Joint Appendix — Shea v. Louisiana

Se

;o , “treme Court, U.S

: FILE 1)

8 27 Bes

No. 82-5920

ALLAANDIR L. STEVAS

Iu the Suprenw Court of the United States

OCTOBER TERM, 1983

KEVIN MICHAEL SHEA,

Petitioner,

v.

STATE OF LOUISIANA

ON WRIT OF CERTIORARI TO THE

LOUISIANA SUPREME COURT

JOINT APPENDIX

PAUL J. CARMOUCHE

District Attorney

Caddo Parish Suite 101 Energy Square

501 Caddo Parish Courthouse 212 Texas Street

Shreveport, Louisiana 71101 Shreveport, Louisiana 71101

(318) 226-6826 (318) 425-0010

Counsel for Respondent Counsel for Petitioner

FRANCES BAKER JACK

HUNTER & JACK

: —

PETITION FOR CERTIORARI FILED DECEMBER 17, 1982.

CERTIORARI GRANTED APRIL 30, 1984.

INDEX

Relevant Docket Entries

Motion to Suppress Confession Filed by Defendant

on August 15, 1979

Notice of Intent to Use Statements Filed by State,

April 28, 1980

Motion to Suppress Inculpatory Statement of Defendant

Filed December 19, 1980

Transcript of Proceedings (Guilty Plea), December 19,

1980, Volume 1 of 1 Docket No. 684, pages 159-165

Original Opinion of the Louisiana Supreme Court, dated

January 25, 1982

Concurring Opinion of Calogero, J. .....

Louisiana Supreme Court Opinion on Rehearing (No.

81-KA-0377-78), dated October 18, 1984

Dissenting Opinion of Calogero, J., on Rehearing

Order of the Supreme Court of the United States Grant-

ing Leave to Proceed in forma pauperis and Grant-

ing Petition for Writ of Certiorari

Page

39

RELEVANT DOCKET ENTRIES

August 15, 1979

April 28, 1980

April 29, 1980

—Motion To Suppress Confession filed by

Defendant

—Notice Of Intent To Use Statements filed

by State

—Trial Court Ruled Statements Admissible

(Docket No. 111,684-A)

December 19, 1980—Motion to Suppress Inculpatory State-

January 25, 1982

October 18, 1982

October 19, 1982

April 30, 1984

ments filed by Defendant and Overruled ;

Defendant’s Withdrawal of Previous Plea

and Entry of Guilty Plea with Reserva-

tion of Right to Appeal Ruling on Motion

To Suppress (Docket No. 111,684)

—Original Opinion of the Louisiana Su-

preme Court

—Louisiana Supreme Court Opinion on Re-

hearing (No. 81-KA-0377-78)

—Dissenting Opinion of Louisiana Supreme

Court Justice Calogero

—Order of the Supreme Court of the United

States Granting Leave to Proceed in

Forma Pauperis and Granting Petition

For Writ of Certiorari

(1)

2

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

Number 111,684

STATE OF LOUISIANA

versus

KEVIN MICHAEL SHEA

MOTION TO SUPPRESS CONFESSION—

Filed Aug. 15, 1979

NOW INTO COURT, through undersigned counsel,

comes KEVIN MICHAEL SHEA, defendant in the

above numbered and styled prosecution and files this Mo-

tion to Suppress all written or recorded confessicns or

other inculpatory statements obtained from him for the

following reasons, to-wit:

1.

Said written, recorded, or inculpatory statements ob-

tained from the defendant were a result of an illegal

stop, search and arrest in violation of Article 1, Section

5 of the Louisiana Constitution of 1974 and the Fourth

Amendment of the United States Constitution and there-

fore all said statements or confessions are tainted.

WHEREFORE, the defendant prays that this motion

be filed and allowed and that in due course, the Court

order the defendant’s written, recorded statements, or

confessions or other inculpatory statements be held in-

admissible in this case.

INDIGENT DEFENDER OFFICE

204 Ricou Brewster Bldg.

Shreveport, Louisiana 71101

By: /s/ Howard M. Fish

HOWARD M. F'sH

Assistant Indigent Defender

Certificate of Service (omitted in printing)

3

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

Number 111684-A

STATE OF LOUISIANA

versus

KrVIN MICHAEL SHEA

NOTICE OF INTENT TO USE STATEMENTS—

Filed Apr. 28, 1980

NOW INTO COURT, through the undersigned Assist-

ant District Attorney, comes the State of Louisiana,

which respectfully shows:

1.

During he investigation of the crime charged in the

above entitled and numbered cause, certain oral and/or

written statements and or admissions were made by the

following:

On June 2, 1979 defendani made res gestae statements

te Tonny Tuminello at 730 Crockett, Caddo Parish, Lou-

isiana during the course of the armed robbery of Mr.

Tuminello.

On June 3, 1979 defendant made an oral statement

at the Shreveport City Jail to Detectives Snell, Smith

and Shields. The defendant admitted robbing Mr. Tumi-

nello and that he had the weapon during the robbery.

He stated that the gun belonged to Ratliff so he gave him

back the gun because he couldn’t hold both gun and

money.

4

2.

Upon trial of said cause, the State of Louisiana may

introduce said statements and/or admissions, and offer

same as evidence against said defendant.

/s/ Sonia D. Peters

SonIA D. PETERS

Assistant District Attorney

501 Caddo Parish Courthouse

Shreveport, Louisiana 71101

Certificate of Service (omitted in printing)

5

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

Section 2

Number 111,684

STATE OF LOUISIANA

versus

KEVIN MICHAEL SHEA

MOTION TO SUPPRESS INCULPATORY

STATEMENTS—Filed Dec. 19, 1980

NOW INTO COURT, through undersigned counsel,

comes Kevin Michael Shea, defendant in the above num-

bered and titled prosecution and files this Motion to

Suppress for use as evidence all confessions and ‘or other

inculpatory statements obtained from defendant for the

following reasons, to-wit:

1.

Defendant is charged with the offense of armed rob-

bery as set forth in R.S. 14:64.

2.

After arrest and while in custody of the City of

Shreveport Police Department, defendant made _ state-

ments to Shreveport police authorities which are inculpa-

tory in nature.

3.

Defendant believes the aforementioned inculpatory

statements were made upon an arrest without probable

cause. [See Brown v. Illinois, 422 U.S. 590, 45 L.Ed.

416, 95 S.Ct. 2254 (1975) ]

4.

Further, the aforementicned inculpatory statements

were made under either the influence of fear, duress, in-

6

timidation, menaces, threats, inducements and/or prom-

ises, and/or without defendant having been properly ad-

vised of his rights to remain silent and to have counsel

appointed to represent him, and/or without a sufficient

understanding of his rights in order to make an intelli-

gent waiver of those rights. [See U.S. Const., Amends.

5, 6 and 14; La. Const., 1974, Sections 13 and 16; and

LSA-R.S. 15 :452]

WHEREFORE, defendant prays that this Motion be

filed and in due course, the Court rule defendant’s afore-

mentioned inculpatory statements to be inadmissible as

evidence in this case.

