Respondents Brief — Duckworth v. Eagan

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QUESTIONS PRESENTED FOR REVIEW

1. Following this Court’s decision in Miranda v. Ari-

zona, 384 U.S. 436 (1966), did the state trial court

properly admit in evidence the first statement obtained

from Respondent after law enforcement authorities

informed him, that although he had the right to counsel

prior to the custodial interrogation: “We have no way of

giving you a lawyer, but one will be appointed for you, if

you wish, if and when you go to court”?

2. Didthe Court of Appeals properly remand this case

to the District Court for determination of whether

tespondent’s second statement was obtained after a vol-

untary waiver of his right to counsel when there is no

record of the state court suppression hearing properly

before the Court and when the second warnings were

themselves inadequate and failed to correct the statement

in the first warnings that counsel would only be provided

if Respondent's case went to court?

TABLE OF CONTENTS

Page

Tape oF AUTHORITY. «occ ccccccceessusncvseeuee® iv-Vili

STATEMENT OF FACTS. .......-cccccccescccccceeseos I

Su MMARY OF ARGUMENT. ....ccccescecevccesesseces d

ARGUMENT ....cccccccccsssevcevedeesesaeeeeeeenme i)

RESPONDENT'S FIRST STATEMENT Was INAD-

MISSIBLE BECAUSE IT Was OBTAINED AFTER HE

Was GIVEN DEFECTIVE MiraAnvpA WARNINGS

Wuicu CONDITIONED His Ricut To CoUNSEL ON

APPEARANCE IN COURT. ...-ccceccccsccccueces

The Question Of Whether Respondent Was “In

Custody” at the Time of His First Statement Is

Not Properly Before the Court And, in any

Event, Respondent Was “In Custody” Within

the Meaning Of Viranda First Statement.

1. The “Custody” Question Is Not Properly

Before The Coust. ....--ccccesscccess

2. Respondent Was Clearly “In Custody” At

The Time Of His First Statement. .....

_ The Warnings Given Respondent Prior To His

First Statement Violated Miranda By Con-

ditioning His Right To Counsel On His

Appearance In Court After Police Interroga-

CHORD. .. cc ccvccccscoune unseen enn

1. Miranda Explicitly Requires That Coun-

sel Be Provided An Indigent Suspect Or

Be Properly Waived Prior To A Custodial

Interrogation. .......cecsecaccccesses

Although Lower Courts Have Disagreed

On The Validity Of The “If And When

Miranda warnings, The Majority Of The

Courts Have Held Such Admonitions

Invalid, And Such Result Is Clearly

tequired After This Court's Decision In

a: ST

a. Prior To Prysock The Majority Of

Courts Held “If And When” VW iranda

Warnings To Be Invalid. ........-.

iil

Table of Contents Continued

Page

b. This Court’s Decision In Prysock

Teaches That These .Viranda Warn-

ings Are Invalid Because They Con-

dition The Assistance Of Counsel On

An Event Occurring After The Inter-

ES 24

C. Respondent Advocates Neither A Right To

“Instant Counsel” Nor “Counsel On Call,” But

The Jurisdiction Must Have Some Procedure

For Complying With Miranda. ............

Il. THe Court Or AppEALS PRoPpERLY REMANDED

Tuts Case To THE District Court For DETER-

MINATION OF WHETHER RESPONDENT KNow-

INGLY WAIVED His Ricut To CouNSEL Prior To

THE SECOND STATEMENT. 34

A. Remand Is Appropriate So The District Court

Can Properly € onsider The Transcript Of The

State Suppression Hearing Which Is Not Now

Properly Part Of The Court Record. ........ 34

B. The Warnings Given Respondent Prior To His

Second Statement Were Themselves Defec-

ee ceo e es casescccccccccces 38

C. Notwithstanding This Court’s Decision In

Elstad, Respondent’s Confession Was Not

ie cei ect ccccsecess 41

1. The Second Statement Is Not Admissible

Because The Second Miranda Warnings

Were Not “Careful And Thorough” As

mous SU ceed. .................. 41

The Combination Of The Two Sets Of

Miranda Warnings Warrants At Least A

Remand To The District Court, If Not

Outright Vacation Of Respondent’s Con-

CS 42

EE ISIE EL 15

TABLE OF AUTHORITY

Decisions of this Court Page

Beckunth v. United States, 425 U.S. 341 (1976).

Berkemer v. McCarthy, 468 U.S. 420 (1984)

Boone v. Chiles, 35 U.S. (10 pes tek) Oe ,

California vy. Behe ler. $63 U.S. 1121 (1983) (per curianet)

~ S Ved

California V. Pruysock. 15 + LJ a ee ») (1981) | pe r

Peer ees oo ae Oa 6s ok 8 ek Oe be

Connor v. Fincr, 431 U.S. 407 (I9TT) «wc. ccc céccdcen

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

EB E..O.C V Fi le ral Lahor Re lations Authority, 176 U.S.

1Y (1986) pawn ae es paper bane ae

FD. Rich _ v. United States, Industrial Lumber i &

4117 U.S. 116 (1974)

[illinois v. peraey 162 U.S. 213 (1983)

McGoldrick Vv. (" AM pag inte (re hie rale Transatl anti que,

Se Us PD owe wcavacesucexoeusnns

Minnesota vy. Murphy, 165 U.S. 420 (1984)

Miranda v. Amzona, 384 U.S. 436 (1966) PASS)

Miree V. De Kal! County, sed U.S. 25 1977)

Namet v. United States, 373 U.S. 179 (1963) ..........

Oregon v. Elstad, 470 U.S. 298 (1985)... ee. s, 4]

Oregon v. Mathiason, 429 U.S. 492 (1977) per curiam),

Springne ld, Mass. v. Kibbe, 480 U.S. 257 (1986) per

CuUurram..... a eae : a

[yy r¢ d Paree / Ne rTucce. Line V. Mitche I], 15] U.S. 6 | LY]

[nited States v. Leon, 468 U.S. 897 (1984)

Wong Sun v. United States, 371 U.S. 471 (1963)

6, 7, 18, 24-29, 3

Jett vy. Castaneda, 578 F.2d 842 (9th Cir. 1978)

Johnson vy. State, 484 N.E.2d 49 ( Ind. App. 1985). .... 10,

Table of Authorities Continued

Decisions of Other Courts Page

Anthony v. United States, 667 F.2d 870 (10th Cir. 1981),

cert. denied, 457 U.S. 1133 (1982)................

Arnold vy. State, 548 P.2d 659 (Okla. Crim. 1976)... ....

Borden. Inc. v. F.T.C., 495 F.2d 785 (7th Cir. 1974)

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

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

Commonwealth vy. Johnson, 484 Pa. 349, 399 A.2d 11]

PESOS Gusiciveswasudceeuaceanu tunclaiese: LY,

Commonwealth v. Singleton, 439 Pa. 185, 226 A.2d 753

(1970)

Coyote v. United States, 380 F.2d 305 (10th Cir. 1967),

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

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

De La Rosa vy. Texas, 743 F.2d 299 | oth Cir. 1984), cert.

denied, ATO U.S

1065 (1985) 28, 2

Dickerson vy. Alabama, 667 F.2d 1364 (11th Cir. 1982). 36-37

Dickerson v. State, 257 Ind. 562, 276 N.E.2d 845

(1972)

Fagan v. Duckworth, 843 F.2d 1554 (7th Cir. 1988)

Fagan v. State, 480 N.E.2d 946 (Ind. 1985) ...........

E’'mler v. State, 259 Ind. 241, 286 N.E.2d 108 (1972

Fassett vy. Delta Kappa E psilon (New York), S07 F. 2d LL: a)

Srd Cir. 1986), cert. de nied, 107 S.¢ 't. 2463. 95

* Ed.: fy AR ORE AR et eed Dee Le oe.

Gilpin v. United States, 415 F.2d 638 (5th Cir.

| SEE ee Pe ee Ped Aare oe 1

Grennier v. State, TO Wis.2d 204. 234 N. W.2d 316 (1975)

Grimes vy. State, 170 Ind. App. 525, 353 N.E..2d 500 (1976)

Gutierrez v. State, 270 Ind. 639, 388 N.E.2d 520 (1979).

Harrell y. State, 357 S.2d 642 (Miss. |

Holguin v. State, 256 Ind. 371, 269 N.E.2d 159 (1 71). a

lngram v. Justice Court for Lake Valli u Jud oe 12

Cal. Rptr. 410, 447 P.2d 650 (1968)... 2... ee

Jefferson v. State, 399 N.E.2d 816 (Ind. App. 1980) ....

Karmun v. Commissioner of Internal Revenue . 149 F.2d

267 (9th Cir.), cert. denied, 474 U.S. 819 (1985)... .

Klingery. United States, 409 F.2d 299 (&th Cir 1969), cert.

denied, 396 U.S. 859 (1969)

20), 21, 26-28,

Table of Authorities Continued

Decisions of Other Courts Page

Lathers v. United States, 396 F.2d 524 (5th Cir. 1968). 21, 22

Massimo v. United States, 465 F.2d 1171 (2nd Cir. 1971),

cert. denied, 409 U.S. 1117 (1973). ............. 20, 22

Maxwell v. State, 408 N.E.2d 158 (Ind. App. 1980) ..... 39

Mayzak v. United States, 402 F.2d 152 (5th Cir. 1968)... 29

Moore v. State, 251 Ark. 436, 472 S.W.2d 940 (1971).... 19

People v. Bolinski, 260 Cal. App.2d 705, 67 Cal. Rptr. 347

j SVT CTeTee re eT TET eT ECT eee

People v. Campbell, 216 Mich. App. 196, 182 N.W.2d 4

(1970), cert. denied, 400 U.S. 945 (1971) .......... 19

People v. Clark, 2 Cal. App.3d 510, 82 Cal. Rptr. 393(1969) = 19

People v. Evans 125 I]l.2d. 50, N.E.2d —___ (1988)

No. 60705 (IIL. Sup.Ct. Sept. 29, 1988). .......... 30, 32

People v. Stewart, 267 Cal. App.2d 366, 75 Cal. Rptr. 484

PE 9 xcb tadGas dabeaihee ade eaneee dean hen es 24

People v. Swift, 32 A.D.2d 183, 300 N.Y.5.2d 639 (1969),

cert. denied, 396 U.S. 1018 (1970)................ 1Y

People v. Williams, 131 Ul. App.sd 149, 264 N.E.2d 901

Re SO ees ee er oe eee ee ea aut 19

Richardsen v. Duckworth, 834 F.2d 1366 (7th Cir.

er errr ore Pr Pee res Sere 9, 40

Robinson v. State, 272 Ind. 312, 397 N.E.2d 956

| A re ee are ee ee Y, 40

Sotelo v. State, 264 Ind. 298, 342 N.E.2d 844 (1976)... 39, 40

State v. Carpenter, 211 Kan. 234, 505 P.2d 755 (1975)... 19

State v. Cassell, 602 P.2d 410 (Alaska, 1979). .......... 19

State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969)... 19

State v. Dess 184 Mont. 116, 602 P.2d 142 (1979) ....... 19

State v. Grierson, 95 Ida. 155, 564 P.2d 1204 (1972)... .. 19

State v. McBroom, 394 N.W.2d 806 (Minn. App.

