Opposition Brief — Duckworth v. Eagan

Supreme Court. Us.

promonene FILED

|

ae eee SEP 16 yore

JOSEPH F. SPANIOL, UR.

CLERK

Number 88-317

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

JACK R. DUQQORTH, Warden,

Petitioner,

vs.

GARY JAMES EAGAN,

Respondent.

MOTION TO PROCEED IN FORMA PAUPERIS

The aeabove named Respondent, Gary James Eagan, by his

ettorney, Howard B. Elsenberg, respectfully alleges and shows

the Court es follows:

1. Respondent wes granted leave to proceed In forma

pauperis in this case by both the United Stetes District Court

for the Northern District of Indiana and the United States Court

of Appeals for the Seventh Circult.

2. The undersigned attorney was appointed by the Un! ted

States Court of Appeals for the Seventh Circult to represent

Respondent pursuant to the provisions of the Criminal Justice

Act of 1964, as amended.

3. Respondent remains confined et the Indiana Stete

Penitentiary et Michigan City, Indiene serving the sentence

attacked In this case.

4. Counse! believes thet Respondent remains Indigent,

unable to pey the costs of this matter.

For ‘these ressons, pursuant to Supreme Court Rule 46,

Respondent respectfully moves this Court for leave to proceed Ip

forms pauperis without the paying of costs and witnout the

necessity of printing the enclosed Brief In Opposition.

Dated this 16th day of September, 1988.

Respectfully subm!

AU for 18

104 Leser Lew Bullding

Southern I! | Inols Univers! ty

Carbondale, Illinois 62901

(618) 536-4423

ATTORNEY FOR RESPONDENT

Supreme Court. U.S.

FILED

Number 86-317

SEP le wes

In The

SUPREME COURT OF THE UNITED STATES JOSEPH seen. ge

October Term, 1987

JACK R. DUGOORTH, Warden,

Petitioner,

vs.

GARY JAMES EAGAN,

Respondent.

On Petition for Writ of Certiorar! to the

United States Court of Appeals for the Seventh Circu!lt

RESPONDENT'S BRIEF IN OPPOSITION

HOWARD B. EISENBERG

104 Leser Lew Bul! ding

Southern Ill inols University

Carbondele, Iiiinols 62901

(618) 536-4423

ATTORNEY FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

1. Did the police properly comply with the requirements of

Miranda y. Arizone, 384 U.S. 436 (1966) when they Informed

Respondent, prior toe custodial interrogetion, thet a! though

he hed the right to counsel, "Lwle have no way of giving you s

lawyer but one wil! be appointed for you, If you wish, If and

when you go to court."

2. Should this Court exercise its discretion to review the

edmissibility of Respondent's second statement when there Is no

record in elther stete or federse! court of the circumstences of

thet statement and when the only reilef granted by the Court of

Appee!s wes to remand the case to the District Court for fact

finding?

TABLE OF CONTENTS

ARGUMENT

1-8

1. THE DECISION OF THE COURT OF APPEALS 1S CONSISTENT 1-6

LISHED LAW IN THE cy j

DECISIONS OF OTHER cums’ oe a SERIE OF We

A. The Decision In thi

S Case was

Well Estab) Ished Law In the — “as 1-2

B. The Decision In this Case Is Consistent with

C. The Warnings Given In

thi

Letter and Spirit of ca rennen te 5-6

Il. GIVEN THE Lack OF EV!

DENTIARY

—. senmmease FEDERAL COURT, Rev ie or eines =

amy SECOND STATEMENT 1S CLEARLY PRe-

Conc! usion

TABLE OF AUTHORITY

Cases

Brooks vy. State, 229 A.2d 833 (Del. 1979)

Brown v. State, 396 S.2d 137 (Ala. App. 1981)

Gallfornia vy, Prystock, 453 U.S. 355 (1981)

, 464 Pa, 349,

399 A.2d 111 (1979)

Coyote vy. United States, 380 F.2d 305 (10th Cir.

1967), cert. denied, 389 U.S. 992 (1967)

Cribbs v. State, 378 S$.2d 316 (Fia.App. 1980)

Glipin vy. United States, 415 F.2d 638 (5th Cir. 1969)

aackson vy. Virginia, 443 U.S. 307 (1979)

Kilnger vy. United States, 409 F.2d 299 (8th Cir.

1969), cart. denied, 396 U.S. 859 (1969)

Massimo vy. United States, 463 F.2d 1171 (2nd Cir.

