Petitioners Brief — Shea v. Louisiana

"Wice Supreme Coy

; tu

FILED .

No. 82-5920 | JUL 14 Ye04

IN THE enema

OCTOBER TERM, 1983

KEVIN MICHAEL SHEA,

Petitioner,

Vv.

STATE OF LOUISIANA,

On Writ Of Certiorari To The

Supreme Court of Louisiana

BRIEF OF PETITIONER

FRANCES BAKER JACK

HuNTER & JACK

Suite 101, Energy Square

212 Texas Street

LA 71101

(318) 425-0010

COURT APPOINTED COUNSEL

FOR PETITIONER

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (282) 347-6283

’ BEST AVAILABLE COPY —_—_

QUESTION PRESENTED

Whether the rule first announced in Miranda v. Arizo-

na, 384 U.S. 436 (1966), and most recently reiterated in

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

and Fourteenth Amendments require suppression of

statements made after a defendant has invoked his right

to counsel during custodial interrogation, applies to Peti-

tioner Shea’s conviction which was not yet final at the

time Edwards was decided.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .... 2.22... ccccccccccccccccees i

Pogesed AGURITTTED oc ccccccccccesoceesssosesenn ili

Geese BERG cccccecccccscccesocesensueseeeaen 1

JURISDICTIONAL STATEMENT .... 2... ccccccccccccccess 1

CONSTITUTIONAL AND CODAL PROVISIONS .............. 1

STATEMENT OF THE CASE AND ProcepuRAL History ... 2

Suemness GF ASSUME 2. cccccocceccoecesessceseses 4

ARGUED occ cccceccccecoseeseesonsnstenneeneeen 6

I. Petitioner Shea’s Statements Were Obtained In

Violation Of His Fifth And Fourteenth Amendment

Rights, Protection Of Which Is Further Guaranteed

Under Miranda v. Arizona And Progeny. ...... 6

II. The Decision Announced In Edwards v. Arizona

Should To Petitioner Shea’s Conviction Which

Was Not Yet Final At The Time Edwards Was De- :