PREIS Ben A eR Pee nS or Oa Wher 19, 27-28

State v. Malwia 56 Hawaii 428, 539 P.2d 1200 (1975).... 19

State v. Micheliche, 220 N.J.Super. 5382, 533 A.2d 41

(1987) beau

State v. Mumbaugh, 107 Ariz. 589, 491 P.2d 448 (1971). 19

State v. Robbins, 4 N.C. App. 463, 167 5.£.2d 16 (1969). 19

State v. Sterling, 377 S.2d 58 (La. 1979) .............. 19

Stearns v. Consolidated Management, Ine., 747 F.2d

SR ED oho so ccs axek oumeueedeene ede 36

Sullins v. United States, 389 F.2d 985 (10th Cir. 1968), 20-21

Table of Authorities Continued

Decisions of Other Courts Pa

Terrovona v. Kincheloe, 852 F.2d 424 (9th Cir. 1988) ...

United States v. Cassell, 452 F.2d 533 (7th Cir. 1971)...

United States v. Contreras, 667 F.2d 976 (11th Cir. 192),

cert. denied, 459 U.S. 849 (1982). ............ 26-27, 29

('nited States v. Garcia, 431 F.2d 134 (9th Cir.

DE cunk adhe aad kenteeeaeautaderde cee cs 20, 25-27

United States v. Lacy, 446 F.2d 511 (5th Cir. 1971) . 20)

United States v. Noa, 443 F.2d 144 (9th Cir. 1971).... 20. 25

United States v. Streifel, 781 F.2d 953 (1st Cir. 1986)... vi

United States v. Yunis, 859 F.2d 953 (D.C. Cir. 1988) .. a7

United States ex rel. Kellogg v. McBee 452 F.2d 134 (7th

en EN as 4k chs obs es dows aed eee cidaecuueeeel 36

United States ex rel. Placek v. Illinois, 546 F.2d 1298 (7th

Se Me ag Ce bn a ee ee oo 9», 20, 29

United States ex rel. Williams v. Twomey 467 F.2d 1248

yt eee mona », 20

Wright v. North Carolina, 483 F.2d 405 (4th Cir. 1973),

cert. denied, 415 U.S. 936 (1974)................. 20)

UNITED STATES CobDE

IS U.S.C. ome. BOGAN). . 0. ccc ccc cccccccccccsccs 2

BaP) ears ES In gc cc rcccncecccccecncvecvecs 2

SP aati WOs MEIN. oso 4 c és wee buena evcueduuns 1, 36

RULES OF THE SUPREME CourT oF THE UNITED

STATES

I ea ee fare Ciro te ee a es ee )

FEDERAL RULES OF CRIMINAL PROCEDURE

col cc cae ee tas aicies kaka dae ne celenetaens 32

FEDERAL RULES OF APPELLATE PRocEDURE

NE os inet oss ia Cates deecuubaweesiecen 35, 36, 37

STATE STATUTES, ADMINISTRATIVE REGULATIONS,

AND Court RULES

Alaska Stat. sec.18.85.110(a)(2). 2... 00000.0........ 31

tule 3.111(¢)(2), Florida Rules of Criminal!

aR ES ean De Sine AOC a a 30-31

Idaho Code sec. 19-853(a)(2). 2.2.0... ee ee ee ee. >|

N.M. Stat. Ann. see. 31-15-12C (1978). ............. 51

N.C. Gen. Stat. see. TA-353(e) (1986)... ..0........ 1

vill

Table of Authorities Continued ~-

Page

Vt. Stat. Ann. tit. 13. sec. 5234(a)(2) (1988) ......... 3

Wis. Admin. Code sec. SPD 2.02(2) (1984) .......... 30

Wyo. Stat. see. 7-6-10G(a) (1GB1) . . 0. ecw ccecccses 3

OTHER AUTHORITY

American Bar Association, Standards for Criminal Jus-

kere rere Serer Tee ry re 24, 52

Comment, Criminal Procedure: Miranda Warning and

the Right to “Instant Counsel”—A Growing Schism.

OD <0 sc cub ot -eeecca-bou e600 24

Ferguson and Douglas, A Study of Juvenile Waiver, 7 San

a, OE PO 6 occa eveeecevevk eeu cusiowes 23

Griffith and Avres, A Postscript to the Miranda Project:

Interrogation of Draft Protesters, 77 Yale L. Rev. 318

er rer Pe rye oT Tee eT TS 23

Grisso, Juveniles’ Capacities to Waive Miranda Rights:

An Empirical Analysis 68 Calif.L.R. 1154 (1980)... 25

Grisso, Juveniles’ Waiver of Rights, (St. Louis, 1981)... 25

Lafave and Israel, Criminal Procedure, (1984) ........ L5

Leiken, Police Interrogation in Colorado: the Implemen-

tation of Miranda, 47 Denver L. J. 1 (1970)...... 23, :

Medalie, Zeitz, and Alexander, Custodial Police Inter-

rogation in our Nation's Capital: The Attempt to

Implement Miranda, 66 Mich. L. Rev. 1547

—

PR CC oar er Dead ohn Be Le hue bale 23, 31

Milner, The Court and Local Law Enforcement, (Beverly

I PO Se ret a oe herr i ae ra Net 3)

Sy ey ee aa hhewn ete we 35

National Legal Aid & Defender Association, Gwidelines

for Legal Defense Systems inthe United States (1976)

Nissman, Hagen, and Brooks, Luw of Confessions, (1985) 1:

Robertson. Jurisdiction of the Supreme Court of the

E/E I METER a sracvenccreczensens ... 1-11

Stern, Gressman, and Shapiro, Supreme Court Practice

SE EN se irr och cae VG Aare eae weRaaees 1]

STATEMENT OF THE CASE

In the late night hours of May 16, 1982 the Respondent,

Gary James Eagan, telephoned the Chicago Police

Department to report that he had seen a dead nude

woman (SCR! 205). Respondent took the Chicago police

to a wooded area near Lake Michigan just over the Illinois

state line in indiana. There the police found a young

woman shouting for assistance. As the police assisted the

woman, they heard her ask Respondent: “Why did you

stab me?” (SCR 207).

Respondent informed police that he had been attacked

earlier in the evening by several persons who later

abducted the young woman (SCR 163-164, 227). When the

Hammond, Indiana police arrived they requested that

Respondent go with them to the Robertsdale Station

(J.A. 103) at which time the officers noticed what

appeared to be dried blood on the outside of the Respond-

ents automobile. Respondent indicated that the blood

Was the result of a friend’s cut hand (SCR 165). Respond-

ent gave the police permission to take samples of the blood

from his car (SCR 166, 228). The pelice determined that

there were discrepancies in Respondent’s story which

included observations that would have been physically

impossible for Respondent to make (SCR 176). At that

point Respondent appeared distraught, tired, and glassy

eyed (J.A. 100). The Hammond police asked Respondent

to waive his constitutional rights and provide a statement.

The specific waiver of rights, which Respondent signed,

read as follows (J.A. 133):

YOUR RIGHTS

Before we ask you any questions, you must under-

stand your rights. You have the right to remain

‘State Court Record

)

silent. Anything you say can be used against you in

court. You have the right to talk toa lawyer for advice

before we ask you any questions, and to have him

with you during questioning. You have this right to

the advice and presence of a lawyer even if you cannot

afford to hire one. We have no way of giving you a

lawyer, but one will be appointed for you, if you wish,

if and when you go to court. If you wish to answer

questions now without a lawyer present, you have

the right to stop answering questions at any time.

You also have the right to stop answering at any time

until you talk to a lawyer (emphasis added).

in this initial statement (SCR 236-239; J.A. 134-137),

given at 11:16.a.m. on May 17, 1982, Respondent indicated

that he picked up the young woman in Chicago and drove

around until they went to the wooded area where they

engaged in sexual relations. They then drove to “Cal

Park” where the woman got into a van with several men.

When the van returned, the woman was not present, so

Respondent went to the wooded area but was unable to

find her. Respondent then called the Chicago police.

Respondent further indicated in the statement that the

blood on the seat of the driver's side of the vehicle came

froma friend named “Jim” who had cut his finger the week

before.

The police believed that this statement was not consis-

tent with the physical terrain of the area (SCR 241).

Respondent was held overnight in custody “for probable

cause” (J.A. 103). After the police interviewed the victim

in the hospital, they again interviewed Respondent. This

interview took place at 4:21 p.m. on May 18, 1982, approx-

imately 29 hours after the initial statement. Before giving

this statement, Respondent signed a waiver from (J. A.

141-142) which included the following description of

rights:

»)

1. Before making this statement, I was advised

that I have the right to remain silent and that any-

thing I might say may or will be used against me ina

court of law.

2. That I have the right to consult with an attorney

of my own choice before saying anything, and that an

attorney may be present while I am making any

statement or throughout the course of any con-

versation with any police officer if I so choose.

3. That I can stop and request an attorney at any

time during the course of the taking of any statement

or during the course of any such corversation.

4. That in the course of any conversation I can

refuse to answer any further questions and remain

silent, thereby terminating the conversation.

5. That if I cannot hire an attorney, one will be

provided for me.

After signing the waiver, Respondent gave a statement in

which he indicated (SCR 250-254) that he, two friends.

and the woman went to the area near the beach. Each of

the men had sexual relations with the woman, but a

struggle ensued when the woman requested payment in

return for sex. Respondent admitted hitting the woman

on the head with a brick and then stabbing her (SCR

252-253). After giving this statement, Respondent

returned to the crime scene with the police and assisted

them in finding a knife, sheath, towel, and rag (SCR

255-256).

On May 19, 1982 an information was filed in the Supe-

rior Court of Lake County, Indiana charging Respondent

with rape and attempted murder. Following the denial of

Respondent's motion to suppress evidence (SCR 38-39),

the case was tried to a jury in that court. In addition to the

introduction of Respondent's statements, the primary evi-

dence against him was the testimony of the victim, Kay

Sandra Williams. Ms. Williams testified that Respondent

and two other men forced her to engage in sexual relations

(SCR 116). The prosecutrix identified Respondent as the

person who then hit her with a brick and stabbed her

(SCR 117-118).

The primary witness called by Respondent was his

sister who indicated that shortly after the stabbing

Respondent arrived at her home. Respondent told her

that he had taken drugs and had drunk whiskey and that

“they were all stoned to begin with” (SCR 309). Respond-

ent appeared to be “wrecked” and “hyperactive” (SCR

311). The Respondent did not testify at trial.

Based on this evidence, the jury found Respondent not

guilty of rape, but guilty of attempted murder (SCR

78-79). Upon conviction, Respondent was sentenced to 35

years imprisonment.