INDIGENT DEFENDER OFFICE

311 Slattery Building

Shreveport, Louisiana 71101

/s/ Howard M. Fish

HOWARD M. FIsH

Assistant Indigent Defender

Certificate of Service (omitted in printing)

7

[158] IN THE

FIRST JUDICIAL DISTRICT COURT

IN AND FOR THE PARISH OF CADDO

STATE OF LOUISIANA

Case No. 111,684

STATE OF LOUISIANA

versus

KEVIN MICHAEL SHEA

APPEARANCES:

Miss SoniA D. PETERS

Assistant District Attorney

Mr. HOWARD FISH

Counsel for Defendant

TRANSCRIPT OF PROCEEDINGS—December 19, 1980

PROCEEDINGS HAD in the above matter before His

Honor, FRED C. SEXTON, JR., Judge of the First Ju-

dicial District Court, in and for the Parish of Caddo,

State of Louisiana, on December 19, 1980.

[159] THECOURT: Miss Peters, Mr. Fish.

MISS PETERS: Yes, Your Honor. We will call the

matter of Kevin Michael Shea. Your Honor, Mr. Shea

is before the Court with his attorney, Mr. Fish. He has

previously entered a plea of not guilty to armed robbery

involving Delores Dick. It is my understanding he would

plead guilty at this time with some understandings, I

believe Mr. Fish can relate those.

MR. FISH: Yes, Your Honor. At this time, Mr.

Shea would like to withdraw his previously entered plea

of not guilty and enter a plea of guilty to the remaining

armed robbery count, with the understanding that pur-

suant to that guilty plea he would—he would be able

to under the authority of State of Louisiana versus

8

Crosby, to appeal the issue of the search and seizure on

the motion to suppress evidence, which has already been

litigated and tried in September of 1979, as well, Your

Honor, he has filed a motion to suppress statement that

the State would intend to use at trial against him in

this count. I believe the State has agreed to stipulate that

the Crosby appeal would also apply as to the motion to

suppress evidence, which we are willing to stipulate the

testimony would be the same at trial at the motion to

suppress—

THE COURT: That is the motion to suppress the

physical evidence or the motion on the statement?

[160] MISS PETERS: No, Your Honor, we've al-

ready had the motion to suppress physical ev.ucace, it

was overruled.

THE COURT: And that does not apply to this case

or it does apply to this case?

MR. FISH: It does apply to this case.

THE COURT: It does apply to this case? All right.

But it has been held and overruled, correct?

MR. FISH: Yes, Your Honor.

THE COURT: And in addition, there is a statement

at issue in this case, the freeness and voluntariness of

which has not been decided, but the evidence for which is

already in the record, with respect to another case?

MISS PETERS: That’s correct, Your Honor.

MR. FISH: That’s correct, Your Honor.

THE COURT: That’s correct. And we have dis-

cussed that evidence, though I have not reviewed that

evidence and you understand that I am going to take the

same action as the Judge did on the previous case and

that is to overrule the motion to suppress with respect

to the freeness and voluntariness in this case?

MR. FISH: That’s [161] correct, Your Honor.

THE COURT: All right. And your client wants to

reserve his rights to appeal with respect to both the free

and voluntariness and the search and seizure of tangible

evidence with respect to this case?

9

MR. FISH: Yes, Your Honor, and the motion to sup-

press the search and seizure, as you also referred to the

statements as well.

THE COURT: Right.

MR. FISH: That is to the initial probable cause for

arrest.

THE COURT: Okay. There are additional under-

standings. Let me ask Mr. Shea if he follows what we

said and if that’s his understanding?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Now, I told you that I

was going to give Mr. Shea five years on this charge,

consecutive to his other sentence?

MR. FISH: That’s correct, Your Honor.

THE COURT: And I also believe the State has as-

serted they will not file a multiple bill under these cir-

cumstances?

MISS PETERS: That’s correct.

THE COURT: Is that [162] correct?

MR. FISH: Yes, sir.

THE COURT: Do you follow that Mr. Shea?

THE DEFENDANT: Yes, sir.

THE COURT: And that’s your understanding?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that in entering

the plea that you waive your right to a trial by jury

on this charge?

THE DEFENDANT: Yes, sir.

THE COURT: And you also waive your right to face

the persons who accuse you on this charge?

THE DEFENDANT: Yes, sir.

THE COURT: And you further give up your right

against compulsory self-incrimination on the charge?

THE DEFENDANT: Yes, sir.

THE COURT: The facts, Miss Peters?

MISS PETERS: Your Honor, on June 29th of 1979,

Kevin Michael Shea, along with a co-defendant robbed

Delores Dick. This was at the Quick Mart Grocery Store,

10

North Market, in Caddo Parish. Shea was armed at

that time, with a pistol and received approximately

$180.00 in cash was taken from the cash register, which

was in the control of Ms. Dick at that time, as the em-

ployee of the Quick Mart. [163] After their arrest, as to

another armed robbery, an unrelated armed robbery, Mr.

Shea gave a statement to police officers admitting his in-

volvement in the Quick Mart armed robbery. The victim,

Ms. Dick, did ID Mr. Shea from a live line-up and a

latent print was lifted in the Quick Mart Store and it

was matched to Kevin Shea.

THE COURT: Are those facts essentially correct,

Mr. Shea?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. What is your age, sir?

THE DEFENDANT: 20.

THE COURT: All right, sir. So, you were 19 a

year ago, obviously?

THE DEFENDANT: Yes, sir.

THE COURT: Were you 19 or 18 at the time of

these alleged offenses?

THE DEFENDANT: 18 at the time.

THE COURT: Okay. Now, one other thing I have

to be sure that you understand, that the five years I

told you I will impose is without benefit of parole, pro-

bation, or suspension of sentence?

THE DEFENDANT: Yes, sir.

THE COURT: And it is consecutive to your other

sentence?

THE DEFENDANT: Yes, sir.

THE COURT: You [164] understand that?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. I have discussed the

case with your attorney and the District Attorney and

considering the fact that you have seventeen and a half

years to do on the other armed robbery, I think that the

minimum sentence of five years without benefit of parole,

probation or suspension of sentence at hard labor is ap-

propriate here and that is the sentence of the Court.

11

MR. FISH: Your Honor, at this time, pursuant to

the Crosby plea, I would like to at this time, move for

an appeal to the Louisiana Supreme Court.

THE COURT: All right, sir. The Clerk will affix

appropriate dates. Are you able to do so now?

THE CLERK: Yes, sir. Okay. Your return date is

going to be February 16th. Your designation of record

would be December the 23rd. Okay—

THE COURT: That’s supposed to be the 24th, isn’t

it Mr. Clerk? He gets five days on that. I would hope

he would get it in by the 23rd, it should be pretty

simple.

MR. FISH: I don’t have any difficulty with that,

Your Honor.

THE COURT: Well, that would stil! make it the

24th. You’re entitled to five days. I know Christmas

Eve is a tough time to try to [165] be getting something

done around here. Okay. Your assignment of errors

would be February 2nd. All right, sir. So ordered.