tions, including whether the case presently be-

fore the Court is on direct appeal or under col-

OSES GUUETER. cccccccccosecesuseenenneen 7

B. The integrity of the i is

substantially enhanced by the reiter-

ated in Edwards v. yo be saecbesianian 10

© Ren cl ce maar

savlisstion of Eiienas ©. Aciaan sepeesos 13

D. Limited i a ication of Edwards

v. Arizona not have a significant impact

on the administration of criminal justice..... 16

CSUELSERON oc cccccce+coccecceceuseeseneeeeel 17

TABLE OF AUTHORITIES

CASES: Page

Brown v. Louisiana, 447 U.S. 323 (1980) ............ 8

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

Fare v. Michael C., 442 U.S. 707 (1979) ..... 5, 11, 14, 15

Giacomazzi v. State, 633 P.2d 218 (Alk. 1981) ........ 17

Hankerson v. North Carolina, 432 U.S. 233 (1977)... 8

Hunt v. State, 632 S.W.2d 640 (Tex. App. 1982) ..... 17

Jacks v. Duckworth, 651 F.2d 480 (7th Cir. 1981) .... 17

Johnson v. New Jersey, 384 U.S. 719 (1966) ......... 10

Linkletter v. Walker, 381 U.S. 618 (1965) ............ 4,9

Mackey v. U.S., 401 U.S. 667 (197__) ............... 4

Michigan v. Mosely, 423 U.S. 96, N.7 (1975) ........ 5, 13

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

Oregon v. Tyler, 643 P.2d 379 (Ore. App. 1982) ...... 17

People v. Cerezo, 635 P.2d 197 (Col. 1981) ........... 17

People v. Paintman, 412 Mich. 518, 315 N.W.2d 418

EEE en debe ccesccecececcccc ccc: 16

Piankhy v. Cuyler, 703 F.2d 728 (3rd Cir. 1983) ..... 17

Rhode Island v. Innis, 446 U.S. 291 (1980) . 5, 6, 11 1415

Roberts v. Russell, 392 U.S. 293 (1968) ............. S

Robinson v. Neil, 409 U.S. 505 (1973) ............... 7

Silva v. Estelle, 672 F.2d 457 (Sth Cir. 1982) ........ 17

Solem v. Stumes, ___. U.S. —__; 104 S.Ct. 1338

EEE ST SE passim

State v. Brown, 317 N.W.2d 714 (Minn. 1982) ........ 16

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

State v. Platt, 637 P.2d 1073 (Ariz. App. 1982) ....... 17

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

Stovall v. Denno, 388 U.S. 293 (1967) ......... 4, 8, 9, 10

U.S. v. Bosby, 675 F.2d 1174 (11th Cir. 1982) ........ 17

U.S. v. Gordon, 655 F.2d 478 (2nd Cir. 1981) ........ 17

U.S. v. Hinckley, 672 F.2d 115 (D.C. Cir. 1981) ..... 17

U.S. v. Johnson, 457 U.S. 587 (1982) ............... 9

iv

Table of Authorities Continued

Page

U.S. v. Kiendria, 663 F.2d 349 (1st Cir. 1981) ....... 17

U.S. v. Schooner Peggy, 1 Cranch 103, 110; 2 Led 49, 51

I thd ietnicinted te etiltenel edad baie nk oo 0 ti g

U.S. v. Simko, 662 F.2d 660 (10th Cir. 1981) ........ 17

U.S. v. Wellins, 654 F.2d 550 (9th Cir. 1981) ........ 17

CONSTITUTIONAL AND CODAL PROVISIONS:

U.S. Constitution, Fifth Amendment ............. passim

U.S. Constitution, Fourteenth Amendment ....... passim

Louisiana Code of Criminal Procedure, Art. 922 ...... 2

OPINIONS BELOW

The opinions of the Supreme Court of Louisiana on

original hearing and rehearing appear in the Joint Appen-

dix and are reported with the following citation: State v.

Shea, 421 S.2d 200 (La. 1982).

JURISDICTIONAL STATEMENT

The judgment of the Louisiana Supreme Court on

rehearing was rendered on October 18, 1982. The Petition

For Writ of Certiorari was filed on December 17, 1982,

within the time set by Rule 20.1 of the Rules of the

Supreme Court. The Petition For Writ of Certiorari was

granted on April 30, 1984. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND CODAL PROVISIONS

The Fifth Amendment to the Constitution of the

United States provides as follows:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a i 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 offense to

twice be 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 proper-

ty be taken for public use without just compensation.

The Fourteenth Amendment to the Constitution of the

United States provides in Section One as follows:

All persons born or naturalized in the United States

and subject to the jursidiction thereof, are citizens of

the United States and of the State wherein the

reside. No State shall make or enforce any law whic

shall abridge the privileges or immunities of the

2

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 within

its jurisdiction the equal protection of the laws.

Louisiana Code of Criminal Procedure, Article 922

provides in pertinent parts; ;

A. Within fourteen days of rendition of the judg-

ment of the supreme court, in term time or pays

party may apply to the supreme court for a rehear-

e e court may act upon the application at any

B. A ent rendered by the supreme court be-

brat w hen th

comes when the delay for applying for a rehear-

ing | ~ expired and no snplication hens has ison

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

After trial by jury in state district court in Caddo

Parish, Louisiana, the Petitioner, KEVIN MICHAEL

SHEA, was convicted of the offense of armed robbery

(La. R.S. 14:64) (Criminal No. 111,684-A). He pled guilty

to a second count of armed robbery and reserved his right

to appeal the denial of his motion to suppress inculpatory

statements under State of Lowisiana v. Crosby, 338 So.2d

584 (La. 1976) (Criminal No. 111,684). He was sentenced

to consecutive sentences of seventeen years at hard labor

on the first conviction and five years imprisonm

ent at

hard labor on the second. ‘

The Petitioner was arrested on July 2, 1979. He was

taken to the Shreveport Police Station, where he was

turned over to Detectives Smith and Snell for question-

ing. The Petitioner was read his Miranda rights and he

signed the standard Miranda card. Petitioner stated that

he did not want to make any statements until he saw a

lawyer. The interview was terminated at that point.