The Indiana Supreme Court affirmed Respondent's

conviction, Eagan v. State, 480 N.E.2d 946 (Ind. 1985),

Justice De Bruler, dissenting (J. A. 82-94). On February 6,

1986 Respondent commenced this habeas corpus action in

the United States District Court for the Northern Dis-

trict of Indiana pursuant to 28 U.S.C. $2254 (J. A. 64-381).

Respondent asserted that his federal constitutional rights

were violated by the admission of the statements. The

District Court, Hon. Allen Sharp, Chief Judge, presiding,

denied the writ on June 26, 1986 (J. A. 49-53), but issued a

Certificate of Probable Cause on July 14, 1986.

Respondent appealed to the United States Court of

Appeals for the Seventh Circuit, and that Court

appointed counsel. On March 22, 1988 a divided panel of

the Seventh Circuit reversed the order of the District

Court (J.A. 3-48). The majority, following the Seventh

Circuit’s earlier decisions in United States er rel.

Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972) and

United States ex rel. Placek v. Illinois, 546 F.2d 1298 (7th

Cir. 1976), concluded that the words used in the first

Miranda warning suggest “erroneously that only those

accused who can afford an attorney have the right to have

one present before answering any questions; those who

are not so fortunate must wait. This language further

implies that if the accused does not ‘go to court,’ i.e. the

government does not file charges, the accused is not

entitled to an attorney at all,” (J.A. 8). The Court

remanded the case for a determination of whether

Respondent’s second statement was made after a knowing

and voluntary waiver of his constitutional rights, as the

Miranda warnings afforded Respondent prior to his sec-

ond statement did not explicitly correct the misinforma-

tion in the first admonitions, Eagan v. Duckworth, 843

F.2d 1554 (7th Cir. 1988).

On May 24, 1988 the Seventh Circuit denied the War-

den’s Petition for Rehearing En Banc, four judges dis-

senting (J.A. 1-2). The Warden then filed this certiorari

petition which was granted by the Court on October 11,

1988, 109 S.Ct. 218. On October 31, 1988 the Court

appointed the undersigned attorney to represent

Respondent before this Court, 109 S.Ct. 301.

Respondent remains confined at the Indiana State

Prison, Michigan City, serving this sentence.

Other facts necessary to a determination of this case

will be stated in the body of this Brief.

SUMMARY OF ARGUMENT

l. A. The United States, as Ainicus Curiae, sug-

gests that Respondent was not “in custody” at the time of

his first interrogation. As this issue has not been raised by

the State in any previous court and was not raised in the

certiorari petition, the “custody” question is not properly

before the Court. Nevertheless, the facts here show that

Eagan was in custody at the time of his first interrogation.

B. 1. This Court’ decision in Miranda v. Arizona,

384 U.S. 436 (1966) requires that an indigent suspect be

informed of his right to consult with assigned counsel

before and during a custodial interrogation. Here the

warnings given Respondent prior to his first statement

violated Miranda because he was informed that he could

only have provided counsel if his case ultimately went to

court.

2. a. The Miranda warnings given Eagan prior to

his first statement indicated that he had the right to

appointed counsel “if and when you go to court.” Lower

courts have disagreed on the propriety of the “if and

when” warnings, with most courts holding these specific

warnings improper because they state that counsel can

not be provided at the time of the interrogation. Courts

have found the “if and when” warnings “pretzel-like,”

ambiguous, and contradictory. Those courts which have

upheld these warnings have seriously overestimated the

intellectual sophistication and comprehension of the aver-

age suspect, when empirical data demonstrate tha’. many

suspects do not understand correct Miranda warnings.

b. This Court’s decision in California v. Prysock, 455

U.S. 355 (1981) (per curiam) stands for the proposition

that a Miranda warning which links the right to

appointed counsel to a future point after the interrogation

is invalid. Here the warnings given Eagan prior to his first

statement did exactly that—linked his right to free coun-

sel to a point after the interrogation, his appearance in

‘

court. Analysis of the cases cited with approval in Prysock

and cases interpreting this Court’s decision all indicate

that Lhe “if and when you go to court” admonitions violate

Miranda.

C. Itis entirely proper under Viranda for a jurisdic-

tion to require a court to appoint counsel to represent a

suspect at a custodial interrogation. Other states have

adopted various procedures to supply counsel at custodial

interrogations. These procedures include requiring law

enforcement authorities to contact the court or public

defender, allowing the suspect to make direct contact

with a public defender, and establishing lists of private

attorneys willing to represent indigent suspects at

custodial interrogations. The problem here is that the

State of Indiana has adopted none of these procedures and

does not provide for the assignment of counsel prior to

court appearance by any method. This then results in

police telling suspects that although they have the right to

consult with counsel before and during the interrogation

“(we have no way of giving you a lawyer, but one will be

appointed for you, if you wish, if and when you go to

court.” This statement, even if it correctly reflects Indi-

ana law, denies a suspect his right to have an attorney at

the time of the questioning, before court appearance.

II. A. The only relief granted Respondent by the

Court of Appeals was to remand this case to the District

Court with directions to determine whether Eagan’ sec-

ond statement was made after a knowing and understand-

ing waiver of his right to counsel. This relief is appropriate

because the transcript of the suppression hearing, which

is now apparently available, was not prepared until

months after the oral argument in the Seventh Circuit.

This transcript was never considered by the Indiana

Supreme Court or the District Court and was not made

tail

‘part of the record on appeal in the Seventh Circuit.

Remand is appropriate so the District Court can consider

this transcript in conjunction with all other evidence

regarding the facts and circumstances of the second con-

fession.

B. The second warnings given Respondent also failed

to comply with Miranda as they informed him that he had

“the right to consult with an attorney of my own choice

before saying anything.” Although later in the same

warnings Respondent was informed that if he “cannot hire

an attorney, one will be provided” for him, the structure

and content of admonitions do not clearly inform a suspect

of his right to assigned counsel before and during the

questioning.

(. This case is distinguishable from Oregon v. Elstad,

470 U.S. 298 (1985) because here the second warnings

were not complete, clear, or comprehensive. In addition,

when one considers the two sets of warnings given to

Respondent 29 hours apart, it is obvious that Eagan was

never properly informed of his right to have counsel at the

interrogation. He was first told he could not have

appointed counsel at the interrogation, and the second

instructions, themselves ambiguous, failed to correct the

misstatement regarding the right.

Under all of the circumstances of this case the modest

relief. granted by the Seventh Circuit, remand to the

District Court, should be affirmed.

ARGUMENT

I RESPONDENT'S FIRST STATEMENT WAS INADMIsSI-

BLE BECAUSE IT WAS OBTAINED AFTER HE WAS

GIVEN A DEFECTIVE MJRANDA WARNING WHICH CON-

DITIONED HIS RIGHT TO COUNSEL ON APPEARANCE

IN COURT.

A. The Question Of Whether Respondent Was “In Custody”

At The Time Of His First Statement Is Not Properly

Before The Court And, In Any Event, Respondent Was “In

Custody” Within The Meaning Of Miranda When He Gave

The First Statement.

1. The “Custody” Question Is Not Properly Before The

Court.

At footnote 7 appearing at pages 10 and 11 of his Ai/-

cus Brief, the Solicitor General suggests that Eagan was

not “in custody” at the time he gave his first statement,

and thus the requirements of Miranda v. Arizona, 384

U.S. 436 (1966) do not apply at all. The question of

custody has never been raised by the State of Indiana in

any court, state or federal, and thus this issue should not

be considered by this Court, E.F.0.C. v. Federal Labor

Relations Authority, 476 U.S. 19, 24 (1986) (“Normal

practice ... is to refrain from addressing issues not

raised in the court of appeals.”); .Wiree v. DeKalb County,

433 U.S. 25, 34 (1977), even though such issue is raised by

amicus in this Court, United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56, 60, fn. 2 (1981). Moreover, the issue

was not raised in the certiorari petition, and thus is not

properly before the Court, Supreme Court Rule 34. l(a),

F_D. Rich Co. v. United States, Industrial Lumber Co.,

417 U.S. 116, 121, fn. 6 (1974); Namet v. United States,

373 U.S. 179, 190 (1963). When an issue has not been

raised in the lower courts, is not raised in the certiorari

petition, and is objected to by respondent, it is inap-

propriate for this Court to consider such question,

Springfield, Mass. v. Kibbe, 480 U.S. 257 (1986) (per

curiam).

This is not one of those “exceptional cases” in which the

Court should decide an issue neither pressed nor passed

upon by the courts below, see, WeGoldrick v. Compagnie

Generale Transatlantique, 309 U.S. 430, 434-435 (1940).

This is particularly true when reviewing a state criminal

conviction in which issues of comity dictate that this

Court not reach issues never asserted in state court,

Illinois v. Gates, 462 U.S. 213, 217-224 (1983). While this

case technically comes to this Court from the United

States Court of Appeals which reviewed the state convic-

tion on habeas corpus, the considerations governing

review of a state court conviction are the same as li Gates.

Those considerations include: (1) the state court record is

not well developed on the point; (2) the state courts should

be afforded the opportunity to first consider the legality of

state officers’ conduct; and (3) the state courts should be

allowed to determine whether the rights accorded a crimi-

nal defendant should be broader under independent state

law than under federal law*, 462 U.S. at 221-222.

This case does not present a case of such “plain error” as

to warrant the unusual step of deciding an issue not raised

in the lower courts, not presented in the certiorari peti-

tion, nor urged by either party, or even amicus, see

generally, Robertson, Jurisdiction of the Supreme Court

- Consideration of the “custody” question here is particularly inap-

propriate in view of the Indiana appellate court decisions considering

the “custody” question in the context of these precise warnings and

under circumstances closely analogous to the factual circumstances

in the case at bar, see, Dickerson vy. State, 257 Ind. 562, 276 N.E.2d

S45. 847-848 (1972) (same Miranda warnings); Johnson v. State, 484

N.E.2d 49, 51 (Ind. App. 1985) (similar factual context. )

of the United States, $418, pp. 835-840 (1951); Stern,

Gressman, Shapiro, Supreme Court Practice, § 6.26, pp.

363-368 (6th ed. 1986). Generally this Court has limited its

discretion to notice a “plain error” to those unusual cir-

cumstances where the errors “seriously affect the fair-

ness, integrity, or public reputation of public

proceedings,” Connor v. Finch, 431 U.S. 407, 421, fn. 19

(1977).

A review of the decisions of the Indiana Supreme

Court, United States District Court, and Seventh Circuit

all reveal that “custody” was assumed for the purposes of

this case. This assumption is not questioned in this Court

by Petitioner. While this Court may have the discretion to

consider the question of custody, the more established

principle is to “take the case as it comes to” the Court and

review the questions decided in the state courts, decided

in the courts below, raised in the petition, and briefed by

both the parties and the Solicitor General, United States

v. Leon, 468 U.S. 897, 905 (1984). There is no occasion

presented by this case to consider whether Eagan was “in

custody” at the time of his first statement.

