time that the police

initiated reinterrogation and the time they obtained the

confession from the Respondent, the Respondent met with

his attorney. Even if the per se rule of Edwards should be

applied retroactively on facts similar to those in Edwards,

the Petitioner submits that application of Edwards so as

to nullify the curative effect of such an intervening event

should not be done retroactively.

The principles of retroactivity were recently discussed

in United States v. Johnson, ___U.S.___., 102 S.Ct.

2579, ___L.Ed.2d_____ (1982). Johnson suggests the

following guidelines: (1) First this Court should deter-

mine whether a decision “merely has applied settled pre-

cedents to new and different factual situations” or estab-

lishes a new rule that “was unanticipated.” 102 S.Ct. at

2587. A finding that a decision merely applies old prece-

dents requires that the decision be given retroactive effect.

(2) If this Court finds that the new rule was unantici-

pated, it should determine retroactivity under criteria sug-

gested in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967,

18 L.Ed.2d 1199 (1967): (a) the purpose to be served

by the new standards, (b) the extent of the reliance by

law enforcement authorities on the old standard, and (c)

the effect on the administration of justice of a retroactive

application of the new standards. Johnson, supra, 102

S.Ct. at 2584, 2587.

In his concurring opinion in Edwards, 101 S.Ct. at

1888, Justice Powell observed that the focus on “initia-

tion” as a threshold question was a clear departure from

the old test of Miranda that weighed the totality of the

circumstances. The Edwards majority opinion tacitly ac-

knowledged that this was a new rule, in that the opinion

stated the rule as a holding, without citing any prior

case which had stated this rule as a decisive principle.

101 S.Ct. at 1884-1885. Footnote 9 of Edwards stated

that the Fifth Circuit had held in two cases that initiation

by an accused of subsequent interrogation was necessary,

but those two cases do not necessarily support the view

that a two-step approach, beginning with the question of

initiation, is required by Miranda. In Oregon v. Bradshaw,

supra, both the plurality and the dissent refer to Edwards

as if it made a new rule. Justice Rehnquist wrote of “the

test laid down in Edwards.” 103 S.Ct. at 2834. (Emphasis

added). Justice Marshall wrote “Edwards unambiguously

established such a (per se) rule.” 103 S.Ct. at 2840,

fn. 2 (Emphasis added).

The Petitioner also notes that Miranda itself was not

given retroactive application. Johnson v. New Jersey,

384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Common sense dictates that because Miranda is the prior

opinion most pertinent to Edwards, the same policy re-

garding retroactivity which applied to Miranda also

should apply to Edwards.

Even if the general rule of Edwards was foreshadowed

prior to the interrogation and the trial of the Respondent,

there is still the question whether the general rule pre-

cludes consideration of the effect of a curative event

such as occurred herein. That interpretation of Edwards

clearly was not foreshadowed by prior decisions. Miranda,

of course, involved no curative event. A rule which

focuses on initiation to the total disregard of subsequent

events is inconsistent with Michigan v. Mosley, 423 US.

96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In that case

subsequent police-initiated interrogation regarding a dif-

ferent offense was allowed even after Mosley invoked his

right to remain silent. Yet application of the per se rule

from Edwards apparently would have barred that second

interrogation in Mosley, for only if other circumstances

besides initiation are given weight does it really matter

whether the two interrogations were about the same

offense.

Under the first part of the United States v. Johnson

test, retroactive application of Edwards is not required—

at least not where intervening events may establish a

valid waiver. The next question is whether Stovall criteria

call for prospectivity or retroactivity. This is essentially

a policy question.

Regarding the “purpose” criterion, the analysis used in

Johnson v. New Jersey is instructive here. Johnson pointed

out that conduct which constituted violations of the newly

stated Miranda requirements could be presented as grounds

for reversal under a pre-Miranda “substantive test of

voluntariness,” rather than by retroactive application of

Miranda requirements per se. 384 U.S. at 730. Under

the same sort of reasoning, a defendant whose complaint

is that a subsequent interrogation was initiated by the

police may present that argument under the pre-Edwards

totality of circumstances standard for determining waiver.

In fact the Respondent herein did that in his appellate

brief. The same overall purpose is served by either test,

so refusal to apply Edwards retroactively does not deny

satisfaction of some important protective purpose.