3

The following afternoon, before Petitioner had con-

sulted with an attorney, Detective Snell returned to the

Shreveport City Jail, where he told Petitioner that he

was to be transferred to the parish jail. Without inquiring

of Shea whether he had spoken with an attorney and

without any indication from Shea that he wanted to be

re-interrogated, Snell asked him if he wanted to talk

about the case. After being readvised of his rights and

signing the Miranda rights card, Shea gave a statement

in which he confessed to committing the robberies.

The two charges of armed robbery were severed for

trial purposes. Prior to both scheduled trials, Petitioner

filed a Motion To Suppress the confessions. (J.A. 1).

Subsequently notice of intent to use the Petitioner's

statements was filed by respondent (J.A. 1). At trial on

Charge No. 111,684-A, held in April, 1980, the State

introduced the oral confession given by the Petitioner on

July 3rd. As the State sought to lay the foundation for the

admissibility of the confession, the Petitioner objected to

its admissibility on the grounds that there had not been

compliance with Miranda procedures. The trial court

overruled the objection, finding that the Petitioner had

waived his right to counsel. (J.A. 1). Petitioner was found

guilty of armed robbery at the conclusion of the trial. In

December, 1980, Petitioner moved to suppress the in-

culpatory statements as they related to Charge No.

111,684. (J.A. 1). The motion was denied. (J.A. 1). Peti-

tioner then withdrew his original plea and entered a plea

of guilty with a reservation of his right to appeal the

denial of his motion. (J.A. 1).

On appeal to the Louisiana Supreme Court, Petitioner

raised the issue of the trial court’s error in admitting the

confession into evidence at trial and the subsequent de-

nial of the Motion To Suppress. (J.A. 14). In its original

opinion, dated January 25, #82, that Court recognized

4

that there had been a violation of the standard governing

police interrogation as set forth in Edwards v. Arizona,

451 U.S. 477 (1981). (J.A. 16). The Court went on to hold,

however, that Edwards, decided on May 18, 1981, was

not retroactive and, therefore, did not apply to Petition-

er’s statements made in July of 1979. (J.A. 18).

Petitioner applied for a rehearing with the Louisiana

Supreme Court qn the issue of retroactivity. The rehear-

ing was granted. On October 18, 1982, the Court again

held that Edwards was not retroactive. (J.A. 32). That

decision became final on November 1, 1982, after the

expiration of fourteen days from the issuance of the opin-

ion. (La. Code of Criminal Procedure, Art. 922).

SUMMARY OF ARGUMENT

This case presents the question left unanswered by the

Court’s recent decision in Solem v. Stumes, ___ U.S.

——; 104 S.Ct. 1338 (1984). Petitioner Shea’s conviction

was on direct appeal to the Louisiana Supreme Court

when the Court announced the decision in Edwards v.

Arizona, 451 U.S. 477 (1981). In Solem the Court held

that Edwards is not to be applied retroactively to cases on

collateral review. Petitioner submits that for the reasons

discussed herein, limited retrospective application is ap-

propriate.

Under the criteria established for determining retroac-

tivity and its varying degrees, Edwards should apply to

Petitioner’s conviction. See: Stovall v. Denno, 388 U.S.