1972), cert. denied, 49y U.S. 1117 (1973)

Miranda vy. Arizona, 384 U.S. 436 (1966)

Moore v, State, 25! Ark. “%0, 472 S.W.2d 940 (1971)

» 260 Cal.App.2d 705, 6/ Cal.

Rptr. 347 (1968)

2 Ce!.App.3d 510, 82 Cal. Rptr.

393 (1969)

State v. Cassel|, 602 P.2d 410 (Alaska 1979)

State v. Creach, 77 Wash.2d 194, 41 P.2d 329 (1969)

State v. Dess, 184 Mont. 116, 602 P.2d 142 (1979)

State v. Grierson, 92 Iida. 155, 504 P.2d 1204 (1972)

State v. Robbins, 4 N.C.App. 463, 167 S.E.2d 16 (1969)

Page

> 2...

w

2

2

2

2

2

2

TABLE OF AUTHORITY

Cont! nued

Cases

Sullins v. United States, 389 F.2¢ 985 (10th Cir.

1968)

United States vy. Contreras, 667 F.2d 976 (11th Cir.

1982), cert. denied, 459 U.S. 849 (1982)

United States v. Garcia, 431 F.2d 134 (9th Cir. 1970)

United States vy. Lacy, 446 F.2d 511 (5th Cir. 1971)

United States v. Nos, 443 F.2d 144 (9th Cir. 1971)

546 ©.2d 1298 (7th Cir. 1976)

» 467 F.2¢

1248 (7th Cir. 1972)

Mcight vy. North Carolina, 483 F.2d 405 (4th Cir.

1973), cert. denied, 415 U.S. 936 (1974)

Page

Number 88-517

; In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

JACK R. DUCKWORTH, Warden.

Petitioner,

vs.

GARY JAMES EAGAN,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

ARGUMENT

!

THE DECISION OF THE COURT OF APPEALS IS CONSISTENT WITH PREVIOUS

DECISIONS OF THIS COURT, LONG ESTABLISHED LAW IN THE CIRQUIT,

AND THE MAJORITY OF DECISIONS OF OTHER COURTS.

A. The Decision In this Cease was Cons!stent with Wel!

Estabi ished Law In the Circult.

The Interrogation in this case took place In 1982, a full

decade after the United States Court of 4ppeals for the Seventh

Circult ruled thet these precise admonitions violated the

mandate of Miranda vy. Arizona, 584 U.S. 4356 (1966), United

States ex rel, Wililam vy. Twomey, 467 F.2d 1248 (7th Cir. 1972).

Severe! yeers leter Milliam wes reaffirmed by the Court of

Appesis in linited States ex rel. Piacek v. State of liiinols,

546 F.2d. ‘298, 1300 (7th Cir. 1976). The decision In this case

simply reaffirmed wel! estab! ished jew in the Circult.

B. The Decision in this Case Is Consistent with the

Majority of Cases Reising this Precise issue.

Without question, there Is a split of authority on the

question of the validity of Miranda warnings which Inform the

suspect thet although he hes the right to counse!, the po!l!ce

"have no wey of giving you e lawyer, but one w!!! be eppo!nted

for you, If you wish, If and when you go to court." Contrary to

the Impression created by the Stete's Petition, however, the

majority of courts which have considered the valid'ty of these

precise Miranda wernings heave found them to be fatally defective

because they condition the suspect's right to counse! on his

eppeerance In court. This Is certalniy true of state appe! iate

courts, Brown vy. State, 396 $.2d 137 (Ala.App. 1981); State y.

GCasseli, 602 P.2d 410 (Alaska, 1979); Moore vy. State, 25! Ark.

436, 472 S.W.2d 940 (1971); People v. Clark, 2 Cal.App.3¢ 510,

62 Cal.Rptr. 393 (1969); Srooks vy. State, 229 A.2¢d 853 (De!.

1979); Cribbs vw. State, 378 S.2d 316 (Fie.App. 1980); State vy.

Grierson, 95 Ide. 155, 3%4 P.24 1204 (1972) (dictum); State y

Carpenter, 211 Kan. 254, 505 P.2d 755 (1973); State v. Dess, 184

Mont. 116, 602 P.2d 142 (1979); State v. Robbins, 4 N.C.App.