2. Respondent Was Clearly “In Custody” At The Time Of

His First Statement.

Miranda applies only to custodial interrogations, 384

U.S. at 444. Respondent submits that, should this Court

consider the “custody” issue, the record clearly demon-

strates that his first statement was the result of a

custodial interrogation. This Court has made clear that

the question of “custody” is objective: Was the suspect

actually in custody, Beckwith v. United States, 425 U.S.

341, 347 (1976); Oregon v. Mathiason, 429 U.S. 492, 495

(1977) (per curiam). In order to constitute “custody”, the

restraint on a suspect's freedom must be to the degree

associated with a formal arrest, .Winnesota v. Murphy,

465 U.S. 420, 430 (1984). Thus if the suspect was actually

allowed to leave following the interrogation, he was not

“in custody,” regardless of the circumstances of the inter-

view, California v. Beheler, 463 U.S. 1121 (1985) (per

curiam).

In the instant case the preprinted waiver form signed

by Respendent prior to his first statement (J.A. 133)

stated that he was not under arrest and that he could leave

the officers’ office if he wished. This boilerplate language

aside, it is apparent from the facts of this case that Eagan

was indeed “in custody” at the time of this first statement.

The Hammond police first had contact with Respondent

at the crime scene at approximately 8:00 a.m. on May 17,

1982 (J.A. 101). From that point on Respondent was with

police officers at all times until he was formally charged

with these offenses. His first statement was given at 11:14

a.m. on the 17th, while his second statement was given

the following afternoon, after Eagan had been held in

custody overnight. At the time Eagan first had contact

with the Hammond police, the authorities already knew

that the victim of the crime, when found by Chicago

police, had asked Eagan: “Why did you stab me?” (SCR

207). By this time the police were also aware of certain

discrepancies in the story Respondent originally told

them, which they believed inconsistent with established

facts (SCR 176). The Hammond police then asked Eagan

if he would come to the police station so they could obtain

a statement (J.A. 103). The officers transported Respond-

ent from the crime scene to the station (J.A. 103). Before

taking the first statement, the police discovered blood

stains on and in Respondent’s car and asked Eagan’s per-

mission to take samples (SCR 166, 228). [t was at this

point that Eagan was given the first set of warnings and

gave an exculpatory statement.

Lower courts have struggled to apply this Court's deci-

sions regarding custody in the Wiranda context, see gen-

erally, Nissman, Hagen, and Brooks, Law of

Confessions, § 4:10, pp. 98-102 (1985). After Berkemer v.

McCarthy, 468 U.S. 420 (1984), however, it is clear that

the proper question is not whether a reasonable person

would believe he was not free to leave, but whether such a

person would believe he was in police custody of the

degree associated with formal arrest. In answering this

question, courts will look to the location of the interroga-

tion, whether the suspect “was confronted by several

officers instead of just one, whether the interrogation

took place in front of the suspect’s friends or other third

parties, the degree of physical restraint placed upon the

suspect, and the duration and character of the interroga-

tion, 1 W. LaFave & J. Israel, Criminal Procedure, $6.6,

pp. 494-499 (1984) (cases collected), United States vy.

Streifel, 781 F.2d 953, 961 (1st Cir. 1986).

Applying these criteria to the instant case, we find that

the interrogation occurred at the Robertsdale police sta-

tion, after Respondent had been transported by the police

from the crime scene to the station house. The interroga-

tion was conducted by two officers, with only the

Respondent present. Additionally, and most importantly,

Eagan was actually in custody at all times after his initial

contact with the police. He was transported by the Ham-

mond police to the police station in the early morning

hours of May 17, 1982; Eagan was interrogated by police

for between two and three hours before he gave his first

statement; he was confined all day on May 17th, held

overnight, and he was confined until the late afternoon of

May 18th, at which point he was again interrogated.

Respondent submits that these facts belie any assertion

that he was not in custody when he gave the first state-

ment.

It is significant that the Indiana Supreme Court,

reviewing a statement obtained after the accused signed

exactly the same waiver as ixvol ved in this case, deter-

mined that the suspect was “in custody” for V iranda

purposes even though he hal come to the police station

voluntarily, on unrelated business, at which time the

police initiated the interrogation, Dickerson v. State, 276

N_E.2d at 847-848. A more recent Indiana decision

involved a defendant who voluntarily went to the police

station at the request of the police after he was identified

bv the victim of child molestation. He too was questioned

in a police interview room at the police station. Under

these circumstances, following Dickerson, the Indiana

Appellate Court found that the defendant was actually “in

custody” at the time of the interrogation regardless of the

voluntary nature of his arrival, Johnson v. State, 454

N.E.2d at 51.

This is consistent with the decision of the New Jersey

Superior Court (Appellate Division) in which a defendant

who voluntarily submitted to an interrogation and was

told that he was not under arrest and could terminate the

interview at any time and leave was still “in custody”

within the meaning of Miranda, State v. Micheliche, 220)

N.J. Super. 532, 533 A.2d 41, 42-45 (1987). The New

Jersey Court reasoned that regardless of what the

defendant was told, the facts of the case indicated that the

suspect was actually “in custody” and was not free to——

leave. At the time of the interrogation the police knew

that Micheliche had been implicated in the murder, Was

present at the time of the crime, and had lied about

various matters.

The result here is the same. When the police took

Eagan to the Robertsdale station they already knew that

the victim had identified him as her assailant and that his

initial statement was inconsistent with known facts. By

the time the interrogation began the police knew that

there were blood stains in and on Eagan’s automobile.

After the interrogation—even though Respondent gave

an exculpatory statement—Eagan was held in custody.

Under all of the facts, Respondent clearly was “in

custody” at the time of the initial interrogation, and the

authorities were therefore obligated to comply with the

dictates of Wiranda.

B. The Warnings Given Respondent Prior To His First

Statement Violated Viranda By Conditioning His Right

To Counsel On His Appearance In Court After Police

Interrogation.

1. Miranda Explicitly Requires That Counsel Be Pro-

vided An Indigent Suspect Or Be Properly Waived

Prior To A Custodial Interrogation.

The problem with the admonitions given to Eagan prior

to his first statement is that after the police first told him

that he had the right to counsel prior to and during the

interrogation and that he had such right even if he ould

not afford to hire an attorney, he was then told: “We have

no way of giving you a lawyer, but one wi!l be appointed

for you, if you wish, if and when you go to court.” (J.A.

134). The majority of the Seventh Circuit found the warn-

ing improper because:

The “if and when” language limits and conditions

an indigent’s right to counsel on a future event. The

warning suggests erroneously that only those

accused who can afford an attorney have the right to

have one present before answering any questions:

those who are not so fortunate must wait. This lan-

guage further implies that if the accused does not “go

to court”, i.e. the government does not file charges,

the accused is not entitled to an attorney at all.

Thus, this warning is constitutionally defective

because it denies an accused indigent a clear and

unequivocal warning of the right to appointed coun-

sel before any interrogation.

(J.A. 8).

Respondent submits that this analysis is correct and

the judgment of the Court of Appeals shouid be affirmed.

There is no ambiguity in Chief Justice Warren’s opinion

for the Court in Miranda on an indigent’s right to have

counsel present at a custodial interrogation. After delin-

eating the Fifth Amendment right to counsel established

in Miranda, the Chief Justice turned to the implementa-

tion of this right for persons who could not afford to retain

an attorney. The Court concluded that the denial of coun-

sel to an indigent person at a custodial interrogation

would be unsupportable and illogical. The Chief Justice

then considered the warnings that were to precede a

custodial interrogation of a person who could not afford a

lawyer:

In order fully to apprise a person interrogated of

the extent of his rights under this system then, it is

necessary to warn him not only that he has the right

to consult with an attorney, but also that if he is

indigent a lawyer will be appointed to represent him.

Without this additional warning, the admonition ot

the right to consult with counsel would often be

understood as meaning only that he can consult with

a lawyer if he has one or has the funds to obtain one.

The warning of a right to counsel would be hollow if

not couched in terms that would convey to the indi-

gent—the person most often subjected to interroga-

tion—the knowledge that he too has a right to have

counsel present.

384 U.S. 473 (footnote omitted).

Respondent submits that the warnings provided him

prior to his first statement did not comply with this spe-

cific directive of Miranda. The warnings informed

Respondent that he could not actually have an attorney at

the time of the interrogation, but that he had to wait until

his case came to court. If his case did not get to court; he

could not get an attorney. These warnings were not the

type of clear statement of rights anticipated by this Court

in Miranda.

Petitioner and the Government of the United States

advocate a direct and substantial repudiation of the rights

specifically established in .Viranda in favor of a rule that if

the admonitions “touch all points required by the

Miranda decision” (Amicus Brief, p. 10), the warnings are

valid regardless, apparently, of how ambiguous, inconsis-

tent, and unclear the instructions are or whether addi-

tional information is added to the warnings which

essentially negates the rights to which the suspect is

entitled. That is not what this Court required in Miranda

itself. The Court held that it was not enough to tell the

suspect that he could obtain appointed counsel when his

case went to court or that he could have a lawyer present if

he had, or could retain, one. Certainly no basis has been

shown in this record or in the briefs of counsel to warrant

reconsideration of this basic principle which has existed

for more than twenty years.

While Petitioner denigrates the judgment of the Court

of Appeals as “formalistic” and “hyper-technical” Brief for

Petitioner, at i), the fact of the matter is that in Miranda

the Court was emphatic in securing the right to pre-

interrogation counsel for indigents and requiring warn-

ings which adequately inform the suspect of this right.

Although it is true that this Court has made clear that no

precise formulation of the Miranda warnings is required,

California v. Prysock, 453 U.S. 355, 359 (1981) (per

curiam), the warnings given here are improper because

they misstate the suspect's right to counsel under

Miranda and connect the right to appointed counsel to an

event after the interrogation. For this reason the instant

admonitions were invalid, and Respondent’ first state-

ment should have been suppressed.

2. Although Lower Courts Have Disagreed On The Validity

Of The “If And When” Miranda Warnings, The Majority

Of The Courts Have Held Such Admonitions Invalid, And

Such A Result Is Clearly Required After This Court's

Decision In Prysock.

a. Prior To Prysock The Majority Of Courts Held The

“If And When” Miranda Warnings To Be Invalid.

Prior to obtaining Respondent’s first statement, the

Hammond police informed him that he had the right to

speak to a lawyer for advice before the interrogation, to

have counsel present during the questioning, and that he

had “this right to the advice and presence of a lawyer even

if [he] cannot afford to hire one.” The advice of rights

continued: “We have no way of giving vou a lawyer, but one

will be appointed, if you wish, if and when you go to

court.” Thus the primary questions in this case are

whether the latter language linked Respondent’s right to

counsel to a future event occurring after the interrogation

thus violating Wiranda, as construed by this Court in

Prysock, 453 U.S. at 560, and whether the information

imparted to Respondent regarding his right to counsel

Was sO ambiguous as to constitute a denial of that right.