293 (1967). Distinctions between the scope of collateral

review and direct appeal warrant the differing degrees of

retroactivity. See: Linkletter v. Walker, 381 U.S. 618

(1965). Furthermore, the principles announced in Ed-

wards create an exception to the former rigid per se rule

of Miranda concerning police conduct during custodial

interrogation. The case does not present a classic “new

5

rule;” nonetheless the Court concluded in Solem that it

did, though not a “clear break” rule. The “new rule” of

Edwards substantially enhances the integrity of the

truth-finding process because it provides an accused the

utmost protection from coercive police practices. It pre-

serves his right to counsel which is indispensable to the

of one’s Fifth Amendment privilege against

self-incrimination. The critical role played by the attor-

ney in a custodial environment has been discussed time

and again by the Court. It is an integral ingredient in

assuring accuracy and integrity in the criminal justice

system.

Reliance on “old standards” is an inappropriate consid-

eration with respect to Edwards. The “old standards,” if

properiy construed under Miranda and progeny, re-

quired even more than that set forth in Edwards. Furth-

ermore, numerous cases after Miranda reiterated the

“clear” and “per se” rule of Miranda that once a person in

custody asserts the right to counsel interrogation must

cease. There was no room for doubt as to what the proper

were. See: Michigan v. Mosely, 423 U.S. 96

(1975); Fare v. Michael C., 442 U.S. 707 (1979); Rhode

Island v. Innis, 446 U.S. 291 (1980).

The criminal justice system and the efficient adminis-

tration of it will not suffer as a result of the Court holding

in this case that Edwards applies to Petitioner Shea's

case. The number of cases that will be affected pales into

insignificance when compared to the volume of cases that

would have been affected by complete retroactivity re-

jected by the Court in Solem in large part for that very

reason. Furthermore, numerous jurisdictions, both state

and federal, have already applied Edwards to factual

situations that arose prior to Edwards.

6

All factors considered, the Court should hold that Ed-

wards applies to convictions that were not yet final in May

1981.

ARGUMENT

I. Petitioner Shea's Statements Were Obtained In Violation

Of His Fifth And Fourteenth Amerdment Rights, Protec-

tion Of Which Is Further Guaranteed Under Miranda v.

Arizona And Progeny.

During the initial j — ,

immediately after his arrest, after having been advised of

his rights, including the right to remain silent and to

consult an attorney, Shea told Detectives Snell and Smith

that he did not wish to make a statement until he had

consulted an attorney. At that point the interrogation

ceased.

The next day, Detective Snell encountered Shea for the

second time when he returned to the city jail to transfer

Shea to the parish facility. Knowing that Shea had

asserted his right to speak to an attorney and without

inquiring whether the opportunity to do so had been

afforded him yet, Detective Snell immediately asked

Shea if he wanted to talk about the case. (J.A. 13, 30).

reasonably likely to evoke an incriminating response from

a suspect thus amount[ing] to interrogation.” Rhode [s-

land v. Innis, 446 U.S. 291, 301 (1980). Shea subsequent-

ly gave incriminating statements after being readvised of

his rights and signing a waiver card.

Interrogation of a person in custody after that person

has stated his intention to remain silent until he has

consulted an attorney violates the Fifth and Fourteenth

Amendments and the procedures designed by the Court

to protect the rights afforded therein. Once a person

7

under custodial interrogation “indicates in any manner

and at any stage of the process that he wishes to consult

with an attorney before speaking, there can be no more

questioning.” Miranda v. Arizona, 384 U.S. 436, 444-445

(1966). The Fifth Amendment prohibits compelling a per-

son to be a witness against himself and “any statement

taken after the person invokes his privilege cannot be

other than the product of compulsion, subtle or other-

wise.” Jd, 384 U.S. at 474. ee cg een

until an attorney is present or the suspect initiates con-

versation and subsequently knowingly and intelligently

waives his privilege against self-incrimination and right

to counsel. First announced in 1966, “later cases have not

abandoned that view.” Edwards v. Arizona, 451 U.S.