Turning to the measure of reliance on old law, it is

obvious from the numerous cases in which Edwards has

been raised as a basis for reversal—including cases of

the utmost importance with the most careful investigative

attention, such as the instant capital murder case or the

Hinckley case—that police have relied on an interpreta-

tion of Miranda other than the focus on initiation stated

in Edwards. Moreover, trial and appellate courts have

tried in good faith to apply the totality of circumstances

test for waivers which was used prior to Edwards. Cer-

tainly the trial court in this cause did so, conducting a

very lengthy suppression hearing in order to probe all

the factors surrounding the confession. Thus policy factors

indicate that Edwards should not be applied retroactively

to this cause.

IT.

EVEN IF THE RESPONDENT’S MIRANDA RIGHTS

WERE VIOLATED BY REINTERROGATION INI-

TIATED BY THE POLICE, THE CONFESSION

WAS NOT TAINTED BECAUSE IT WAS TAKEN

ONLY AFTER AN INTERVENING EVENT ES-

TABLISHED WAIVER OF MIRANDA RIGHTS

Even if Edwards applies retroactively and compels the

conclusion that the reinterrogation initiated by the police

was in violation of the Respondent’s Miranda rights—

whether the right to remain silent, the right to counsel,

or both—the question remains: So what? Neither Miranda

nor Edwards addressed a set of facts where some event

occurred between the violation of Miranda rights and

the taking of the confession which established a valid

waiver of Miranda rights. Such an intervening event oc-

curred in this case. This Court’s Rule 17.1(c) warrants

review of this question.

As previously mentioned, counselor Dailey was not

summoned when reinterrogation was initiated by the

police. However, eventually he did go to the District

Attorney’s office. There he was refused access to his

client because the Respondent had not asked for him.

Meanwhile, during further conversations with the police,

the Respondent decided to go ahead and give a confession.

Apparently this decision was greatly influenced by a half-

hour conversation the Respondent had with Mrs. Fantich,

for whom the Respondent had a great deal of concern.

The Respondent orally recited what he knew about the

crime.

Before a written statement was made, the Respondent

and a detective went to a water fountain in the hall.

There, apparently by accident, the Respondent met at-

torney Dailey. Dailey told the Respondent to terminate

the interrogation. The Respondent answered that he “had

to” give a confession, though not because he was being

pressured by the police. “It’s my own personal reasons,”

the Respondent told Dailey, “You know, I have to tell

the truth.” Dailey told the Respondent that he would be

waiting nearby if the Respondent needed him. The Re-

spondent returned to the interview room, where, after

receiving Miranda warnings again, he gave a written

confession. Dailey talked to the Respondent later and

concluded that the Respondent had confessed voluntarily.

Miranda, 384 U.S. at 479, and its progeny—as well

as Miranda’s forerunner, Escobedo v. Illinois, 378 U.S.

478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)—chose an

“exclusionary rule” as a remedy for violations, barring

the use as State’s evidence of a confession taken in viola-

tion of the rules established in those cases. This Court

was primarily concerned with the ultimate admission of

evidence in violation of Miranda, for only if evidence is

admitted does “incrimination” occur. Interrogation in

violation of Miranda cannot warrant reversal unless it

produces evidence which is admitted against the defendant.

In the case at bar, none of the Respondent’s state-

ments made during the interrogation prior to the meeting

at the fountain were admitted in evidence against him.

The State only used the written confession which was

prepared and signed after the appellant met attorney

Dailey at the water fountain.

The meeting at the water fountain was an event which

purged the taint of the prior police conduct. This meet-

ing did not merely bolster the other evidence which indi-

cated that the appellant had voluntarily decided to give a

confession. The conversation at the fountain squarely

addressed the question of the Respondent’s assertion of

Miranda rights—Did he or did he not want to remain

silent? Did he or did he not want counsel present? The

evidence shows clear statements by the Respondent at

this time constituting waivers of the right to silence and

the right to the presence of counsel while making a

written confession. It was no agent of the State who

presented the question of Miranda rights to the Respond-

ent at the water fountain, but rather his own attorney.

In response to questions posed by his own attorney, the

Respondent gave answers which established all the neces-

sary requirements for a valid waiver of constitutional

rights under the well-known test of Johnson v. Zerbst,

304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461

(1938). As paraphrased in Edwards, 101 S.Ct. at 1883,

this test is “a knowing and intelligent relinquishment or

abandonment of a known right or privilege.” All the

elements of this test were satisfied by the meeting at the

fountain, as will be described more fully in Petitioner’s

brief if the petition is granted.