This precise question has been the subject of extensive

litigation, and the courts have split on the propriety of

such warnings. The majority of courts which have consid-

ered the validity of similar Viranda warnings have found

them to be fatally defective because they condition the

suspect's right to counsel on his appearance in court and

because such warnings are ambiguous: first explaining a

present right to counsel, but then informing the suspect

that counsel can not actually be provided until a later

time. Thus the majority of state appellate courts have

found such warnings to violate Miranda, Brown vy. State.

396 3.2d 137 (Ala. App. 1981); State v. Cassell, 602 P.2d

410 (Alaska, 1979); Moore v. State, 251 Ark. 436, 472

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

Cal. Rptr. 393 (1969); Brooks v. State, 229 A.2d 833 (Del.

1979); Cribbs v. State, 378 S.2d 316 (Fla. App. 1980); State

v. Grierson, 95 Ida. 155, 504 P.2d 1204 (1972) (dictum):

State v. Carpenter, 211 Kan. 234, 505 P.2d 753 (1973):

State v. McBroom, 394 N.W.2d 806 (Minn. App. 1986);

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

Robbins, 4 N.C. App. 463, 167 S. E.2d 16 (1969): Common-

wealth v. Johnson, 484 Pa. 349, 399 A.2d 111 (1979): State

v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969),

Fewer states have found such admonitions to be valid,

State v. Mumbaugh, 107 Ariz. 589, 491 P-2d 443 (1971):

State v. Maluia, 56 Hawaii 428, 539 P.2d 1200 (1975):

People vy. Williams, 131 Ill.App.3d 149, 264 N.E.2d 901

(1970); Emler v. State, 259 Ind. 241, 286 N.E.2d 408

(1972); State v. Sterling, 377 S.2d 58 (La. 1979): People v.

Campbell, 216 Mich. App. 196, 182 N.W.2d 4 (1970), cert.

denied, 400 U.S. 945 (1971); Harrell vy. State, 357 S.2d 642

(Miss. 1978); People v. Swift, 32 A.D.2d 183, 300 N.Y.S.2d

639 (1969), cert. denied, 396 U.S. 1018 (1970): Arnold v.

State, 548 P.2d 659 (Okla. Crim. 1976); Grennier v. State.

70 Wis.2d 204, 213-215, 234 N.W.2d 316 (1975).

20)

The circuits are also split on the propriety of these

admonitions. In the Seventh Circuit, in which this case

arises, the law was settled in lwited States ex rel.

Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972),

wherein the Court of Appeals found the instruction was

“not an ‘effective and express explanation’” of the sus-

pect’s Miranda rights and was “equivocal and ambigu-

ous,” 467 F.2d at 1250. In United States ex rel. Placek v.

State of Illinois, 546 F.2d 1298 (7th Cir. 1976) the Seventh

Circuit reaffirmed Wi//iams, but upheld a warning which

stated that counsel would be “appointed through the

court” without reference to any future event which might

occur after the interrogation. The instant statement,

involving exactly the same language as in Wi//iams, was

obtained ten years after that seminal decision in the cir-

cuit.

The Second and Fourth Circuits have refused to over-

turn convictions based on substantially similar Wiranda

warnings, Massimo v. United States, 463 F.2d 1171 (2nd

Cir. 1972), cert. denied, 409 U.S. 1117 (1973); Wright v.

North Carolina, 483 F.2d 405 (4th Cir. 1973), cert. denied,

415 U.S. 936 (1974). The Fifth and Ninth Circuit have

split on the issue, both upholding and rejecting the spe-

cific language involved in this case, compare, Gilpin v.

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

States v. Lacy, 446 F.2d 511 (Sth Cir. 1971), and United

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

States v. Noa, 443 F.2d 144, 146 (9th Cir. 1971).

The Tenth Circuit, in reversing a conviction, noted:

. . we think the sentence: “we have no way of giving

you a lawyer, but one will be appointed for you, if you

wish, if and when you go to court” immediately fol-

lowing a statement of a present right to retained and

appointed counsel is likely to confuse an unsophisti-

cated mind.

Sullins v. United States, 389 F.2d 985, 988 fn. 2 (10th Cir.

1968). The prior decision relied upon by Petitioner (Brier,

pp. 12-13), Coyote v. United States, 380 F.2d 305, 307 (10th

Cir. 1967), cert. denied, 389 U.S. 992 (1967) was not deal-

ing with the same type of admonitions involved in this

appeal.

The First, Third, Sixth, Eighth®, and District of

Columbia Circuits have not dealt with the precise issue

raised in this case.

The difference of opinion between those courts which

have upheld and struck down the admonitions can be seen

by comparing the decisions of two circuits faced with

virtually the same language as the warnings involved

here. In Gilpin, Judge Wisdom reviewed the rule of

Miranda, noting that the warning must “convey to the

accused that he is entitled to a government-furnished

counsel here and now,” 415 F.2d at 639, quoting, Lathers

v. United States, 396 F.2d 524, 525 (5th Cir. 1968), The

Fifth Circuit concluded that the contested language:

. . . did not indicate that Gilpin had a right to have an

appointed counsel during the interrogation. Indeed,

a fair interpretation of the detectives statements is

that Gilpin would be given a lawyer only if he should

go to court. The defendant may have had the impres-

sion that a lawyer would be appointed only if he

pleaded not guilty. In any event, the statement con-

*The Eighth Circuit case relied upon by Petitioner, Klinger v.

United States, 409 F.2d 299 (8th Cir. 1969), cert. denied, 396 U.S. 859

(1969) did not involve a Miranda warning which conditioned the right

to counsel on some future event, /.¢., counsel would only be provided

“if and when” the suspect went to court.

>»)

veyed no notion that he was entitied to a lawyer then

and there.

415 F.2d at 640-641, (original emphasis).

The contrarv reasoning is found in the Second Circuit's

decision in Massimo, again dealing with identical warn-

ings:

_. . Massimo was clearly warned that he could have a

lawyer present during questioning. The only con-

clusion Massimo would have been justified in reach-

ing on the basis of the warning was that, since he was

clearly entitled to have a lawyer po during ques-

tioning and since no lawyer could now be provided, he

could not now be questioned.

463 F.2d at 1174 (original emphasis).

While it is certainly possible to engage in an extended

semantica! debate over the meaning of the “if and when”

warnings, “{iJt cannot seriously be maintained that the

pretzel-like warnings here—intertwining, contradictory,

and ambiguous as they are—gave | Respondent | ‘a better

understanding of his constitutional rights’ than a straight-

forward recitation of those rights would have,” Common-

wealth v. Johnson, 399 A.2d at 115, quoting,

Commonwealth v. Singleton, 439 Pa. 185, 190, 266 A.2d

753, 755 (1970). “Although there is no talismanic or heral-

dic abracadabra which must be fulfilled, the offer of coun-

sel must be clarion and firm, not one of mere impres-

sionism,” Lathers v. United States, 396 F.2d at 535.

Those courts which have found that the “if and when”

instruction adequately conveys to a suspect his right to

counsel are seriously overestimating the intellectual

sophistication and comprehension of the average individ-

ual taken into custody for questioning. All of the empirical

data on this question suggest that a high percentage of

2»

suspects who are given correct Miranda warnings do not

understand what they have been told+. If suspects have

difficulty understanding the correct warnings, how can

they be seriously expected to understand the admonitions

at issue in this case? While a judge or attorney familiar

‘One study found that more than 57% of all adults, and 79% of all

juveniles could not entirely understand the traditiona! Miranda

warnings. Significantly, the instruction /east understood by both

adults and juveniles was the right to have counsel present at the

interrogation, Grisso, Juveniles’ Capacities to Waive Miranda

Rights: An Empirical Analysis, 68 Calif.L.R. 1134, 1152 (table)

(1980). These data are discussed in greater detail in Grisso, Juveniles’

Waiver of Rights, (St. Louis, 1981), p. 74. Another study of juveniles

found that 81 of 86 of the juveniles interviewed did not consciously and

fully understand their rights, Ferguson and Douglas, A Study of

Juvenile Waiver, 7 San Diego L. R. 39, 53-54 (1970). This lack of

comprehension extended to adults examined in a Denver study in

which a group of suspects read or were read correct Miranda warn-

ings prior to the interrogation. nly 40% of the suspects interviewed

could remember both their Fiith and Sixth Amendment rights at the

time of the interview, while 21% remembered only the right to remain

silent, and 8% remembered the right to counsel. Leiken, Police

Interrogation in Colorado: the Implementation of Miranda, 47 Den-

ver L.J. 1, 14-15 (1970). In the District of Columbia 15% of eighty-tive

post--Miranda defendants failed to understand the right to silence

warning, 18% failed to understand the warning of the right to pres-

ence of counsel, and 24% failed to understand the warning of the right

to appointed counsel, Medalie, Zeitz, and Alexander, Cwstodia/

Police Interrogation in our Nation's Capital: The Attempt to Imple-

ment Miranda, 66 Mich. L. Rev. 1347, 1374 (1968). Nor is this laek of

comprehension limited to poorly educated suspects. In a study of Yale

University graduate students, interrogated by the FBI after a 1967

demonstration, only two of the twenty persons interviewed men-

tioned either Miranda or Escobedo spontaneously, and no one

seemed to know what was involved in a waiver of rights, although

each had been given the correct Miranda warnings by the FBI,

Griffith and Ayres, A Postscript to the Miranda Project: Interroga-

tion of Draft Protesters, 77 Yale L. Rev. 318 (1967).

with the requirements of .Wiranda may be able to under-

stand the meaning of the contradictory instructions given

Eagan°, the typical person subjected to a custodial inter-

rogation lacks the ability to understand clearly the right

to counsel from the instructions given".

b. This Court’s Decision In Prysock Teaches That These

Miranda Warnings Are Invalid Because They Con-

dition The Assistance Of Counsel On An Event

Occurring After The Interrogation.

In California v. Prysock, 453 U.S. 355 (1981) the

defendant was advised of his Wiranda rights but was not

specifically told of his right to have an attorney appointed

before questioning. The California Court of Appeals

reversed the conviction, relying on two earlier California

appellate decisions, People v. Bolinski, 260 Cal. App.2d

705, 67 Cal. Rptr. 347 (1968) and People v. Stewart, 267

Cal. App. 2d 366, 73 Cal. Rptr.484 (1968).

The majority of this Court found that the warnings

given Prysock were sufficiently complete to comply with

Miranda and thus reversed the judgment of the Califor-

*The American Bar Association Standards provide that “|t|he

offer [of counsel] should be made in words easily understood, and it

should be stated expressly that one who is unable to pay tor adequate

representation is entitled to have it provided without cost,” ABA,

Standards of Criminal Justice, Standard 5-7.1 (1982).

*One commentator has observed: “Would not the ordinary

accused, under the emotional stress of recent detention by the police,

be confused as to the meaning of a warning which informed him: ‘that

he was entitled to have an attorney with him during questioning and

that one could be appointed for him, but not until he went into court,

and that he could answer questions in advance of such appointment?”