MR. FISH: Thank you, Your Honor.

Clerk’s Certificate (omitted in printing)

12

SUPREME COURT OF LOUISIANA

Nos. 81-KA-0377

and 81-KA-0378

STATE OF LOUISIANA

versus

KEVIN MICHAEL SHEA

APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT

PARISH OF CADDO,

HONORABLE EUGENE W. BRYSON, JR., JUDGE

OPINION—January 25, 1982

SWIFT, Justice Ad Hoc *

Defendant, Kevin M. Shea, has appealed two armed

robbery convictions in Caddo Parish, one of Tony Tumi-

nello at his Phillips 66 service station on July 2, 1979,

and the other of Delores C. Dick at the Quick Mart

Grocery Store on June 29, 1979. The first appeal in-

volves Shea’s conviction by a unanimous jury after a

trial. The other is a “Crosby type” appeal in connection

with a guilty plea bargain.’ The defendant was sen-

tenced in the first instance to 17 years and in the other

case to 5 years, both at hard labor. The sentences were

imposed to run consecutively, without benefit of parole,

probation or suspension of sentence.

* Judges E. L. Guidry, Jr. and G. William Swift, Jr. of the

Court of Appeal, Third Circuit, and Judge Robert J. Klees of the

Court of Appeal, Fourth Circuit, participated in this decision as

Associate Justices ad hoc, joined by Associate Justices Pascal F.

Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T.

Lemmon.

1 State v. Crosby, 338 So. 2d 584 (La. 1976).

13

FACTS

Mr. Tuminello was robbed of cash and checks by two

men after one had fired a pistol shot into the floor. When

they left he immediately called the police and gave them

descriptions of the robbers.

Three Shreveport police officers were having coffee at

a restaurant approximately three blocks from Tuminello’s

filling station at the time and they were notified by radio

of the armed robbery shortly thereafter. The report

identified the robbers as two white males, one a blonde

anc the other with long dark hair, both wearing blue

jeans, one with a plaid shirt and the other with a blue

shirt. Leaving the restaurant a minute or so later, the

officers saw two individuals who met this description

walking on the sidewalk at a brisk pace. When they

failed to stop on being ordered to do so and after one

man made a motion with his hand as if to remove soine-

thing from his waist or pocket, the police drew their

weapons and apprehended the two suspects. One of these

was the defendant, who had in his shirt pockets a wad of

money and also some checks payable to Tuminello’s busi-

ness. The other, Justice M. Ratliff, had in his possession

a revolver with five live shells and one spent cartridge.

The two persons were taken to the police station and sub-

sequently identified by Mr. Tuminello and by Ms. Dick in

a six-man line-up.

Both suspects were advised of their Miranda rights

at the scene when arrested and also at the police station.

At the station Shea told the police he did not want to

make any statements until he saw a lawyer and the

interview was terminated at that point.

The next afternoon, July 3, 1979, just prior to Shea’s

transfer to the Caddo Parish prison, the detectives again

approached Shea and asked him if he wanted to talk

about the case. No inquiry was made as to whether he

had hired a lawyer or if he was indigent. This accused

was again informed of the Miranda rights and again he

14

acknowledged this in writing. Thereafter, although he

refused a recorded interview, Shea gave a brief oral

statement to the detectives admitting that he and his

companion had robbed the service station. He said chat

he pulled the gun and demanded money from Mr. Tumi-

nello. The latter gave him money and checks. As he was

unable to carry these and the gun at the same time, he

gave the gun to his accomplice and they fled. Shea also

admitted that he was involved in the other robbery.

This defendant testified at the trial that he had re-

peated his desire for a lawyer before making the inculpa-

tory statement. However when the detectives told him

they already knew everything and that it would be better

for him to cooperate, he told them what happened. The

police denied that Shea asked for counsel or was promised

anything on this occasion.

Ratliff subsequently pleaded guilty to both offenses

and was sentenced.

ASSIGNMENT OF ERROR NO. 1 (BOTH CASES)

The defendant first contends that the district court

erred in denying his motion to suppress the inculpatory

statement given on July 3, because it was obtained in

violation of his rights under the 5th and 14th amend-

ments of the United States Constitution, as set forth by

the Supreme Court in Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

In State v. Thucos, 390 So. 2d 1281 (La. 1980) this

court pointed out the necessity for “scrupulous honoring”

of a defendant’s assertion of his right to counsel, saying:

“Before a confession or inculpatory statement can

be admitted in evidence, it must be established that

the accused who makes the statement during cus-

todial interrogation was first advised of his Miranda

rights and that the statement was made freely and

voluntarily and not under the influence of fear, du-

ress, intimidation, menaces, threats, inducements or

.

15

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

S.Ct. 1602, 16 L.Ed. 2d 694 (1966); R.S. 15:451.

The Supreme Court in Miranda also stated: ‘Once

warnings have been given, the subsequent procedure

is clear. ... If the individual states that he wants

an attorney, the interrogation must cease until an

attorney is present.’ Although it has been recognized

that an accused may later change his mind and

waive the same rights which he earlier asserted,

[State v. Manning, 380 So. 2d 46 (La. 1980), and

State v. Dominick, 354 So.2d 1316 (La. 1978) ]

once a defendant has invoked his constitutional right

to remain silent or his right to counsel, the validity

of any subsequent waiver depends upon the ‘scrupu-

lous honoring’ of that right by the police, Michigan

v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d

313 (1975); State v. Manning, supra. The state’s

burden here is a heavy one. State v. Mouton, 366

So. 2d 1336 (La. 1978); State v. Peevy, 321 So. 2d

324 (La. 1975). The courts indulge in every rea-

sonable presumption against the waiver of funda-

mental constitutional rights. Brewer v. Williams,

430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) ;

Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.

680 (1942) ; State v. Manning, supra.”

More recently, in Edwards v. Arizona,

101 S.Ct. 1880, —— L.Ed. 2d

States Supreme Court said:

“Second, although we have held that after initially

being advised of his Miranda rights, the accused

may himself validly waive his rights and respond

to interrogation, see North Carolina v. Butler, su-

pra, 441 U.S., at 372-376, 99 S.Ct., at 1757-1759,

the Court has strongly indicated that additional safe-

guards are necessary when the accused asks for

counsel; and we now hold that when an accused has

invoked his right to have counsel present during cus-

Us. ——,

(1981), the United

16

todial interrogation, a valid waiver of that right

cannot be established by showing only that he re-

sponded to further police-initiated custodial inter-

rogation even if he has been advised of his rights.

We further hold that an accused, such as Edwards,

having expressed his desire to deal with the police

only through counsel, is not subject to further in-

terrogation by the authorities until counsel has been

made available to him, unless the accused himself

initiates further communication, exchenges or con-

versations with the police.” (Emphasis added.)

And after mentioning later cases dealing with the “un-

disputed right” under Mirar.da to remain silent and to

be free of interrogation before consulting with a lawyer

the court stated:

“We reconfirm these views and to lend them sub

stance, emphasize that it is inconsistent with Mi-

randa and its progeny for the authorities, at their

instance, to reinterrogate an accused in custody if

he has clearly asserted his right to counsel.” (Em-

phasis added.)