Given that the evidence of the meeting at the water

fountain shows a valid waiver under the Johnson v.

Zerbst standard, particularly in light of other testimony

regarding the preceding interrogation, which the trial

court found to be noncoercive, the majority opinion of

the Court of Appeals is incorrect unless Miranda and

Edwards are read as forbidding such a meeting to ever

take place on the thesis that the Respondent should not

have been in an investigative office at all. As discussed

in Section I supra, both the plurality and the dissenting

opinions in Bradshaw adopted the view that Edwards

created a two-step analysis, with initiation of reinterroga-

tion being the first step of the analysis, or as stated above,

a threshold question. However, the exact wording of the

rule stated in Edwards left open the question whether

improper initiation of reinterrogation by police could be

cured by contact between an accused and counsel prior

to the obtaining of a confession:

We further hold that an accused, . . . having

expressed his desire to deal with the police only

through counsel, is not subject to further inter-

rogation by the authorities until counsel has been

made available to him, unless the accused himself

initiates further communication, exchanges or con-

versations with the police. 101 S.Ct. at 1885.

This language literally indicates there are two ways for

subsequent interrogation to be valid: (1) counsel is made

available, or (2) the accused initiates further com-

munication. The facts in Edwards fit neither alternative.

Since the facts in Edwards (like the facts in Miranda

and Bradshaw) did not include a meeting with counsel

between initiation of reinterrogation and the taking of

evidence used at trial, there was no need for the Court to

hypothetically decide what the effect of such an inter-

vening meeting with counsel might be. The Petitioner

submits, however, that a meeting with counsel, where

counsel unequivocally urges the accused to remain silent,

clearly satisfies any Fifth Amendment right to counsel

under Miranda. It is equally clear to the Petitioner that

this Court would not have added the phrase “unless

counsel is made available” to its statement of the rule

in Edwards unless this Court intended that this was an

alternative avenue showing a waiver of the previously as-

serted right. The Petitioner submits that the facts herein

fit that alternative method of validating reinterrogation.

The harder question is whether the meeting with coun-

sel could cure the violation of the Miranda right which

the record shows was actually asserted—the right to re-

main silent and terminate interrogation. The answer

should depend on two factors: (1) Did counsel discuss

this right with the accused prior to the taking of the con-

fession used as evidence? (2) Does the evidence indi-

cate a knowing and voluntary waiver of the right to

remain silent? Where, as in the case at bar, the answer

to both questions is yes, the meeting with counsel should

be sufficient to cure the taint of improper procedure

prior to the meeting.

Il.

THIS COURT SHOULD ABANDON THE MECHANI-

CAL RULES OF MIRANDA AND EDWARDS

IN FAVOR OF AN INQUIRY INTO VOLUN-

TARINESS BASED ON THE TOTALITY

OF CIRCUMSTANCES

As a final alternative position, the Petitioner submits

that Edwards and Miranda were incorrectly decided. Both

adopted mechanical approaches which treat the pro-

cedures used by the police as more important than the

substantive question of the voluntariness of a confession.

It almost seems as if the Fifth Amendment itself has be-

come lost in the jurisprudence which purports to apply

it. The Fifth Amendment protects an accused against

being compelled to incriminate himself. A confession

which is given voluntarily is the antithesis of a compelled

or coerced confession. The proper inquiry in Fifth

Amendmeni cases is a simple decision—was the confes-

sion voluntary or involuntary?

The premise for the Miranda decision was that inter-

rogation has certain inherently coercive characteristics,

and it was the purpose of the mecharical approach taken

in Miranda to counteract these coercive influences. A

major flaw in the majority opinion in Miranda, as pointed

out by the dissenters in that case, was that the prophy-

lactic rules adopted by the majority were elevated above

the broader question of voluntariness. Prior to Miranda,

the Supreme Court did not regard any one factor or set

of factors as preclusive on the question of voluntariness.

After Miranda, almost no amount of evidence tending to

show that a confession was in fact voluntary could suf-

fice if the evidence showed a failure to warn an accused

—-~ | — — | .

of his rights or a failure to honor those rights. As the

Miranda dissenters pointed out, this Court’s pre-Miranda

treatment of confessions was more “judicial” in that it

treated one case at a time, and therefore was “flexible

in its ability to respond to the endless mutations of facts

presented.” 384 U.S. at 508.