Comment, Criminal Procedure: Miranda Warning and the Right to

“Instant Counsel”—A Growing Schism, 29 Okla. L.R. 957, 965-966

(1976).

nia court. In so doing the Court cited with approval the

decisions of the Ninth Circuit in United States v. Garcia,

431 F.2d 134 (9th Cir. 1970) and of the California Court of

Appeals in Bolinski. The Court found that the results in

those cases were correct because “the reference to

appointed counsel was linked to a future point in time

after police interrogation, and therefore did not fully

advise the suspect of his right to appointed counsel before

such interrogation,” 453 U.S. at 360.

In Garcia the defendant was informed that she had the

right to counsel “when she answered any questions,”

while on another occasion she was told that “she could

‘have an attorney appointed to represent [her] when [she]

first appeared before the U.S. Commissioner or the

Court.” In Bolinski an FBI agent? informed the defend-

ant that he had the right to counsel “if he was charged,”

which would be provided at no cost to him if he was unable

to afford counsel.

In Prysock this Court also approved of the reasoning of

the Ninth Circuit in United States v. Noa, 443 F.2d 144

(9th Cir. 1971) wherein the defendant was given the stan-

dard Miranda admonitions with the additional advise-

ment that if Noa could not afford counsel “one will be

appointed for you if you wish.” The Ninth Circuit upheld

these instructions, and distinguished the case from Gar-

cia, pointing out that in Garcia the right to counsel was

linked to a future event (appearance before the Commis-

sioner or court), while in Noa no such future event was

suggested, only that counsel would be appointed. In both

Garcia and Noa the Court of Appeals cited the Fifth

_ ‘The Federal Bureau_of Investigation stopped using the “if and

when” warnings sometime in 1968 or 1969, see ["nited States vy.

Cassell, 452 F.2d 533, 541, fn. 8 (7th Cir. 1971).

Circuit’s decision in Gilpin as indicative of the type of

warnings which did not comply with Miranda. The warn-

ings in Gilpin were identical to those given Eagan, see,

415 F.2d at 639.

Prysock requires that the judgment of the Seventh

Circuit be affirmed. Without question the warnings given

Eagan linked his right to counsel on his future (“if and

when”) appearance in court. To hold otherwise is te do

violence to the straight-forward meaning of the words

spoken by the officers prior to Eagan’s first statement.

Significantly, Petitioner does not even cite Prysock in his

brief, while the Amicus Brief (p. 18) attempts to draw a

distinction between those warnings which “link the

appointment of counsel to a future event occurring after

interrogation” which are not proper, and those which

“simply link the appointment of counsel to some future

event” which are valid.

A review of Prysock itself, as well as those cases cited

therein and decided thereafter, demonstrate the defect in

the warnings given Eagan was that they clearly con-

nected his ability to obtain counsel to something which

would occur after the interrogation. The exquisite distine-

tion in language suggested by the Solicitor General to

save these admonitions finds support in none of the cases

deciding this issue. Just as in Bolinski, Gareia, and

Gilpin, here Eagan was told he could not obtain the

services of an attorney until and unless he appeared in

court. Indeed, inclusion of the word “if” in the instructions

clearly means that Eagan had no right to an attorney at

the time of the interrogation, but that such right was

conditioned on his case coming to court.

Of particular interest is a post-Prysock cases dealing

with this issue, United States v. Contreras, 667 F.2d 976

-~/!

(11th Cir. 1982), cert. denied, 459 U.S. 849 (1982), Peti-

tioner contends (Petitioner's Brief, p. 13) that Contreras is

contrary to the decision of the Court of Appeals in this

case. A complete reading of the decision, however, reveals

that it supports the action of the Seventh Circuit. In

Contreras the accused was informed only that counsel

would be appointed by the court. The Eleventh Circuit

considered the impact of this Court’s decision in Prysock

on Miranda warnings which informed the defendant that

counsel would have to be appointed by the court. On page

13 of the Petitioner's Brief the State quotes some of the

Eleventh Circuit's reasoning. Immediately following the

quoted language, however, the court said:

Prysock thus stands for the proposition that a

Miranda warning is adequate if it fully informs the

accused of his right to consult with counsel prior to

questioning and does not condition the right to

appointed counsel on some future event. (emphasis

added)

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

which gives as examples of improper warnings a state-

ment that counsel would be available “if” the suspect went

to court, citing, Garcia, Gilpin, and Bolinski, 667 F.2d at

979, fn. 5. It is thus apparent that the Eleventh Circuit

would find the instant warnings to be conditional and.

thus, invalid.

Further support for Respondent's position is found in

the Minnesota Court of Appeals decision in State v.

McBroom, 394 N.W.2d 806 (Minn. App. 1986) wherein the

defendant was told of his right to have a lawyer with him

during any questioning and, if he could not afford counsel,

one would be appointed by a judge “if you appear in

court,” 594 N.W.2d at 812. Citing Prysock and Garcia,

the Minnesota Court found that the words “if you appear

in court” linked the right to counsel to some future event

after the police interrogation, and thus the warning was

not proper.

in De La Rosa v. Texas, 743 F.2d 299 (5th Cir. 1984),

cert. denied, 470 U.S. 1065 (1985) the suspect was told

that although “it will take some time” before a lawyer

would be appointed, “the court will appoint a lawyer for

you free of charge now or at any other time,” 743 F.2d at

302. The Fifth Circuit found that the language of the

warning made clear to De La Rosa that he had the right to

counsel before he said a word. The Court distinguished De

La Rosa from Gilpin where, as noted above, the instruc-

tions were identical to those in this case. In Gilpin the

right to counsel was linked to a future event, while in De

La Rosa the defendant was clearly informed of his right to

have counsel appointed prior to the interrogation.

These cases stand for the proposition® that a Miranda

warning which informs a suspect that counsel can not be

provided unless (“if”) some event occurs in the future are

invalid. Contrary to the assertion of the Solicitor General,

in Prysock this Court concluded that it is improper to tell

a suspect in custody, immediately prior to an interroga-

tion, that counsel can not be provided until he appears in

court. Moreover, the conditional right to counsel indicated

by the use of the word “if” manifestly fails to inform the

“The Solicitor General argues (Amicus Brief, pp. 9-11) that since

the warnings given the Petitioner “touched all points required by the

Virenda decision,” such admonitions were proper. As the foregoing

argument makes clear, in Prysock this Court explicitly found that

otherwise proper warnings were rendered invalid by conditioning the

right to counsel on an event which would occur after the interroga-

tion. By limiting the right to counsel in this way the warnings “did not

fully advise the suspect of his mght to appointed counsel before such

interrogation,” 455 U.S. at 560.

suspect of a right to publicly compensated counsel at the

interrogation’, prior to the appearance in court.

Respondent submits that under the clear application of

Prysock, the warnings given to Eagan before his first

statement did not comply with Miranda and were invalid.

C. Respondent Advocates Neither A Right To “Instant

Counsel” Nor “Counsel On Call”, But The Jurisdiction

Must Have Some Procedure For Complying With

Miranda.

It is entirely proper under .Viranda for a jurisdiction to

require a court to appoint counsel to represent a suspect

at a custodial interrogation. The Seventh Circuit’s deci-

sion in Placek, as well as the post-Prysock decisions of the

Eleventh and Fifth Circuits in Contreras and De La Rosa,

all are examples of cases in which the Wiranda warnings

were upheld, notwithstanding the fact that the accused

was told that counsel could only be provided by court

appointment. The preblem is not the manner in which

counsel is provided, but whether the suspect is informed

of his ability to obtain counsel at the time of the interroga-

tion.

It is not accurate to portray Respondent’s argument as

a demand for “instant counsel” as suggested by Judge

Coffey, dissenting in the Court below (J. A. 22) and by the

Solicitor General (Amicus Brief, p. 12), citing Ma yzak v.

United States, 402 F.2d 152, 155 (Sth Cir. 1968). Respond-

ent does not suggest that every police station have an

attorney “on call” to provide representation at interroga-

*The Government acknowledges that the warning given to Eagan

meant that he only had the mght to counsel if charges were filed

against him (Amicus Brief, p. 14). This warning, therefore, violates

explicit command of Wiranda as well the rule established by

rysock

tions. Each jurisdiction must decide how to implement

Miranda ina manner which meets the unique needs of the

state or community. Obviously, if counsel is requested,

there will be some delay in getting the lawyer to the

location of the interrogation, whether that be private

counsel or a publicly compensated attorney. There is no

Miranda violation when police inform the suspect that

there will be a short delay in getting counsel to the station

house, People v. Evans, 125 Il.2d 50, —_., N.E.2d —_

(1988) No. 60705 IIL. Sup. Ct. Sept. 29, 198s)

In Wisconsin, a jurisdiction with a statewide public

defender program, there are specific administrative reg-

ulations which specify a procedure for providing counsel

to an indigent at any time, whether that be a private

lawyer or a staff public defender, Wis. Admin. Code

$ SPD 2.02(2) (1984)!°, Prior to the creation of the state-

wide public defender program in Wisconsin, the local bar

association in some communities prepared lists of attor-

neys who would represent indigent suspects at the inter-

rogation stage, Milner, The Court and Local Law

Enforcement, (Beverly Hills, 1971), pp. 213-214.

Indeed, contrary to the assertion found at page 12 of

the Amicus Brief, in several jurisdictions the law enforce-

ment officer has the ability—in some cases, the obligation

—to obtain counsel for an indigent who invokes his night

in a custodial interrogation. In Florida if an indigent

suspect requests counsel, the officer “shall immediately

and effectively place said defendant in communication

with the (office of) Public Defender of the circuit in which

'’ The regulation provides: |

In any emergency situation, the representative of the state

public defender shall assign the attorney most readily available

to handle the emergency situation, whether that attorney is a

staff public defender or private attorney.

the arrest was made,” Rule 3.111(c)(2), Florida Rules of

Criminal Procedure. In Vermont state law places the

obligation on the law enforcement officer to notify the

appropriate public defender if an indigent is in custody

and does not waive counsel, Vt. Stat. Ann. tit. 13.

§ 9234(a)(2) (1988), while a Wyoming statute specifies that

“lijf the person being interrogated does not have an

attorney and wishes to have the services of an attorney, he

shall be provided the opportunity to contact the nearest

public defender,” Wyo. Stat. § 7A-6-105(a) (1987). North

Carolina has a similar statute, N.C. Gen. Stat. § 7-353(c)

(1986), placing the responsibility on the authority having

custody of a suspect to notify either the public defender or

court if the indigent requests counsel. In Alaska and

Idaho the law enforcement officers are required to notify

the public defender or court if someone is in custody who

is not represented by counsel, Alaska Stat, § 18.85.110

(a)(2); Idaho Code § 19-853(a)(2) (1987). New Mexico law

requires that the peace officer shall notify the district

public defender of any person not represented by counsel

who is in custody and is either charged with or under

suspicion of the commission of a crime, N.M. Stat. Ann.