In a concurring opinion Justices Powell and Rehnquist

indicated an uncertainty as to whether this decision really

prohibited the police from initiating an inquiry as to

whether a suspect has changed his mind about talking

to them without an attorney. However, it seems quite

clear to us that the majority of that court has so ruled.

In the present case it is undisputed that the police did

initiate such an inquiry on July 3, after having been

clearly informed by the defendant on the previous eve-

ning that he would not make any statements without

counsel. Consequently, there was a violation of the addi-

tional standard governing police interrogation of a sus-

pect imposed by Edwards v. Arizona, supra.

The state alternatively contends that if the court erred

in this respect the error was harmless because there is

overwhelming evidence of the defendant’s guilt in the

record of the Tuminello robbery case.

17

In State v. Gibson, 391 So. 2d 421 (La. 1980), this

court adopted the harmless error rule applied in Chap-

man v. California, 386 U.S. 13, 87 S.Ct. 824, 17 L.Ed. 2d

705 (1967), saying:

“It appears that the Chapman test, i.e., ‘whether

there is a reasonable possibility that the evidence

complained of might have contributed to the convic-

tion’ and that ‘the court must be able to declare a

belief that [the error] was harmless beyond a rea-

sonable doubt,’ will assist this Court to fulfill both

of the requirements of state law.

From the record it seems quite possible that the jury

could have convicted this defendant of the Tuminello

robbery without consideration of the inculpatory state-

ment in question. However, for reasons hereinafter set

forth it is unnecessary for us to decide whether or not

this error was harmless beyond a reasonable douht.

We note that Edwards was rendered on May 18, 1981.

Prior thereto, of course, law enforcement authorities

were unaware of any prohibition against an officer ask-

ing a suspect, who had been warned of his Miranda

rights and refused to give any information without coun-

sel, whether he had changed his mind and was then

willing to be interrogated without a lawyer. In this

case Shea’s inculpatory statement was obtained, his mo-

tion to suppress was tried and denied, he was tried and

found guilty by a jury in one case, pled guilty in the

other and he was sentenced for both offenses, all before

the decision in Edwards was announced. Therefore, we

are presented with the question of whether or not the

rule of that case is to be applied retroactively.

The United States Supreme Court does not mention

this subject in its decision. However, it has directed

that Escobedo? and Miranda, both of which introduced

new standards governing police interrogation as safe-

* Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12

L.Ed 977 (1964).

18

guards against the use of unreliable inculpatory state-

ments, are not to be applied retroactively. Johnson v.

State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16

L.Ed.2d 882 (1966), rehearing denied, 385 U.S. 890,

87 S.Ct. 12, 17 L.Ed.2d 121. In Johnson the court de-

cided that such newly instituted standards did not “en-

hance the reliability of the fact-finding process’ to the

extent that inculpatory statements previously obtained

without their application should be excluded from evi-

dence when the statements were found reliable under the

prior tests of voluntariness. We see no sound reason

why this new standard for police interrogation imposed

by Edwards in regard to obtaining a suspect’s statement

without counsel should or will be treated differently.

This court has taken the same position with respect

to retroactive application of the Dino* rule, excluding

statements given by minors without consultation with an

attorney, parent or adult. State v. Collum, 365 So.2d

1272 (La. 1978), U.S. cert. den., 444 U.S. 882, 100 S.Ct.

171, 62 L.Ed.2d 111 (1979); State v. Kent, 391 So.2d

429 (La. 1981).

In the present case the trial judge determined that de-

fendant Shea’s oral statement was given freely and

voluntarily after he was fully advised of his Miranda

rights. We agree with the court’s conclusion that it was

admissible under the standards existing when it was

taken and also when the matter was tried. We also find

that the defendant voluntarily and intelligently waived

the right to counsel and his privilege against self-

incrimination before making the inculpatory statement.

As this occurred before the decision in Edwards was

rendered and we are convinced the United States Su-

preme Court will pronounce that decision is not retro-

active, we so hold in this case.

This assignment of error lacks merit.

3 State in the Interest of Dino, 359 So.2d 586 (La. 1978), U.S.

cert. den., Louisiana v. Dino, 439 U.S. 1047, 99 S.Ct. 722, 58

L.Ed.2d 706 (1978).

19

ASSIGNMENT OF ERROR NO. 2 (BOTH CASES)

The defendant contends the trial court erred in deny-

ing his motions to suppress evidence and the confession

obtained as a result of the arrest by the police shortly

after the Tuminello robbery. He argues that the officers

did not have reasonable grounds to make this investiga-

tory stop and search of the defendants under Terry v.

Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),

and Article 215.1 of the Louisiana Code of Criminal

Procedure. .

Article 215.1 authorizes a police officer to stop a per-

son in a public place for questioning when he reasonably

suspects that person is committing, has committed or is

about to commit a criminal offense. Reasonable cause

for an investigatory stop or detention is something less

than probable cause, which much exist for a police officer

to arrest without a warrant for an offense committed

outside his presence. La. C.Cr.P. Art. 213(3). However,

the detaining officer making such stop must have artic-

ulable knowlege of particuiar facts sufficient reasonably

to suspect the detained person of criminal activity. State

v. Edsall, 385 So. 2d 207 (La. 19890).

Under the circumstances of this case we are convinced

the police officers not only had reasonable cause for an

investigatory stop but also had probable cause to arrest

the defendant and his accomplice without a warrant.

These two persons were in the immediate vicinity of the

robbery within minutes after it occurred. They fitted

the descriptions of the robbers broadcast on the police

radio. They were heading away from the scene of the

crime at a brisk pace. Instead of initially stopping as

ordered, both suspects accelerated their paces and one of

them reached toward his pocket as if to produce a

weapon. Under somewhat similar facts this court upheld

a stop, search and arrest in State v. Jackson, 337 So. 2d

508 (La. 1976). Also see State v. Kenner, 384 So. 2d

413 (La. 1980).

20

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3 (BOTH CASES)

This assignment is directed at the denial of defend-

ant’s motion to suppress out-of-court identification. Since

it was neither argued nor briefed by the defendant, it

should be considered as abandoned. State v. Kenner,

supra. Nevertheless, we have reviewed the transcript

of the pre-trial hearing of this motion and conclude that

the physical line-up was properly conducted. It was not

suggestive, conducive to a mistaken identification or

tainted in any manner as would violate due process of

law.

This assignment has no merit.

ASSIGNMENT OF ERROR NO. 4 (81-KA-0377)

In this assignment the defense contends that the trial

court erred in denying its challenge for cause of prospec-

tive juror Nathaniel Willis on the grounds that the voir

dire examination disclosed he was not impartial and

would not accept the law as given by the court. La.

C.Cr.P. Art. 797 (2 and 4).