Setting aside for a moment the Respondent’s assertion

of his right to terminate interrogation, the evidence in

the present cause established that the confession was

voluntary. First, the record reflects that multiple warn-

ings were given to the Respondent. He had been advised

by counsel, and before giving the only confession which

was admitted he was advised by counsel again. Neverthe-

less, the Respondent explained that he was motivated by

personal reasons, especially his feelings for the family

of Don Fantich, to go ahead and tell the truth. Asked if

he was subjected to any form of duress, the Respondent

denied that such duress occurred. Based on the totality

of the circumstances, it appears that the trial court cor-

rectly concluded that the Respondent’s confession was

voluntary.

The Petitioner does not suggest that assertion of the

right to remain silent or a demand for counsel is un-

important. Of course these rights are important, for

abuse of these rights carries the potential for coercion,

as the Miranda opinion explained. However, these factors

should be weighed together with all other pertinent evi-

dence, rather than being regarded as decisive by themselves.

The pre-Miranda approach did not foreclose proper con-

sideration of the initiation of reinterrogation in violation

of the protective devices deemed necessary by the Mir-

anda majority. Johnson v. New Jersey, supra—an opinion

by Chief Justice Warren, who authored the Miranda

majority opinion—acknowledged that the same “abusive

practices” which Miranda was aimed at curing could

be attacked under the pre-Miranda standards. 384 U.S.

at 730-731. Thus the Petitioner proposes that this Court

partially overrule Miranda. Although an exclusionary rule

may be retained as the remedy for an involuntary con-

fession, this Court should analyze the admissibility of con-

fessions in terms of the voluntariness of the confession

and the reliability of the confession. In Brown v. Louisi-

ana, 447 U.S. 32, 100 S.Ct. 2214, 2219-2220, 65 L.Ed.

2d 159 (1980), this Court referred to “the accuracy of

guilty verdicts” and “the reliability and integrity of the

fact finding process” in deciding a question of retroac-

tivity. The truthfulness or reliability of a confession

should be considered in deciding whether it may be admit-

ted or must be suppressed.

The mere fact that Miranda has become deeply en-

trenched in our jurisprudence, through the passage of

time and through its use as precedent, does not preclude

this Court from overruling or modifying the rules it

established. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.

1509, 12 L.Ed.2d 723 (1964) adopted a mechanical

“two-pronged test” for probable cause under the Fourth

Amendment. Even though Aguilar was of even older

vintage than Miranda, this Court recently abandoned the

mechanical approach of Aguilar in Illinois v. Gates, ——

US. _... 103 $.Ct. 2317, _.... L.Ba-24 (1983).

Even if this Court adheres to the majority opinion in

Miranda, Edwards v. Arizona should be overruled. In

the years between Miranda and Edwards, a substantial

jurisprudence developed on the issue of waiver of Mir-

anda rights. The cornerstone of this jurisprudence was

the standard for voluntariness of waivers stated in John-

son v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023,

82 L.Ed. 1461 (1938), cited in Chief Justice Burger’s

concurring opinion in Edwards, 451 U.S. at 488:

A waiver is ordinarily an intentional relinquishment

or abandonment of a known right or privilege. The

determination of whether there has been an intel-

ligent waiver . . . must depend, in each case, upon

the particular facts and circumstances surrounding

that case, including the background, experience, and

conduct of the accused.

The traditional Zerbst analysis allowed for due con-

sideration of the question of initiation, as well as other

factors. There was no need for the Edwards majority to

adopt a new per se rule based on the question of initia-

tion of reinterrogation. Indeed, Chief Justice Burger and

Justices Powell and Rehnquist concurred in Edwards,

finding that there was not a valid waiver without utilizing

what Oregon v. Bradshaw correctly characterized as a two-

step process. The Edwards majority opinion unnecessarily

adopted a bad rule based on aggravated facts in one

case. As Justice Powell observed, 101 S.Ct. at 1888,

“Few cases will be as clear as this one.” The Petitioner

agrees with Chief Justice Burger that “the extraordinary pro-

tections afforded a person in custody suspected of crimi-

nal conduct are not without a valid basis, but as with

all ‘good’ things they can be carried too far.” 101 S.Ct.

at 1886. The Court should abandon the per se rule of

Edwards.

CONCLUSION

For the aforesaid reasons, the Court should grant the

petition for writ of certiorari.

Respectfully submitted,

JOHN B. HOLMES, Jr.

District Attorney

Harris County, Texas

WINSTON E. COCHRAN, JR.