§$31-15-12C (1978).

In the District of Columbia members of the bar volun-

teered for station-house duty to assist in assuring com-

pliance with Miranda, Medalie et al., Custodial Police

Interrogation in our Nation’s Capital: the Attempt to

Implement Miranda, 66 Mich. L. Rev. at 1380-1381. In

Denver suspects who request counsel, but have no funds

to retain an attorney, are allowed to call the public

defender, Leiken, Police Interrogation in Colorado: the

Implementation of Miranda, 47 Denver L. J. at 10. In

Chicago if an indigent suspect indicates a desire to consult

with an attorney, the police will halt the interrogation and

se)

call the public defender, see, People v. Evans, supra. The

California Supreme Court has recognized that although a

court has the authority to determine indigency and

appoint counsel, a public defender has the obligation to

provide counsel to an indigent suspect at a custodial inter-

rogation, even without the appointment of the court,

Ingram v. Justice Court tor Lake Valley Jud. Dist... 73

Cal. Rptr. 410, 447 P.2d 650, Hd (196s).

In the federal system counsel is appointed by the

Court, and pursuant to Rule 5a), Federal Rules of Crimi-

nal Procedure, that appointment may come before the

indictment or information is filed. The Criminal Justice

Act, 18 U.S.C. $3006(a)(1), explicitly provides for the

appointment of counsel prior to the fling of any pleadings,

including counsel for the purpose of representing a sus-

pect at a custodial interrogation, Jeft v. Castaneda, 57s

F.2d 842, S44 (9th Cir. 1978). In fact, the statute allows

retroactive appointment of counsel to cover any represen-

tation provided prior to court appointment, 1s U.S.C.

3 S006CD ).

None of these systems is specifically mandated by-the

Constitution!!, but each is a proper scheme to fulfill the

mandate of Wiranda?-.

‘! The A.B.A. Standards recommend that: “At the earliest uppor-

tunity a person in custody should be effectively placed in communica-

tion with a lawyer. There should be provided for this purpose access

to a telephone, the telephone number of the defender or assigned:

counsel program, and any other means necessary to establish com-

munication with a lawyer,” ABA Standards tor Criminal Justice,

Standard 5-7.1.

\2 The importance of providing legal counsel as early in the case as

possible is discussed in Guidelines tor Le gal Detense Systems in the

I nited States, (National Legal Aid and Defender Association, 1976),

(Chapter 4, pp. 48-71.

S35)

The problem in this case is not that Indiana law and

procedure require the appointment of counsel by the

court, but that Indiana apparently has no procedure for

securing counsel prior to the filing of a formal indictment

or information, see Amicus Brief. p. 14, fn. 9. Thus,

twenty-two years after the Miranda decision, the State of

Indiana has no mechanism for providing counsel if an

indigent suspect indicates his desire to consult with an

attorney before submitting to questioning. As demon-

strated above, there are many methods of complying with

Miranda, from traditional court appointment, to state-

wide public defender systems, to private bar sponsored

programs. Indiana provides none of these alternatives.

Counsel is simply not provided.

This lack of any means to comply with Miranda places

law enforcement officials in the untenable position of hav-

ing to tell suspects that although they have the right to

have an attorney present at the interrogation, there is no

way to provide such a lawyer under Indiana law. It is no

answer to say, as suggested by Amicus (Brief, pp. 12-13),

that the instant warnings are acceptable because the

police did nothing more than explain the Indiana pro-

cedure. An accurate description of a constitutionally defi-

cient procedure does not make the procedure proper.

In Indiana law enforcement officials are unable to com-

ply with Miranda by providing counsel to indigent sus-

pects during custodial interrogation. As a consequence,

the warnings afforded Eagan were fatally flawed as they

expressly denied his right to have counsel present at the

questioning and conditioned the provision of a lawyer on

an event occurring after the interrogation. The Seventh

Circuit properly directed that the first statement be sup-

pressed.

If THE COURT OF APPEALS PROPERLY REMANDED

THIS CASE TO THE DISTRICT COURT FOR DETER-

MINATION OF WHETHER THE RESPONDENT KNOW-

INGLY WAIVED HIS RIGHT TO COUNSEL PRIOR TO

THE SECOND STATEMENT.

After giving the first statement, Respondent was held

in police custody until the following afternoon. After 4:00

p.m. @n May 18, 1982—approximately 29 hours after the

first statement—Respondent confessed to hitting Ms.

Williams on the head with a brick and stabbing her.

Before giving this statement, Eagan was given a different

set of Miranda than preceded his first questioning.

The Court of Appeals remanded the case to the District

Court for determination of whether Respondent gave the

second statement after a knowing and voluntary waiver of

his constitutional rights (J.A. 9). Respondent submits

that given the meager record properly before the Court

and the inadequacies in both the first and second Miranda

warnings, the decision to remand this case for additional

findings must be affirmed.

A. Remand Is Appropriate So The District Court Can Prop-

erly Consider The Transcript Of The State Suppression

Hearing Which Is Not Now Properly Part Of The Court

Record.

A hearing on Respondent's motion to suppress his con-

fessions was held in the Superior Court of Lake County,

Indiana on November 19, 1982. The transcript of this

hearing was not prepared until five vears later, November

4, 1987 (J.A. 127), more than five months after this case

was argued in the Seventh Circuit. The transcript was

obviously never considered by either the Indiana

Supreme Court or the District Court. It was never part of

the District Court record at all. Moreover, the transcript

was never properly made part of | he record in the Court of

oe hed

ae)

Appeals. Respondent submits that under these circum-

stances the purported suppression hearing transcript

(J.A. 95-129) is not properly before this Court.

. Prior to the appearance of this transcript the only

indication in this record of the suppression hearing and its

disposition was a one sentence minute order found at page

39 of the State Court Record. That order stated: “Evi-

dence is heard and Arguments are had, and the Court

being duly advised, now denies Motions to Suppress.” It

was on the basis of this record and the evidence adduced

at trial that both the Indiana Supreme Court and the

District Court denied relief to Respondent.

Respondent was provided no notice that the record had

been supplemented by this transcript, nor was he pro-

vided a copy of the transcript until after this Court

granted certiorari. His first knowledge of the existence of

this document was when he read Judge Coffey’s dissent-

ing opinion which makes reference to such’ transcript

(JA. 10, fn. 1). The Court of Appeals issued no orders on

this matter, the Petitioner never moved to supplement the

record on appeal, and Respondent was never afforded the

opportunity to object to the supplementation of the rec-

ord with a transcript which had never been considered by

either the state appellate court or the District Court. —

Rule 10(e) of the Federal Rules of Appellate Procedure

allows the Court of Appeals to correct an omission or

misstatement in the record on appeal, but “the court of

appeals may not admit on appeal a document that is not

made part of the record in the district court,” 9 Moore's

Federal Practice, € 210.08(2), p. 10-61. In this case it is not

clear exactly how this transcript was added to the record

on appeal, if it was. Judge C offey’s footnote says that “

with the aid and urging of this court’s clerk, we have

recently been provided with the suppression hearing

transcript” (J.A. 10, fn. 1). Petitioner's Brief indicates

that this transcript was “submitted as a supplement to the

record at the Circuit Court's (sic) request,” Petitioner's

Brief, p. 15. So far as Respondent knows, the record on

appeal was never supplemented. No order was ever

issued by the Seventh Circuit supplementing the record,

and Respondent was never given notice of either the filing

or nature of the supplementation. The majority of the

Seventh Circuit pane! made no reference to this tran-

script. In fact, Chief Judge Bauer, writing for the panel,

noted the inadequacy of the record on this specific point

(J.A. 9). The Seventh Circuit has construed Rule 10(e) to

forbid the supplementation of a record on appeal with

documents “which neither were introduced into evidence

nor, in any manner, made a part of the record in the

District Court,” U'wited States ex rel. Kellogg v. McBee,

452 F.2d 134, 137 (7th Cir. 1971); Borden, Inc. v. F.T.C.,

495 F.2d 785, 788 (7th Cir. 1974), see also Stearns v.

Consolidated Management, Inc., 747 F.2d 1105, 1116, fn.

1, (7th Cir. 1984) (Coffey, J., dissenting). Respondent

submits that this document was never part of the original

record on appeal and was never properly made part of the

record. It should not be considered here!”.

2 In Dickerson v. Alabama, 667 F.2d 1364, 1367 (11th Cir. 1982),

cert. denied, 459 U.S. 878 (1982) the Court of Appeals in a § 2254

habeas corpus case did consider a portion of the state emminal court

record which was not before the district court. Dickerson arises in a

very different factual setting than does this case. In Dickerson the

state objected to the Eleventh Circuit considering a portion of the

state trial transcript which the attorney for the state had failed to

make part of the record in the district court. The attorney for the

prisoner relied on the missing transcript in his brief on appeal. The

missing transcript had been before the state appellate court when

reviewing Dickerson’s conviction, and the Court of Appeals issued a

This Court made clear long ago that an appellate court

“ean act on no evidence which was not before the court

below, or receive any paper that was not used” in the lower

court, Boone v. Chiles, 35 U.S. (10 Pet.) 177, 208 (1836).

This concept is embodied in Rule 10(e), F.R.A.P. which

allows supplementation of the record on appeal, but “does

not grant a license to build a new record,” Anthony v.

United States, 667 F.2d 870, 875 (10th Cir. 1981), cert.

denied, 457 U.S. 1133 (1982). Under Rule 10(e) it is

improper to allow a party to supplement the record of the

district court with documents never considered in the

trial court, Fassett v. Delta Kappa Epsilon (New York),

807 F.2d 1150, 1165 (3rd Cir. 1986), cert. denied, 107 S.Ct.

2463, 95 L. Ed.2d 872 (1987); Karmun v. Commissioner of

Internal Revenue, 749 F.2d 567, 570 (9th Cir. 1984), cert.

denied, 474 U.S. 819 (19835).

The apparent availability of the suppression hearing

transcript is further basis to affirm the judgment of the

Court of Appeals remanding this case to the Distr ct

Court for a determination “of whether the defendant

knowingly and intelligently waived his right to the pres-

ence of an attorney during the second interrogation” (J. A.

9). The District Court is required to consider all of the

facts and circumstances surrounding the confession to

ascertain whether the waiver of rights was knowing and

voluntary, Edwards v. Arizona, 451 U.S. 477, 482 (1981).

This newly available transcript should be considered by

the District Court along with all other evidence in consid-

formal order directing the submission of the transcript. Most impor-

tantly, in Dickerson the issue considered by the Court of Appeals was

strictly a legal issue, while here a mixed question of law and fact is

presented, United States v. Yunis, 859 F.2d 953, 958 (D.C. Cir. 1988):

Terrovona v. Kincheloe, 852 F.2d 424, 428 (9th Cir. 1988).

ering whether Eagan properly understood and waived his

right to counsel before the second statement.

B. The Warnings Given Respondent Prior To His Second

Statement Were Themselves Defective.