447, 485 (1981):

Il. The Decision Announced In Edwards v. Arizona Should

Apply To Petitioner Shea’s Conviction Which Was Not

Yet Final At The Time Edwards Was Decided.

sions encompasses several considerations, including

whether the case presently before the Court is on direct

appeal or under collateral review.

Retroactivity of judicial decisions is neither compelled

by nor prohibited by the Federal Constitution. However,

“(ajs a rule, judicial decisions apply ‘retroactively.

Solem v. Stumes, ___. U.S. ——; 104 S.Ct. 1338, 1341

(1984), quoting from Robinson v. Neil, 409 U.S. 505,

507-508 (1973). Varying degrees of retroactivity have

been established as a result of the innumerable cases in

which the Court has addressed the issue. New decisions

may be given total retroactive application to all prior

cases or limited application only to those where the judg-

ment is not yet final, or those where the trial has not yet

8

begun. The criteria for determining where to draw the

line in matters of criminal law are:

(a) the purpose to be served by the

(b) the extent of the reliance by law enforcement

authorities on the old standards, and (c) the effect on

the administration of justice of a retroacti applica-

tion of the new stantonte. ; wp

Stovall v. Denno, 388 U.S. 293, 297 (1967).

The foremost consideration is the purpose to be served

by the new rule. Brown v. Louisiana, 447 U.S. 323

(1980). Reliance on the old rule and the impact of retroac-

tivity on the administration of justice come into play only

“when the degree to which the rule enhances the integrity

of the factfinding process is sufficiently small.” Hanker-

son v. North Carolina, 432 U.S. 233, 243 (1977). Furth-

ermore, the impact of retroactivity is not persuasive

where the constitutional error at issue “presents a serious

risk that the issue of guilt or innocence may noi have been

amy 4 —— Roberts v. Russell, 392 U.S. 293,

In Solem v. Stumes, _._. U.S. ___; 104 S.Ct. 1338

(1984), the Court held that Edwards v. Arizona did not

apply retroactively to cases on collateral review. The

question was left open as to application to cases like

Shea’s where the conviction was not yet final. The distine-

tions between the scope of the writ of habeas corpus (the

avenue pursued in Solem) and direct appeal (Petitioner

Shea’s position) justify differing degrees of retroactivity,

as recognized by Justice Powell in his concurring opinion

in Solem, 104 S.Ct. at 1346-1348.

When a conviction is reviewed on habeas, one looks to

the law in effect at the time of conviction. “(CJorrect

application of. . . [that existing law] is all that is required

to ‘fore(e} trial and appellate courts . . . to toe the con-

stitutional mark.’ [Mackey v. U. S., 401 U.S. 667 at 687.]”

Solem v. Stumes, 104 S.Ct. at 1347 (J. Powell concurr-

ing). On the other hand, when reviewing a case on direct

appeal one looks to the law as it exists at the time of

review.

The origin of the distinction between what law controls

on direct appeal as opposed to habeas proceedings dates

back to United States v. Schooner Peggy, 1 Cranch 103,

110; 2 Led 49, 51 (1801), where Chief Justice Marshall,

writing for the Court, stated:

It is the general rule that the province of an appellate

court is only to enquire whether a j t when

aa ed Gin emmumguner ant. Pall t to

the judgment and before the decision of the appellate

court a law intervenes and positively the

rule which eee, Oe ee Eee ead Srnte

obligation nee where ts

. . . are sacrificed for national . . . the court

must decide to existing laws. and if it be

to set aside a judgment, tful when

, but which cannot be in viola-

tion of law, the judgment must be set aside.

More recently, the decision in Linkletter v. Walker, 381

U.S. 618 (1965), wherein the Court discussed Schooner

Peggy, establishes that under Supreme Court preceden*

“a change in law will be given effect while a case is on

direct review.” Jd. at 627.

In United States v. Johnson, 457 U.S. 537 (1982), the

following statement quoted from Stovall v. Denno, 388

U.S. 293, 300 (1967) was interpreted as an indication of

departure from the principles discussed above:

... no distinction is justified between convictions

now final .. . and convictions at various stages of

trial and direct review.