Don STRICKLIN

Dick Bax

Assistant District Attorneys

CALVIN A. HARTMANN

Assistant District Attorney

Chief of the Appellate Section

Counsel of Record

201 Fannin, Suite 200

Houston, Texas 77002

Tel.: 713/221-5826

Attorneys for Petitioner

APPENDIX

NO. 68,937

CLAUDE LEE WILKERSON, Appellant

THE STATE OF TEXAS, Appellee

Appeal from HARRIS County

OPINION

This is an appeal from a conviction for capital murder

in which the punishment was assessed at death.

Because of our disposition of appellant’s seventh ground

of error, a detailed recitation of the facts constituting

the offense is obviated. That ground of error contends

the trial court erred in admitting appellant’s inculpatory

statement “which was involuntarily obtained in violation

of the Fifth, Sixth and Fourteenth Amendments to the

Constitution of the United States and Article I, Sections

10 and 19 of the Constitution of the State of Texas.”

Prior to trial, appellant filed a motion to suppress his

written statement on grounds conforming to the above

allegation. The trial court conducted a hearing on the

motion, at the conclusion of which he dictated his find-

ings of fact, conclusions of law’ and his decision to over-

1. Appellant does not contest the sufficiency of the evidence to

support the jury’s verdict of “guilty.”

2. Paraphrased, the salient findings of fact are: (1) appellant was

given repeated warnings by law enforcement officers, a magistrate

and an assistant district attorney prior to his statement; (2) no force,

threats, promises or other undue influence was applied; (3) appellant

rule the motion to suppress. Appellant again raised the

issue during trial on the merits and requested its sub-

mission to the jury, which request was denied.* The issue

was also urged on motion for new trial.

The material facts are not in dispute. Appellant was

arrested without a warrant on Tuesday, January 24, 1978,

apparently because he had been observed driving the car

of one of three persons who had been reported missing

the preceding day and who appeared to have been victims

of a robbery. At approximately 3:00 p.m., the Honorable

Fred Dailey received a call from Pat Fantich, the wife

of one of the missing persons, who advised him appellant

wanted to talk to him about legal representation. Dailey

proceeded to the Robbery Division of the Police Ad-

ministration Building where he spoke with and was re-

tained by appellant.

At approximately 8:00 p.m., appellant was escorted

by Detective Joe Williams to the courtroom of Municipal

Judge Rosemary Saucillo, where he was warned of his

rights; appellant acknowledged his understanding. He

was given a copy of the written warning which also had

“had access or actually conversed with or was counseled by” the

retained attorney of his choice “at all times;” and (4) the statement

“was freely and voluntarily made and therefore admissible for con-

sideration by the finders of fact.”

3. The trial court’s ruling on his objection and requested addition

to the charge in this respect, forms the basis of appellant’s sixth

ground of error.

4. Asa part of the warning, appellant was told:

“You have been accused of the offense of robbery and kidnap-

ping.” [All emphasis is supplied throughout by the writer of this

opinion unless otherwise indicated.]

Detective Williams conceded there was insufficient evidence to

charge appellant with these offenses, only enough to “accuse” him.

a line struck throrgh the vortion dealing with bail. Ap-

pellant’s attorney was waiting for him on his return to

Robbery Division.

The next morning, Wednesday, January 25, at 8:00

a.m., attorney Dailey met appellant at the city jail, then

later that morning, thev met in the grand jury anteroom

of the Harris County Court Annex, along with Assistant

District Attorney Mike Hinton and a Detective Beale.

Appellant, according to Hinton, was afraid and appre-

hensive; he did not want to testify and “if he knew any-

thing, he did not care to divulge it.”* Appellant ultimately

decided to testify. Hinton warned him of his rights and

on two occasions appellant interrupted his testimony to

consult with Dailey outside the grand jury room before

answering questions. After testifying for two hours before

the grand jury, appellant was “released.”

The next day, Thursday, January 26, Hinton left a

telephone message for appellant to call him. When appel-

lant returned the call in the early afternoon, Hinton ap-

parently told him he wanted to meet so they could talk.

According to Hinton, appellant “indicated he wanted to

talk further [but] he said he did not have any transporta-

tion.” Appellant also complained to Hinton of severe pain

he was having due to an arm injury which had become

infected. Hinton arranged to have appellant admitted to

the private Rosewood Medical Center, telling the owner-

physician he “wanted to take precautions to protect him.”