The warnings provided Respondent prior to the second

statement did not inform him of his right to have publicly

compensated counsel with him during the interrogation.

Although Respondent recognizes that in Prysock this

Court held that warnings which failed to inform the sus-

pect of his right to the services of a free attorney before

and during questioning were nevertheless adequate to

comply with Miranda, the admonitions prior to Respond-

ent’s second statement deviated substantially from those

approved in Prysock and are so ambiguous and disjointed

as to fail to convey to Respondent a proper understanding

of his Miranda rights.

The second Miranda warnings provided Respondent

were divided into five paragraphs (J.A. 141-142):

1. Before making this statement, I was advised

that I have the right to remain silent and that any-

thing I might say may or will be used against me ina

court of law.

2. That I have the right to consult with an attorney

of my own choice before saying anything, and that an

attorney may be present while [ am making any

statement or throughout the course of any con-

versation with any police officer if | so choose.

3. That I can stop and request an attorney at any

time during the course of the taking of any statement

or during the course of any such conversation.

4. That in the course of any conversation I can

refuse to answer any further questions and remain

silent, thereby terminating the conversation.

6. That if I cannot hire an attorney, one will be

provided for me.

Respondent submits that the juxtaposition of the words

“of my own choice” with information about the right to an

attorney in paragraph two garbles the warnings to such a

degree as to violate Wiranda'4. Moreover, the structure

of these warnings obfuscates Respondent's right to a free

lawyer during the interrogation. Paragraphs two and

three of the warnings deal with the right to counsel at the

interrogation. Not only do these paragraphs not inform

the suspect of his right to a publicly compensated attorney

during the questioning, the statement that the individual

has the right to an attorney of his “own choice” clearly

suggests that he would have to obtain his own attorney for

the interrogation and one would not be provided. Para-

graph four describes the right to discontinue the inter-

rogation, with no mention of the right to counsel. The only

advise regarding a free attorney is found in the fifth

paragraph. This information makes no reference to the

provision of counsel during the interrogation, but simply

says “if I cannot hire an attorney, one will be provided for

me.

Respondent acknowledges that both the Indiana

Supreme Court and the United States Court of Appeals

'4 Unlike the “if and when” Miranda warnings which have been the

subject of extensive litigation in all parts of the country, the second

set of warnings appear to be unique to Lake County, Indiana, see,

Richardson v. Duckworth, 834 F.2d 1366 (7th Cir 1987); Masrwell y.

State, 408 N.E.2d 158 (Ind. App. 1980); Jefferson v. State. 399

N.E.2d 816 (Ind. App. 1980); Robinson vy, State, 272 Ind. 312. 397

N.E.2d 956 (1979); Gutierrez v. State, 270 Ind. 639. 388 N.E.2d 520

(1979); Grimes vy. State, 170 Ind. App. 525, 353 N.E.2d 500 (1976);

Sotelo v. State, 264 Ind. 298, 342 N.E.2d 844 (1976): Holguin vy. State,

256 Ind. 371, 269 N.E.2d 159 (1971),

for the Seventh Circuit have upheld these specific warn-

ings, Robinson vy. State, supra., Richardson v. Duck-

worth, supra. Nevertheless he submits that even without

reference to the earlier warnings, the second admonitions

failed to comply with Miranda. In Sotelo v. State, Justice

DeBruler, concurring, found that the Lake County warn-

ings “do not clearly tell the person about to be questioned

that if he has no money to hire a lawyer, one would be

provided for him prior to any questioning,” 342 N.E.2d at

851 (DeBruler, J., concurring). Adopting the reasoning of

Sotelo’s counsel, Justice DeBruler explained why the for-

mat of these warnings results in the failure to inform a

suspect of the right to free counsel at the interrogation:

Part of this deliberately calculated effect was

achieved by adding the words “attorney of your own

choice” to the first part of the advisement form. This

would mean to many that they could have an attorney

of their own choice to consult with them before they

made a statement, just as it reads on the Lake

County Waiver Form, but that this only applies to an

attorney of their own choice, assuming they could

afford one.

Justice DeBruler then noted that the information about

the right to have an attorney provided is separated from

the right to counsel at the interrogation by two para-

graphs which would “naturally lead a person to believe

that he may have an attorney appointed for him some time

in the future, and not prior to the interrogation,” id.

Respondent asserts that the second warnings are

defective on their face and his second statement should

have been suppressed for this reason. At the very least,

the defect in the second admonitions is sufficient to

require the District Court to determine whether Eagan

actually understood and knowingly waived his right to

counsel prior to making the incriminating statement.

C. Notwithstanding This Court's Decision In Elstad,

Respondent's Confession Was Not Admissible.

1. The Second Statement Is Not Admissible Because

The Second Miranda Warnings Were Not “Careful

And Thorough” As Required In E/stad.

In Oregon v. Elstad, 470 U.S. 298 (1985) the Court held

that a statement obtained after “a careful and thorough

administration of Miranda warnings” (470 U.S. at

310-31 1) was admissible, notwithstanding the fact that an

earlier statement was obtained by the police without

administration of Miranda warnings. In this case both

Petitioner and Amicus argue that under E/stad the sec-

ond statement given by Respondent was admissible, even

if the initial statement was properly excluded because of

the defect in the first set of admonitions. Respondent

submits that E/stad can not save the second statement.

Underlying this Court’s decision in E'/stad was the

uncontested fact that Elstad was given entirely correct

Miranda warnings before providing the second state-

ment. Thus much of Justice O’Connor’s opinion for the

Court dealt with the question of whether the second

statement was somehow compelled by the first, non-

Mirandized, statement. The majority of the Court found

that the second statement was untainted and thus

admissible.

In so doing, the Court emphasized that the warnings

ultimately given to Elstad were “careful and thorough”

(470 U.S. at 310), “undeniably complete” (470 U.S. at

314), and “clear and comprehensive” (470 U.S. at 315, fn.

4). It is apparent from the repeated emphasis on the scope

and nature of the warnings given to Elstad before his

second statement that the content of the warnings was

important in deciding that the second statement was vol-

untary and not tainted by the first confession. This is

because “[t)he warning conveys the relevant information

and thereafter the suspect's choice whether to exercise

his privilege to remain silent should ordinarily be viewed

as an ‘act of free will,’” 470 U.S. at 311, quoting, Wong

Sun v. United States, 371 U.S. 471, 486 (1963).

In the instant case the second .Viranda warnings were

anything but careful, thorough, complete, clear or com-

prehensive. The warnings were garbled, ambiguous, and

unclear on the critical question of Respondent’s right to

free counsel at the time of his interrogation. While in

E/stad the Court had no difficulty in finding the second

statement admissible, following an 'nderstanding waiver

of constitutional rights, no such conclusion can be reached

in this case.

In neither the first nor second warnings was Eagan

ever informed of his right to provided counsel at the

interrogation. In the first warnings he was affirmatively

told that the night to free counsel attached only when his

case went to court. The second warnings, while not specif-

ically saying that Respondent could only obtain counsel

after the interrogation, were so structured as to obscure

his right to free counsel before and during the question-

ing. The rule of E/stad is that once a defendant has given a

statement which violates Miranda a subsequent con-

fession may be admitted if the suspect “has been given the

requisite Miranda warnings” 470 U.S. at 318. Here

Eagan was not given the type of warnings referred to in

E/stad, and as a consequence his second statement is not

admissible.

2. The Combination Of The Two Sets Of Wiranda Warn-

ings Warrants At Least A Remand To The District

Court, If Not Outright Vacation Of Respondent's

Conviction.

Within a 29 hour period Respondent was given two sets

of Miranda warnings by the Hammond police. The first

set of warnings indicated that counsel could not be pro-

vided until after the interrogation, while the second

warnings failed to inform Eagan that he had the right to

free counsel prior to and during the interrogation.

Respondent submits that the combined effect of the two

sets of warnings was to fail to provide him a clear state-

ment of his right to an attorney, supplied by the state,

before and during the questioning.

The case is similar to, but stronger than, Gilpin v.

United States, supra. In Gilpin the defendant gave sev-

eral statements. The first was preceded by exactly the

same warnings as were provided Eagan before his initial

statement. The result was suppression of the first state-

ment. Gilpin was subsequently given “adequate Miranda

warnings” (415 F.2d at 641) before his second confession.

Nevertheless, the Fifth Circuit found that the second

statement was not admissible because the second set of

warnings were “given in a perfunctory manner without

the slightest hint that it contained any information dif-

ferent from the one preceding it,” 415 F.2d at 642. In the

instant appeal, the second set of Miranda warnings was

not “adequate”. In fact, the second warnings were

incomplete in the same area the first warnings were incor-

rect—the right to free counsel before and during the

interrogation. In the first set of warnings Respondent's

right to counsel was misstated, and, as noted by the Court

of Appea's, “(t]he second warning did not explicitly cor-

rect this misinformation” (J.A. 9). Thus while the defend-

ant in Gilpin was ultimately given warnings which

informed him of the right to counsel at the interrogation,

such warnings were never provided Eagan.

I n Elstad the defendant first gave a statement without

being informed to his Miranda righis. Later that same

day, after a complete set of warnings, he gave a statement

which this Court found admissible. In this case what the

police did was worse than had they given Eagan no warn-

ings at all before his first statement. The initial admoni-

tions materially misstated his right to counsel, and this

misstatement was never corrected. Before the second

statement could be admissible, the police at least had to

correct the information given the day before that counsel

could be provided only if and when his case came to court.

Had Eagan been given the standard Miranda warnings

before his second statement, this would be a closer case.

Neither of the warnings given Eagan were standard, both

deviated from the traditional admonitions and substan-

tially misstated Eagan’s right to counsel. Contrary to the

assertion of the Petitioner and Amicus, Respondent was

never given the “fully effective equivalent” of correct and

complete warnings, Miranda, 384 U.S. at 476. Given the

fact that the two statements come but one day apart, the

police were obligated under these facts, at a minimum, to

fully comply with Miranda and inform Eagan that he had

the right to free counsel at the interrogation. They never

did that.

The only relief granted by the Seventh Circuit was to

remand the case to the District Court to determine

whether, given the two warnings, Eagan understood his

right to counsel and knowingly and intelligently waived

his constitutional right to have counsel before and during

the interrogation. On the facts here, given the lack of a

state court record, given that neither set of warnings was

complete, given that Respondent was never informed of

his right to have an attorney provided at the interroga-

tion, and given the obligation of the court to consider all of

the facts and circumstances surrounding the confession,

the relief granted by the court below was quite modest.

Respondent urges the Court to affirm that action.

CONCLUSION

For the reasons set forth herein, Respondent

respectfully prays that the judgment of the United States

Court of Appeals for the Seventh Circuit be affirmed.

”

Respectfully submitted,

Howarb B. EISENBERG

Appointed by this Court

104 Lesar Law Building

Southern [Illinois University

Carbondaie, Illinois 62901

(618) 536-4423

Attorney For Respondent

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