Initially, while he recognized the presumption of in-

nocence and the state’s burden to prove guilt beyond a

reasonable doubt, the juror indicated that he would ex-

pect the defendant to produce some evidence on his own

behalf in order to find him not guilty. However, upon

being further instructed by the trial judge in this re-

spect and in response to additional questions, Mr. Willis

said that “it would be kinda hard” but he could and

would apply the law according to the court’s instructions.

We believe the juror’s initial answers in this instance

were brought about more from a lack of understanding

of the law than bias. From our review of the entire voir

dire examination we are convinced of the juror’s ability

and willingness to decide the case impartially according

to the law and evidence. We therefore conclude that the

21

trial judge did not abuse the broad discretion vested in

him in ruling on this challenge for cause. State v. Shep-

pard, 350 So. 2d 615, 638 (La. 1977); State v. Sonnier,

379 So. 2d 1336, 1352 (La. 1980); State v. Bates, 397

So. 2d 1331, 1333 (La. 1981).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5 (81-KA-0377)

This assignment involves the trial court’s denial of

defendant’s motion for a mistrial on the ground that the

prosecutor made a comment during the voir dire ex-

amination which referred to the possibility that the de-

fendant would not take the stand and testify in his own

defense. La. C.Cr.P. Art. 770. The remark was con-

tained in the following question:

“Miss Peters: The fact that the defendant doesn’t

have to do anything in his defense, but if the de-

fendant elects to take the stand then that would

be his right. Would you, Mrs. Hutchison, could

you judge his credibility like any other witness?”

A similar argument was made in State v. Kenner, 336

So. 2d 824, 828 (La. 1976). It was rejected because of

the defendant’s failure to object or move for a mistrial

at the time. However, this court went on to say:

“In any event, the remarks were not a comment on

the failure of defendant to take the stand, but only

a statement that defendant might or might not pre-

sent evidence. It has been held by this court that a

prosecutor’s statement that ‘the evidence . . . was

uncontradicted and uncontroverted’ was not an im-

permissible comment on the accused’s failure to take

the stand. State v. Singleton, 321 So.2d 509 (La.

1975). Hence, we do not find that the prosecutor’s

remarks adversely affected defendant’s due process

rights in any way.”

22

We reach the same conclusion in this instance. We

do not consider the portion of the question objected to

as a comment on the failure of the defendant to take the

stand. Instead, the prosecutor merely mentioned the de-

fendant’s constitutional privilege not to do so and then

directed a legitimate inquiry toward the weight to be

accorded his statements if he should choose to testify.

This assignment is without substance.

ASSIGNMENT OF ERROR NO. 6 (81-KA-0377)

The defendant argues that the trial court erred in

curtailing cross-examination of Detective John Snell,

thereby denying him the opportunity to attack the credi-

bility of this state witness by showing his bias.

The defendant’s counsel attempted to ask the detective

if taking statements helps the state in getting convic-

tions. The state objected on the ground that the ques-

tion called for an opinion or a conclusion and it was

sustained. We agree with the trial court’s ruling that

the question called for an impermissible impression or

opinion of a witness not shown to have special knowledge

in that field. La. R.S. 15:463 and 464. Furthermore,

we are unable to see how the defendant could have been

prejudiced or harmed by such ruling.

This assignment has no merit.

ASSIGNMENTS OF ERROR NOS. 7, 8 AND 9

(81-KA-0377)

Since these assignments of error were neither argued

nor briefed by the defendant, they will be considered

abandoned. State v. Kenner, supra.

ASSIGNMENTS OF ERROR NO. 10 (81-KA-0377) &

ASSIGNMENT OF ERROR NO. 4 (81-KA-0378)

Lastly, defendant Shea contends that his sentences are

excessive. His principal complaint seems to be directed

at the disparity between his consecutive sentences of 17

23

and five years and those of his accomplice Ratliff of two

concurrent seven and one-half years sentences imposed

pursuant to guilty pleas for the same robberies. Such

comparison alone is not sufficient to establish an uncon-

stitutional excessive sentence. State v. Bonanno, 373 So.

2d 1284, 1294 (La. 1979).

Ratliff’s background is not in the record before us.

However, we note that at the time of these offenses Shea

was on probation for a felony theft convicted in Texas.

He was tlie one who held the revolver and discharged it

in the proximity of the victim Tuminello.

Before the 17 year sentence was imposed the trial

judge ordered a pre-sentence investigation and permitted

the defense to review the report. A pre-sentence hearing

was held, after which the judge stated for the record

in detail the considerations which he took into account

and the factual bases for imposing sentence under the

guidelines of La. C.Cr.P. Art. 894.1.

Under the circumstances and as armed robbery is one

of the most serious crimes in Louisiana, for which the

Legislature has provided a minimum sentence of five

years and a maximum of 99 years, without benefit of

parole, probation or suspension of sentence, it is quite

clear to us that the trial judge did not abuse his wide

discretion in sentencing this defendant to serve 17 years

at hard labor for the Tuminello robbery.

The defendant also contends that the five year sen-

tence imposed in the other case is excessive inasmuch as

the trial judge ordered that it be served consecutive to

his 17 year sentence. He argues that the second sentence

should have been made to run concurrently under La.

C.Cr.P. Art. 883, because the two offenses constituted parts

of a common scheme or plan. We disagree. These two

robberies occurred four days apart and were separate

crimes. But even if they were considered a single course

of criminal conduct, Article 883 is not phrased in man-

datory terms. More important, the five year sentence in

the Quick Mart robbery case was imposed pursuant to a

24

plea bargain to which the defendant, the district attor-

ney and the judge had agreed. Consequently, he is pre-

cluded from complaining of excessiveness of that sentence

before this court. State v. Curry, 400 So. 2d 614 (La.

1981). Also, it appears that the only condition to the

defendant’s guilty plea was the reservation of his rights

to appellate review of the trial court’s ruling on his mo-

tion to suppress.

These assignments of error therefore lack merit.

For the foregoing reasons, the convictions and sen-

tences are affirmed.

AFFIRMED.

CALOGERO, J., filed concurring opinion.

DENNIS, J., dissented.

25

SUPREME COURT OF LOUISIANA

No. 81-KA-0377 c/w

No. 81-KA-0378

STATE OF LOUISIANA

versus

KEVIN SHEA

CALOGERO, Justice, concurring.

The majority finds that Edwards v. Arizona ——

U.S. ——, 101 S.Ct. 1880 (1981), prohibits the police

from initiating an inquiry as to whether a suspect, who

earlier chose not to talk without an attorney, had changed

his mind. I am not convinced that Edwards v. Arizona

stands for that proposition. Edwards probably should be

construed more narrowly than that in my opinion.

The majority determines that Edwards v. Arizona

should be applied only prospectively. I am not convinced

that this is correct. In my mind the Edwards opinion

may well enhance the truth finding process, as opposed

to simply creating a prophylactic deterrence of police

activity.

For the reason first above stated I concur in the ma-

jority’s affirmance of defendant’s conviction and find in

this case no need to decide the retroactive/prospective

question. Defendant’s statement of July 3, 1979, was not

improperly admitted in evidence. Defendant neither

asked for counsel nor “expressed his desire to deal with

police only through counsel.” Edwards v. Arizona, supra.