5. Hinton testified that he talked with Dailey and appellant for a

couple of hours trying to persuade appellant to give the grand jury

the benefit of what he knew about the disappearances. He told ap-

pellant he was not the focus of the investigation and not to “be in

fear of prosecution” for any past drug dealings or the like, though

“there is no immunity from the offense of perjury.”

Hinton’s recollection was that appellant was admitted

under an assumed name.° Appellant called his attorney,

Mr. Dailey, from the hospital and the two spoke by tele-

phone about five more times that day. In the interim,

Hinton arranged to meet Dailey, Assistant District At-

torney Don Stricklin and a Lieutenant Fulbright at the

hospital late in the evening.

According to Dailey, he arrived at the hospital at ap-

proximately 9:00 p.m. and had consulted with appellant

for approximately 30 minutes when Stricklin, Detective

Jerry Carpenter (who was assigned to the D.A.’s Special

Crimes Division) and a Robbery Division Lieutenant—

apparently Fulbright—entered appellant’s room. Stricklin

started a conversation with appellant “about cars” and

“asked [him] how he moved around.” According to

Dailey’s testimony elicited on direct examination by Prose-

cutor Stricklin,

“And he gave you an answer that you weren’t satis-

fied with. Because you felt it was kind of vague.

And then, you got rather specific about whether he

used Dan Fantich’s Mercedes. And he denied that,

rather vehemently. And you and he began to have

rapid and heated discussions about—around the car.

And he did not want to answer you at all. And

finally you got up and said ‘I will wait until Mike

[Hinton] gets here.’ And I said, “‘That’s probably a

good idea.’ ”

Everyone but Dailey left appellant’s room.

6. Quizzed on cross examination about why appellant was not

admitted to the County Hospital, Ben Taub, Hinton insisted he did

not know what kind of situation he was dealing with because appel-

lant continued to indicate that one reason for not talking was his

fear for his own safety. Hinton felt appellant would be more secure

in the private hospital. However, the record reflects appellant was

admitted under his own name.

Mike Hinton, who all witnesses agreed had developed

a degree of rapport with appellant, arrived at the hospital

at approximately 10:00 p.m. Hinton and Carpenter en-

tered appellant’s room, and in the presence of Dailey,

Hinton began pleasant conversation. But eventually, ac-

cording to Dailey,’ “Hinton broke the news to Mr. Wilker-

son, ... that he felt he knew and could prove that Wilker-

son had lied four times before the Grand Jury [the day

before] and that he . . . could file on them. But, that he,

Hinton, would give Wilkerson a chance to make up for it.

That he would not file the charges if Wilkerson would

come clean and tell him what he knew about Fantich’s

disappearance.” This conversation lasted approximately

30 minutes and at its conclusion, Dailey asked if he could

speak with his client alone for a moment.

According to Hinton, appellant was “genuinely trying

to make a decision of whether to talk with the author-

ities.” When Hinton reentered the room, another lengthy

conversation occurred after which Dailey asked everyone

to leave again; he consulted privately with appellant. Ac-

cording to Dailey, he stopped the “questioning or inter-

rogation” two or three times “before they pushed any fur-

ther.” The third time Hinton and Detective Carpenter

entered, the conversation lasted for about two hours, and,

according to Dailey,

“It seemed to lead nowhere and contained no real

substance. But, at some point Claude Wilkerson

finally got around to telling Mike Hinton that he

wished to say no more and cooperate no further with

7. Though the testimony of Dailey, Hinton and Carpenter as to

the sequence of the conversations between Hinton and appellant that

night, conflicts in minor detail, the substance of those conversations

is undisputed.

the District Attorney’s Office or the Police Depart-

ment in the investigation concerning the disappear-

ance of the three people.”*

The interview was at that point terminated; Hinton told

appellant “I hope you know what you are doing,” and

advised him he was under arrest for perjury’ and would

be left in the custody of the officers. The prosecutors

left."° Detective Carpenter pulled his chair up to appel-

lant’s bed and began some “small talk.”

Dailey testified that at this point,

“I told Jerry Carpenter that I didn’t want any more

interrogation. And I didn’t want any more conversa-

tions. That Wilkerson had told me that he didn’t

want to say anything. * * * So, the whole time I

felt like [appellant] and I [had been] in control of

the situation. And we could stop it at any time and

we did, two times. [When I left the hospital] I felt

like [the District Attorney’s Office and Houston

Police Department] understood [there was to be no