457 U.S. at 546; 102 S.Ct. at 2584. Such an interpretation

results only when the statement is taken out of the con-

10

text in which it was written. In the context in which the

liance on old standards and the overwhelming burden on

the administration of justice, as evidenced by the several

qualifying words omitted when the Court in Joh

quoted from Stovall: _—

We also conclude that, for these purposes, no distine-

+ yh between convictions now final, as in

388 U.S. at 300 (emphasis added). Sas nent &

Edwards was decided on May 18, 1981. The original

decision of the Louisiana Supreme Court on Shea's appeal

was rendered on January 25, 1982 (J.A. 12), eight months

after Edwards. The rehearing decision did not appear

until October, 1982 (J.A. 26), nine months later and

seventeen months after Edwards.

B. The integrity of the truth-finding process is sub-

stantially enhanced by the principles reiterated in Ed-

wards v. Arizona.

“(C)onfessions are likely to be highly persuasive with a

jury, and if coerced they may well be untrustworthy by

their very nature.” Johnson v. New Jersey, 384 U.S. 719,

729 (1966). For this reason the Court has outlined with

specificity the procedures to be followed in order to avoid

coerced confessions and violations of one’s Fifth Amend-

ment privilege against self-incrimination. The Miranda

ll

safeguards are intended to give a suspect “an added

measure of protection against coercive police p. actices

.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

Miranda was concerned with “ ‘the interrogation

environment created by the interplay of interrogation

and custody . . .’” /d at 299. That concern was succinctly

stated by the Court in Miranda:

The ne sorte in-custody in-

wihel one men to overbear the

= tae Readout aware of his privilege by his

alittle and he

indicates that he wants one before speaking to police,

they must respect his decision to remain silent.

384 U.S. at 469, 474.

The importance of the right to be free from self-

incrimination as guaranteed by the Fifth and Fourteerth

Amendments is clear. And while “(t Jhe fact that a suspect

Ra cuueanaDoneuyer Geen aet eam Ost ctatemnante Se

makes in response to subsequent police questioning are

likely to be inaccurate,” Solem, 104 S.Ct. at 1342, the

pivotal role of the attorney in insuring that they are not

Sos lene been seenauieed. His responsibility for seeing

that the rights of an accused are protected and the proper

procedures followed is discussed at length in Fare v.

Michael C., 442 U.S. 707 (1979). In Fare the lower court

had extended the Miranda rule prohibiting reinterroga-

tion toa situation where a juvenile had requested to speak

to his probation officer. The Court reversed, reasoning

that the role of an attorney for Fifth Amendment pur-

poses is critically distinct from that of a probation officer:

The rule in Miranda . - was based on thie Courts

= Jp

accurately

for into evidence. /Miran-

da] at 470; 86 S.Ct. at 1625. =

safeguard them. Those procedures were violated when

Shea was after assertion of his right to

after obtained constitutes grave constitutional error and

violates Miranda and its progeny, including Edwards

which opinion had been handed down prior to the

Louisiana Supreme Court's decision affirming Shea's con-

vietion. Though the Court indicated in Solem that the

relationship between Edwards and the truth-finding

process is not close enough to warrant complete retroac-

tivity, it is more than enough to warrant limited

retrospective application to Shea's conviction.

13

C. Reliance on the old standards is an inappropriate con-

sideration with respect to the retrospective application

of Edwards v. Arizona.

In Solem v. Stumes, 104S.Ct. at 1343, the Court stated

that Edwards was “not the sort of ‘clear break case that

almost automatically is nonretroactive . . . nonetheless

did establish a new rule.’” Petitioner respectfully sub-

mits that the decision in Edwards is subject to several

interpretations, one of which is that the “new rule” did

not create a new limitation on police conduct during in-

terrogation. To the contrary, the “new rule” authorizes

police conduct which could have been considered prohi-

bited by a fair construction of Miranda and its progeny.