An informed accused may waive his rights to silence and

to counsel and respond to interrogation. North Carolina

v. Butler, 441 U.S. 372, 376, 99 S.Ct. 1757, 1759 (1979).

This case is different from our recent State v. West,

—— So.2d —— (La. 1982), No. 81-KA-0675, where de-

fendant had been advised by his attorney to make no

statement to police, the police officers were fully aware

of that fact, and they took a statement from him none-

theless.

26

SUPREME COURT OF LOUISIANA

No. 81-KA-0377

c/w

No. 81-KA-0378

STATE OF LOUISIANA

v.

KEVIN MICHAEL SHEA

OPINION ON REHEARING—October 18, 1982

MARCUS, Justice

We granted a rehearing in this case to reconsider our

decision that the trial court correctly refused to suppress

defendant’s inculpatory statement.

In Miranda v. Arizona, 384 U.S. 436 (1966), the

United States Supreme Court held that the prosecution

may not use statements, whether exculpatory or inculpa-

tory, stemming from custodial interrogation unless the

accused is first advised of, and subsequently waives, his

right to remain silent and right to the presence of an

attorney.' However, it was not clear from Miranda the

standard to be applied in determining whether a person

in custody has waived these rights.

Michigan v. Mosley, 423 U.S. 96 (1975), sought to an-

swer Miranda. Mosley was arrested in connection with

two robberies and was advised of his Miranda rights.

Mosley subsequently informed the police that he did not

wish to answer any questions about the robberies, where-

upon the police ceased the interrogation. After an in-

terval of approximately two hours, Mosley was taken by

police to a different interrogation room and was again

1 Specifically, the accused must be warned that he has the right

to remain silent, that anything he says can be used against him

in a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.

27

given his Miranda warnings. In addition, he signed a

waiver of rights form. The police then told Mosley that

he had been implicated in a homicide. Mosley then made

a statement implicating himself in the homicide. The

Court held:

[T]he admissibility of statements obtained after the

person in custody has decided to remain silent de-

pends under Miranda on whether his rights to cut

off questioning was scrupulously honored. 423 U.S.

at 104. (Emphasis added. )

The Court, finding that Mosley’s “right to cut off ques-

tioning” was fully respected, held that the admission in

evidence of his incriminating statement did not violate

the principles of Miranda. However, the Court observed

in footnote 7 that:

The present case does not involve the procedures to

be followed if the person in custody asks to consult

with a lawyer, since Mosley made no such request

at any time. Those procedures are detailed in the

Miranda opinion. . . . (Emphasis added. )

The Court gave no reasons for distinguishing between

the right to remain silent and the right to counsel. Thus,

Mosley did not resolve the issue of whether the police

could resume questioning of an accused following his in-

vocation of the right to counsel.

Without an express statement of law on this issue,

lower federal courts reached varied results. It appears

that a majority of the courts did not make a distinction

between the right to counsel and the right to remain si-

lent. In so doing, the courts either used the “scrupu-

lously honor” test * of Mosley or the “knowing and intel-

* See United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th

Cir.), cert. denied, 436 U.S. 919 (1978); United States v. Collins.

462 F.2d 792 (2d Cir.), cert. denied, 409 U.S. 988 (1972).

28

ligent waiver” test * as dictated in Johnson v. Zerbst, 304

U.S. 458 (1938). A minority of the courts® applied a

per se rule against further police interrogation once the

accused invoked his right to counsel.

This court, when confronted with the issue, that is,

whether the police can resume questioning of an accused

following his invocation of the right to counsel, seems to

have adopted the “scrupulously honor” test. State v.

Thucos, 390 So. 2d 1281 (La. 1980); State v. Manning,

380 So. 2d 46 (La. 1980).

In Manning, defendant was arrested at 11:50 a.m.,

given his Miranda warnings and taken to the police sta-

tion. At the station at 2:25 a.m., he signed a waiver

of rights form. Later at 5:03 a.m., while the officer was

asking Manning if he understood his Miranda rights, he

stated that he wanted an attorney. Questioning immedi-

ately ceased and defendant was told that an attorney

would be made available to him. As the officers began

preparing to leave the interrogation room, defendant an-

nounced that he did not need an attorney and that he

wanted to “clear the air.” Manning then made a state-

ment at 5:08 a.m. (about five minutes after he had

3 See, e.g., United States v. Grant, 549 F.2d 942 (4th Cir.),

cert. denied, 432 U.S. 908 (1977); Cobbs v. Robinson, 528 F.2d

1331 (2d Cir. 1975), cert. denied, 424 U.S. 947 (1976).

4In Johnson v. Zerbst, 304 U.S. 548 (1938), the Supreme Court

held:

A waiver is ordinarily an intentional relinquishment of a known

right or privi'ege. The determination of whether there has

been an intelligent waiver . . . must depend, in each case, upon

the particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the

acyused.

Accord, e.g., Fare v. Michael C., 442 U.S. 707 (1979); North

Carolina v. Butler, 441 U.S. 369 (1978).

5 E.g., United States v. Massey, 550 F.2d 300 (Sth Cir. 1979);

United States v. Clark, 499 F.2d 802 (4th Cir. 1972); United

States v. Priest, 409 F.2d 491 (5th Cir. 1969).

29

invoked his right to counsel). Under these facts, we con-

clude that Manning’s Miranda rights had not been

violated.

In Thucos, defendant was arrested about midnight,

advised of his Miranda rights, and taken to the station-

house where he was again informed of his rights. He

elected not to sign the waiver of rights form and stated

that he did not want to talk and that he would like to

see an attorney. The officers allowed defendant to make

a call but testified that they did not know whether he

reached an attorney or not. Thereafter, defendant was

brought to his cell. Later that morning, at 9:00 a.m.

(some nine hours after invocation of his right to coun-

sel), defendant was brought to the interrogation room

and interrogated. Thucos was again advised of his Mi-

randa rights, signed a waiver of rights form, and made

an oral inculpatory statement. Defendant was then re-

turned to his cell. The next morning, he was once again

taken from his cell to the interrogation room where he

was advised of his rights. A second inculpatory state-

ment was then made by defendant. Under these facts,

we concluded that Thucos’ rights had not been “scrupu-

lously honored” and thus his statements were inadmis-

sible. In distinguishing Manning, we stated:

The officer’s initistion of further questioning in this

case, after defendant had asserted his right to be

silent and right to have counsel present during ques-

tioning, is fatal to the admissibility of the state-

ments made by the defendant.