463, 167 S.E.2¢ 16 (1969); Commonwealth vy. Johnson, 484 Pe. 349,

399 A.2u 111 (1979); State vy. Creach, 77 Wash.2d 194, 461 P.2¢

329 (1969).

The circults ere split on the propriety of these

ednon! tions. The Second and Fourth Circults havo refused to

overturn convictions besed on substantially simiier Miranda

wernings, Massimo yv. United States, 4635 F.2d 117! ¢2nd Cir.

1972), art. denied, 409 U.S. 1117 (1973); Mright v. Nerth

Carolina, 4835 F.2d 405 (4th Cir. 1973), cart, deniad, 415 U.S.

936 (1974). The Fifth and Ninth Circults have split on the

Issue, both upholding end rejecting the specific lenguege

Involved in this cease. compare, Glipin vy. United States, 415

F.2d 88 (5th Cir. 1969) with United States vy. Lacy, 446 F.2d

511 (5th Cir. 1971), end United States vy. Garcia, 4351 F.2d 134

(9th Cir. 1970) with United States vy. Noa, 445 F.2d 144, 146

(9th Cir. 1971).

The Tenth Circult. In reversing a conviction, noted:

+-we think the sentence: “we heave no way of giving you

e ltewyer, but one wil! be appointed for you, If you

wish, If end when you go to court" itmnedletely

following e stetement of a present right to retained

and appointed counsel Is iikely to confuse an

unsophisticated mind.

Sulilns »v. United States, 389 F.2d 965, 986 fn. 2 (10th Cir.

1968). The prior decision relied upon by Petitioner (Petition

p- 12), Ooyote v. linited States, 580 F.2d 3505, 307 (10th Cir.

1967), cert. denied, ~89 U.S. 992 (1967) was not dealing with

the same type of admonitions Involved In this appeal.

The First, Third, Sixth, Elghth®*, and District of Columble

Circults heave not dealt with the precise issue raised in this

case.

Of perticuler interest Is one of the most recent cases

desiing with this Issue, United States vy. Contreras, 667 F.24

976 (11th Cir. 19862), cert. denied, 459 U.S. 849 (1982).

Petitioner contends (Petition, p. 13) ‘thet (Contreras Is

contrary fo the decision of the Court of Appee!s in this case

(Petition, p. 13). A complete reading of the decision, however,

reveeis thet It supports the action of the Court of Appeals

here. In Contreras the eccused wes informed oniy thet counse!

could be eppolnted by the court. The Eleventh Circuit

considered the Impact of this Court's decisior - Callfornia vy.

Prysock, 4535 U.S. 355 (1981) on Miranda warnings which Informed

the defendant ‘thet counse! would heve to be aopointed by the

court. On pege 135 of the Certiorar! Petition the State quotes

some of the Eleventt Circult's reasoning. immediately fo! iowing

the quoted the lenguage, however, the court sald:

Pryseck thus stands for the proposition thet e Miranda

warning Is adequate if It fully Informs the accused of

his right to consul? with counse! prior to questioning

end

Qn some future event. (emphes!s added)

667 F.2¢ at 979. Following this observation is a footnote which

gives es examples of improper warnings @ statement that counse!

"The Eighth Circult case relied upon by Petitioner, Ki longer

uw. United States, 409 F.2d 299 (8th Cir. 1969), cart, denies,

396 U.S. 859 (1969) did not Involve e Miranda warning which

conditioned the right to counsel on some future event, Le,

counse! would only be provided "If and when" the suspect went to

court.

would be avaliable "if" the suspect went to court, citing,

United States v. Garcis. supra., Giipin v. United States,

supre., end Peopie vy. Bolinski, 260 Cal.App.2d 705, 718, 67

Cal.Rptr. 347 (1968). It Is thus apperent thet the Eleventh

Circult would find the Instant warnings to be conditione! end,

thus, Invalid.

Respondent readily acknowledges that there Is e split of

suthority on the precise issue presented here. However, the

majority of the decided cases ere in accord with the Seventh

Circult's decision here. In addition, this Is an Issue which

wes hotly |itigeted in the decade following Mirands. it Is not

® question which Is belng currentiy I!tigated. indeed, as

demonstrated above, it Is only because the authorities falied to

follow wel! estebi ished jaw In the Circult that thi«= case arose.

This Issue hes been resolved in the Seventh Circult, It Is not

being currently I!itigeted elsewhere, end there Is no occasion

for this Court to consider the questior now.