The holding in Edwards reads as follows:

. . . we now hold that when an accused has invoked

his right to have counsel present during custodial

eee. a valid waiver of that right cannot be

j y showing only that he responded to

further police-initiated custodial inte tion even

if he has been advised of his rights. We further hold

that an accused, such as Edwards, having expressed

his desire to deal withthe police only through coun

sel, is not subject to r inte tion by the

un

authorities counsel has been e available to

him, unless accused himself initiates further

communication, ex or conversations with the

pouce. (e

451 U.S. at 484-485. Initiation by the accused excepts

statements thereafter made by him from the rule of ex-

clusion set forth in Miranda and reiterated in its progeny.

Prior to Edwards v. Arizona the rule concerning re-

newed custodial interrogation after assertion of the right

to counsel was simple and clear as noted by the Court on

numerous occasions. In Michigan v. Mosely, 423 U.S. 96,

100, N.7 (1975), the Court stated:

The renee case does not involve the procedures to

be followed if the person in custody asks to consult

14

with a lawyer, since Mosley made no such request at

any time. Those procedures are detailed in the

Miranda opinion as follows:

‘If the individual states that he wants an attorney,

the interrogation must cease until an attorney is

present. At that time, the individual must have an

opportunity to confer with the attorney and to have

him present during any subsequent questioning. If

the individual cannot obtain an attorney and he in-

dicates that he wanis one before speaking to police,

they must respect his decision to remain silent.’

In his concurring opinion in that case, Justice White

pointed out that “(t]he Court showed [in Miranda]. . .

that when it wanted to create a per se rule against further

interrogation after assertion of a right, it knew how to do

so. The Court . . . said ‘if the individual states that he

wants an attorney the interrogation must cease until an

attorney is present.’ Miranda v. Arizona, 384 U.S. at 474

(1966).” Id. at 109.

The Court’s opinion in Fare v. Michael C., 442 U.S. 707

(1979) begins by stating that Miranda “specified” that

interrogation must cease after an accused expresses his

intention to exercise his right to counsel. The Miranda

safeguards are referred to repeatedly as “per se,” and the

rule established therein as “clear.” Jd. at 717, 719.

Recognizing the primary role of the attorney as the pro-

— of rights (as discussed earlier in brief), the Court

stated:

“For this reason, the Court fashioned in Miranda the

rigid rule that an accused’s request for an attorney is

per se an invocation of his Fifth Amendment rights,

requiring that all interrogation cease.”

442 U.S. at 719.

The starting point of the Court’s opinion in Rhode

Island v. Innis, 446 U.S. at 293 goes even further than

15

that of Fare. Where Fare noted that the Court “specified”

the standards concerning custodial interrogation, Justice

Stewart in Rhode Island begins the majority opinion with

the statement that “{iJn Miranda v. Arizona (citations

omitted) the Court held . . .” (emphasis added). There

was no doubt about the rule that interrogation must cease

until an attorney is present; the concern in that case was

what constituted interrogation, an issue further clarified

in Edwards.

In Solem v. Stumes the Court concluded that because it

could not be said that Edwards had been clearly foresha-

dowed, the reliance interest was compelling and complete

retroactivity was inappropriate. Of critical importance to

the Court’s statement that “[wJe do not believe that the

police can be faulted if they did not anticipate its per se

approach,” 104 S.Ct. at 1343, is the following passage

from the majority opinion in Fare v. Michael C., 442 U.S.

at 718:

Whatever the defects, if any, of this relatively rigid

requirement that interrogation must cease upon the

accused’s request for an attorney, Miranda’s holding

has the virtue of informing police and prosecutors

with specificity as to what t ey may do in conducting

custodial interrogation, and of informing courts

under what circumstances statements obtained dur-

ing, _ interrogation are not admissible. (emphasis

Law enforcement officials were well aware, or most

certainly should have been, of the restrictions upon custo-

dial interrogation. Furthermore, the hoiding in Edwards

v. Arizona loosened rather than tightened those restric-

tions by creating an exception to the former rigid rule. As

Justice Stevens observed in his dissenting opinion in

Solem v. Stumes:

tthe fact that some police departments may have

ailed to heed the plain language of the Miranda

16

opinion certainly is not justification for reaching the

conclusion that the reconfirmation of what was said

in Miranda should be regarded as a new con-

stitutional rule.” 104 S.Ct. at 1351.