Whether an accused’s rights are “scrupulously honored”

should depend on the particular facts of each case. Stated

another way, it depends on the totality of the circum-

stances. The fact that the officer initiates further ques-

tioning after the accused has invoked his right to coun-

se] should be only one of the factors considered in deter-

mining whether his right to counsel has been “scrupu-

lously honored.” Other factors, such as the time delay

30

between the original request and subsequent interroga-

tion, whether Miranda warnings were given before each

separate interrogation, whether waiver of rights forms

were signed, and whether or not pressures were asserted

on the accused by the police between the time he invoked

his right to counsel and the subsequent interrogation,

should be considered in making this determination. In

Thucos, we most probably placed too much emphasis on

the officer’s initiation of further questioning in reaching

our conclusion.*®

In the instant case, Shea was arrested on the after-

noon of July 2, 1979, and was fully advised of his Mi-

randa rights. He was taken immediately to the police

station where he was again advised of his rights. He

also signed a waiver of rights form. Shea told the de-

tectives (Snell and Smith) that he did not want to talk

about the case until he had seen an attorney. The in-

terview was immediately terminated. After an interval

of some twenty-four hours, Snell returned and told Shea

that he was about to be transferred. Snell asked Shea

if he wanted to talk about the case. Snell readvised Shea

of his Miranda rights and defendant again signed a

waiver of rights form. Shea then made a statement about

his involvement in the robberies. Under the totality of

the circumstances, we consider that Shea’s right to coun-

sel was “scrupulously honored.” Hence, his inculpatory

statement is admissible in evidence.

On May 18, 1981, Edwards v. Arizona, —— US.

—, 101 S.Ct. 1880 (1981), was decided. Edwards

held that when an accused has invoked his right to have

counsel present during custodial interrogation, a valid

waiver of that right cannot be established by showing

6In Edwards v. Arizona, U.S. ——, 101 S.Ct. 1880 (1981)

(discussed fully later in this opinion), initiation was made the

crucial factor to be considered. However, at the time of the de-

cision in Thucos, Edwards had not been decided and for reasons

to be discussed later, we hold that Edwards is non-retroactive.

i

31

only that he responded to further police-initiated cus-

todial interrogation even if he has been advised of his

rights. The Court further held that an accused, having

expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the

authorities until counsel has been made available to him,

unless the accused himself initiates further communica-

tion, exchanges or conversations with the police.

In the instant case, Shea invoked his right to counsel.

Counsel was never made available to him nor did Shea

initiate further communication with the police. To the

contrary, the police re-initiated further conversations

with him. Hence, under Edwards, the resumption of in-

terrogation was not a product of a voluntary waiver and

therefore the statement would be inadmissible.

However, Shea’s statement was made on July 3, 1979,

some ten months prior to the Edwards decision (May 18,

1981). The issue then is whether Edwards should be

given retroactive effect.’ We think not.

In United States v. Johnson, U.S. ——, 102 S.Ct.

2579 (1982), the Supreme Court stated:

Where the Court has expressly declared a rule of

criminal procedure to be a “clear break with the

past,” it almost invariably has gone on to find such

a newly-minted principle non-retroactive.

The Edwards Court, upon announcing its new ruling,

stated, “We now hold . . .” (emphasis added), which in-

dicates that the Court felt that this holding was breaking

new ground in the area of police procedure. The ruling

’ Shortly after Edwards was decided, the Supreme Court granted

certiorari in a number of cases which were apparently pending

on direct review in that Court, vacated the judgments and remanded

for further consideration in light of Edwards. This action does

not mean that the Supreme Court will ultimately decide to give

full retroactive effect to Edwards.

32

was unanticipated.* Law enforcement authorities had re-

lied on the old standards. In the instant case, the police

did not know that once Shea requested counsel, further

interrogation must cease until counsel had been made

available to him, unless he (Shea) initiated further com-

munication himself. The rule, therefore, as pronounced

in Edwards is a “clear break with the past” and thus

is non-retroactive.

In sum, the trial court correctly refused to suppress

defendant’s inculpatory statement.

DECREE

For the reasons assigned, our original opinion is re-

instated.

DIXON, C.J., dissented.

CALOGERO, J., filed dissenting opinion.

8“In the course of making that holding [Edwards], Justice

White established a new prophylactic rule.” The Supreme Court,

1980 Term, 95 Harv.L.Rev. 127 (1981-82) (emphasis added).

“The instant majority, by establishing the new per se rule, went

beyond what was necessary to exclude the confession... . This

new rule protects the suspect’s choice to be free from interrogation

until he consults with counsel. . . . The Court could have at least

noted that its new rule was not the most faithful reading of

Miranda.” 33 U. Fla. L. Rev. 788, 797 (1981) (emphasis added).

“The Court instead seized upon the opportunity to announce a

broad prophylactic rule in direct opposition to the previous trend

toward limiting the scope of Miranda.” 23 Ariz. L. Rev. 1391, 1400

(1981).

33

SUPREME COURT OF LOUISIANA

No. 81-KA-0377

c/w 81-KA-0378

STATE OF LOUISIANA

versus

KEVIN MICHAEL SHEA

October 19, 1982

CALOGERO, Justice, dissenting.

I dissent from the majority opinion. In. State v.

Thucos, 390 So.2d 1281 (La. 1980) this Court held that

inculpatory statements made by the defendant had to be

suppressed where defendant had asserted his right to

consult with an attorney but was nevertheless again ques-

tioned by police officers before he had an opportunity to

do so. Under those circumstances, we found that the

state had not met its burden of proving that the defend-

ant’s assertion of his right to an attorney had been

“scrupulously honored.” The instant case is indistinguish-

able from Thucos. Accordingly, the inculpatory state-

ments made by this defendant pursuant to questioning

initiated by the police officers after defendant had as-

serted his Miranda rights and requested an opportunity

to consult with an attorney should likewise have been

suppressed.

The majority opinion correctly states that the United

States Supreme Court held, in Miranda v. Arizona, 384

So.2d 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that

the prosecution may not use statements, whether exculpa-

tory or inculpatory, stemming from custodial interroga-

tion unless the accused is first advised of, and subse-

quently waives, his right to remain silent and his right

to the presence of an attorney. However, the majority

falls into error when it finds that Miranda did not make

34

clear, under the circumstances involved in this case, the

standard to be applied in determining whether a person

in custody waived these rights.

Miranda might not have made clear the standard to

be applied in a situation where the accused merely chooses

to remain silent (as opposed to asserting his right to con-

sult an attorney). Michigan v. Mosley, 423 U.S. 96, 96

S.Ct., 321, 46 L.Ed.2d 313 (1975). However, on the

question of what procedure should be utilized where the

accused asserts his right to counsel, the Court in Miranda

specifically stated:

Once warnings have been given, the subsequent

procedure is clear... . If the individual states that

he wants an attorney, the interrogation must cease

until an attorney is present.

I fail to see what the majority finds unclear about this

standard as it relates to this case. In fact, fully aware

of these expressions by the high court, this Court held,

in State v. Thucos, supra, that where the defendant had

requested to see an attorney before answering questions,

and the officers had again initiated questioning the fol-

lowing day without the defendant’s having consulted

with an attorney in the interim, the state had not met

its burden of proving that the defendant’s rights had

been “scrupulously honored.” We found the Thucos case

to be distinguishable from our earlier decision in State

v. Manning, 380 Co.2d 46 (La. 1980), where it was

found that the defendant’s rights had been “scrupulously

honored” because the defendant was the one to initiate

communications with the officers after previously assert-

ing his rights.