C. The Warnings Given In this Case Violated the Letter

and Spirit of Miranda.

Petitioner engeges in some prosecutorise! wishful thinking

In asserting et pege 9 of the Petition thet recent decisions of

this Court cest doubt on the decision of the Court of Appeals in

this case. While It may be helpful to Petitioner to suggest

thet this cease iInvo'ves “wagic words" (Petition, p. 9) or a

"hypertechnica! app! ication of Miranda” (Petition, po. 11), such

Is clearly not the case. The admonitions ef forded Respondent

here violated the letter and spirit of the Miranda dec!sion.

The warnings given pleiniy sey thet Eagan could not have an

attorney to assist him unless he went to court. “hus, If he did

not go to court, he would not get en aettorney. If the

Interrogation was prior to his appearance In court there was "no

wey" he could obtein one, If indigent. Manifestiy these

wernings misstated s centre! requirement of Miranda--thet

counse! be provided prior to the Interrogetion. Here the

\ warnings were invalid because they condition the right to

counse! on appearing In court.

The Issue here Is not one of semantics--!t Is @ question of

Respondent's substentive rights under the Fifth and Fourteenth

Amendments. The warnings can only be read in one wey--Tto deny

Respondent's right to counse! during the Interrogetion. This Is

whet Miranda prohibited, nd this Is why the decision of the

Court of Appeals Is correct and entirely consistent with the

decisions of this Court.

a

GIVEN THE LACK OF A EVIDENTIARY RECORD IN EITHER THE STATE OR

FEDERAL COURT, REVIEW OF RESPONDENT'S SECOND STATEMENT IS

CLEARLY PREMATURE.

Petitioner elso asks this Court to review the ed!ss!b!! | ty

of Eagan's second statement, obtelned efter he was efforded jess

defective Mirands warnings. Respondent submits thet such Issue

Is not ripe for consideration by this Court. The remedy grented

by ‘the Court of Appeals was to remand this case to the District

Court with directions to grant Respondent an evidentiary hearing

on the admissibiiity of the statement given after the second set

of Miranda warnings. Petitioner apparentiy ergues thet the

statement given efter these more correct admonitions wes

edmissibie end thet remend |s not warranted. “he problem with

this argument Is thet there was no evidentiary hearing held In

the District Court Initially and there Is |!terally no record of

whet occurred In the state court. indeed, the following Is the

entire record of the stete court proceedings on the

ednissibility of Respondent's confess!ons:

Comes now the Stete of indiane by its Prosecuting

Attorney, by M"eputy Prosecutor, "enle!l Bella, and

comes eiso the Defendant, Gary James Eagen (s!c), In

his own proper person and by Counsel, Devid Schnelder,

In open court, end this cause Is submitted on

Defendant's Motion to Suppress Written Stetements.

Evidence Is heerd and Arguments ere hed, and the Court

being duly edvised, now denies Motions to Suppress.

Stete Court Record, p. 39.

While Petitioner asks this Court to grant deference to the

stete court's factual findings, 't Is perfectiy apparent thet no

fectue! findings were made in the Indiana courts. There Is no

transcript of the suppression hearing, end the trial court made

no findings of fect. “hile the Indlene Supreme Court found the

statements “voluntery", thet Court hed no record before It upon

which to make such e determination. Even assuming thet normal ly

ee

e stete appellate court's "findings of fects” would be ent! ti«J

to deference when e federe! court reviews on habeas corpus,

certeiniy the law cannot be that the reviewing federa! court Is

bound to accept the state appellate court's fectua!

determination when there is no record upon which to bese such

findings and when the Judge who actually heard the evidence made

no findings of fect. Certeiniy, It would be unconst! tutional!

for the Court to defer to the state court under such

circumstances, cf. Jackson v. Virginia, 445 U.S. 307 (1979)

(unconstitutional! for state to convict when no reasonable trier

of fact could find evidence sufficient).

Given the tote! lack of evidentiary record upon which to

make any decision regerding the second statement, ‘this is

clearly not the sort of case which should be considered by this

Court In the exercise of Its discretion.

CONCLUSION

For the reasons specified herein, Respondent respectful /y

urges the Court to deny the Instent Petition for Writ of

Certiorar!.

HOWARD B. EISENBERG

104 Lesar Law Bull ding

Southern Ill inols Univers! ty

Carbondale, Ii!!inols 290!

(618) 536-4425

ATTORNEY FOR RESPONDENT