D. Limited retrospective application of Edwards v. Arizo-

na would not have a significant impact on the adminis-

tration of criminal justice.

In rejecting total retroactivity of Edwards the Court in

Solem v. Stumes noted the “disruptive effect” such would

have on the administration of justice as one could “only

guess at the number of cases where Edwards might make

a difference . . .” 104 S.Ct. at 1345. Those factors do not

apply in the case at bar because such a result would not

occur where retroactivity is limited to only those cases

that were pending on direct appeal, as Shea’s was, in May

1981 when Edwards was decided. Clearly the number of

cases would be greatly reduced. Furthermore, many

state and federal courts when faced with the issue, both

on direct appeal and habeas, had applied Edwards

retroactively prior to the decision in Sole: 1. Some of the

decisions did so without discussion. Others either specifi-

cally held Edwards to be retroactive or found no reason to

so hold because Edwards did not create a new rule.

In People v. Paintman, 412 Mich. 518, 315 N.W. 2d 418

(1982), the Michigan Supreme Court found that it was

“unnecessary to analyze the question of retroactivity

under traditional standards” because, rather than

announcing a new rule, Edwards merely clarified and

reconfirmed existing law. The Minnesota Supreme Court

held that Edwards is to be applied retroactively for the

same reason. State v. Brown. 317 N.W. 2d 714 (Minn.

1982).

The state courts of last resort ia Alaska and Colorado

applied Edwards to cases arising prior to the decision.

17

Giacomazzi v. State, 633 P.2d 218 (Alk. 1981); People v.

Cerezo, 635 P.2d 197 (Col. 1981). The courts of appeal in

Oregon, Texas and Arizona also applied Edwards to fac-

tual situations that arose prior to May 1981. Oregon v.

Tyler, 643 P.2d 379 (Ore. App. 1982); Hunt v. State, 632

S.W.2d 640 (Tex. App. 1982); State v. Platt, 637 P.2d

1073 (Ariz. App. 1982).

In the following cases the federal courts of appeal have

given Edwards retrospective application without dis-

cussion of the issue: U.S. v. Hinckley, 672 F.2d 115 (D.C.

Cir. 1981); U.S. v. Kiendra, 663 F.2d 349 (1st Cir. 1981);

U.S. v. Gordon, 655 F.2d 478 (2nd Cir. 1981); Piankhy v.

Cuyler, 703 F.2d 728 (3rd Cir. 1983); Silva v. Estelle, 672

F.2d, 457 (5th Cir. 1982); Jacks v. Duckworth, 651 F.2d

480 (7th Cir. 1981); U.S. v. Wellins, 654 F.2d 550 (9th Cir.

1981); U.S. v. Simko, 662 F.2d 660 (10th Cir. 1981); and

U.S. v. Bosby, 675 F.2d 1174 (11th Cir. 1982).

In light of the numerous decisions already applying, at

the least, limited retrospective application of Edwards,

for the Court to so hold in this case would affect the

criminal justice system only minimally.

CONCLUSION

The Court should hold that Edwards v. Arizona applies

to Petitioner’s conviction which was not yet final at the

time Edwards was decided and reverse the judgment of

the Louisiana Supreme Court.

Respectfully submitted,

FRANCES BAKER JACK

HuNTER & JACK

Suite 101, Energy Square

212 Texas Street

Shreveport, LA 71101

(318) 425-0010