Yet the majority finds that Thucos is not dispositive

of this case because other factors should be considered

(other than that the defendant asserted his right to coun-

sel and was nevertheless again questioned by the officers)

in determining whether a defendant’s rights were scru-

pulously honored, and because “we most probably placed

35

too much emphasis on the officer’s initiation of further

questioning in reaching our conclusion” in Thucos. I find

it difficult to understand how the majority can conclude

that our emphasis might have been misplaced in Thucos,

since, not six months later, the United States Supreme

Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.

1880, 68 L.Ed.2d 378 (1981) came down with the exact

same result, likewise placing its emphasis on the defend-

ant’s assertion of his right to counsel coupled with the

initiation by the officers of further questioning. Th

Court in Edwards held: , . :

[A]lthough we have held after initially being ad-

vised of his Miranda rights, the accused may himself

validly waive his rights and respond to interroga-

tion, see North Carolina v. Butler, supra, 441 U.S.,

at 372-376, 99 S.Ct., at 1757-1759, the Court has

strongly indicated that additional safeguards are nec-

essary when the accused asks for counsel; and we

now hold that when an accused has invoked his right

to have counsel present during custodial interroga-

tion, a valid waiver of that right cannot be estab-

lished by showing only that he responded to further

police-initiated custodial interrogation even if he

has been advised of his rights. We further hold that

an accused, such as Edwards, having expressed his

desire to deal with the police only through counsel,

is not subject to further interrogation by the au-

thorities until counsel has been made available to

him, unless the accused himself initiates further

communication, exchanges or conversations with the

police. ‘Emphasis added.)

Perhaps the majority feels that the United States Su-

preme Court has misplaced its emphasis also. However,

that is not a question for our determination. Therefore

whether Edwards is retroactive or not, the majority falls

into serious error in cutting back on the standard set out

in Thucos, where the identical position has since been

taken by the United States Supreme Court.

36

Finally, the majority finds that Edwards should not

be given retroactive effect because it created a new rule.

While it is arguable whether Edwards created a “new”

rule at all (to be discussed further below) in view of its

reliance on Miranda, it certainly is clear that it did not

create a “new” rule in Louisiana since we had previously

rendered the Thucos decision on the same issue with the

same result.

Furthermore, I believe that Edwards v. Arizona, supra,

should be given retroactive effect. Although the United

States Supreme Court has not specifically addressed the

issue of prospective retrospective application of Edwards,

its actions clearly indicate that Edwards is not to be

applied prospectively only. One week after handing down

Edwards, the United States Supreme Court granted

certiorari in six cases which involved the same issue. In

each case, the petitioner was a defendant whose statement

had been ruled admissible by the trial court and whose

conviction had been affirmed on appeal. Blakney v. Mon-

tana, 451 U.S. 1013, 101 S.Ct. 2999, 69 L.Fd.2d 384,

(1981) ;:' White v. Finkbeiner, 451 U.S. 1013, 101 S.Ct.

3000, 69 L.Ed.2d 385, (1981);* Leuschner v. Maryland,

451 U.S. 1014, 101 S.Ct. 3001, 69 L.Ed.2d 385, (1981) ;*

Monroe v. Idaho, 451 U.S. 1014, 101 S.Ct. 3001, 69

L.Ed.2d 385, (1981);* Wantland v. Maryland, 451 U.S.

1014, 101 S.Ct. 3001, 69 L.Ed.2d 386 (1981);° and

James vy. Illinois, 451 U.S. 1014, 101 S.Ct. 3001, 69

L.Ed.2d 385 (1981).* One month later the Court followed

this same procedure in Williams v. Ohio, 452 U.S. 935,

101 S.Ct. 3073, 69 L.Ed.2d 949 (1981).? The Court

1605 P.c4 1093 (Mont. 1979).

2611 F.2d 186 (7th Cir. 1979).

3 45 Md.App. 323, 413 A.2d 227 (1980).

4101 Idaho 251, 611 P.2d 1036 (1980).

5 413 A.2d 1376 (Ct. Spec. App. Md. 1980).

¢ 82 Ill. App. 3d 551, 37 Ill. Dec. 934, 402 N.E.2d 936 (1980).

7 No cite below reported.

37

vacated the judgments and remanded the cases to the

courts below for “further consideration in light of Ed-

wards v. Arizona.” This procedure is contrary to that

adopted by the Court following its decision in Miranda.

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

L.Ed.2d 882 (1966), decided one week after Miranda,

directed that Miranda would apply only to cases in which

the trial began after the date of the Miranda decision.

The belief that Edwards is to be applied to this case

is further supported by People v. Paintman, 412 Mich

518, 315 N.W.2d 418 (1982), in which the Michigan

Supreme Court, relying upon Edwards, ruled that Paint-

man’s pre-Edwards statement was inadmissible. The

state of Michigan sought certiorari. The United States

Supreme Court denied the application. ——- U.S. ——,

102 S.Ct. ——, 50 L.W. 3935 (May 24, 1982). Accord:

Connecticut v. Smith, —— U.S. ——, 102 S.Ct. 1441

(1982).

Actually, the question whether to accord retroactive or

prospective application to a decision of the United States

Supreme Court only arises when that Court announces a

new rule. Johnson v. United States, -—— U.S. ——, 102

S.Ct. ——, 31 Cr.L. 3100 (decided June 21, 1982);

Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65

L.Ed.2d 159 (1980); Linkletter v. Walker, 381 U.S. 618,

85 S.Ct. 1731. 14 L.Ed.2d 1601 (1965) ; Battie v. Estelle,

655 F.2d 692 (5th Cir. 1981). In my view, Edwards

announces no new rule regarding the admissibility of

statements obtained by the police after a defendant has

invoked his right to counsel. The United States Supreme

Court in Edwards specifically stated that the use of Ed-

wards’ confession at trial “violated his rights under the

Fifth and Fourteenth Amendments as construed in

Miranda.” 451 U.S. at 480, 101 S.Ct. at 1882 (emphasis

supplied). Noting that Miranda required that once an

accused asserted his right to counsel, “the interrogation

must cease until an attorney is present,” the Court briefly

discussed cases after Miranda which applied the dictates

38

of Miranda to the particular facts presented in those

eases. The Court then concluded:

We reconfirm these views and to lend them sub-

stance, emphasize that it is inconsistent with

Miranda and its progeny for the authorities, at their

instance, to reinterrogate an accused in custody if he

has clearly asserted his right to counsel. 451 U.S. at

485, 101 S.Ct. at 1885.

Therefore, because I think Edwards v. Arizona, supra,

should be applied retroactively, and in any event, State

v. Thuchos, supra, is dispositive of the issue, holding that

questioning is not to be initiated by police once the de-

fendant has asserted his right to counsel until counsel

has been made available to him, I dissent from the ma-

jority opinion.

39

SUPREME COURT OF THE UNITED STATES

No. 82-5920

KEVIN MICHAEL SHEA, PETITIONER

v.

LOUISIANA

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

ON CONSIDERATION of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion to

proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be

and the same is hereby, granted.

April 30, 1984

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