Petitioners Brief — Moran v. Burbine

( 5) os Sian Court, U.g,

No. 84-1485 LED

SHE 1 1985

In The

Supreme Court of the United

October Term, 1984

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Uv

JOHN MORAN,

Petitioner,

vs.

BRIAN K. BURBINE,

Respondent.

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ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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BRIEF OF PETITIONER

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ARLENE VIOLET

Attorney General of the

State of Rhode Island

Constance L. MessorE

Special Assistant

Attorney General

72 Pine Street

Providence, Rhode Island 02903

(401) 274-4400

Attorneys for the Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

"BEST AVAILABLE COPY §

wt:

QUESTION PRESENTED

Does the self-incrimination clause of the Fifth Amend-

ment require the suppression of three confessions, each

made after proper Miranda warnings and three valid waiv-

ers of rights, solely because an attorney, unrequested by

the defendant, was given misleading information by a po-

lice officer that there would be no further interrogation

of the defendant that night and the defendant was not in-

formed of the attorney’s telephone call?

ii

TABLE OF CONTENTS

Pages

QUESTION PRESENTED rs i

TABLE OF AUTHORITIES iv

CITATIONS TO OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED ~. 2

STATEMENT OF THE CASE — 3

SUMMARY OF ARGUMENT 11

ARGUMENT:

INTRODUCTION ——— 12

I. THE FIFTH AMENDMENT PRIVILEGE

AGAINST SELF-INCRIMINATION IS A

PERSONAL RIGHT OF THE INDIVID-

UAT AND IS SUBJECT TO WATVER

ONLY BY THAT INDIVIDUAL. 13

Tl. THE WATVER OF THE FIFTH AMEND-

MENT PRIVILEGE AGAINST SELF-IN-

CRIMINATION MUST BE MADE KNOW-

INGLY AND VOLUNTARILY AND A

HEAVY BURDEN RESTS ON THE GOV-

ERNMENT TO PROVE SUCH. — 17

Il. THREE COURTS, INCLUDING THE

STATE TRIAL COURT, THE STATE SU-

PREME COURT AND THE FEDERAL

DISTRICT HELD THAT THE PROSECU-

TION SUCCESSFULLY SUSTAINED THE

WEIGHTY BURDEN OF PROVING THAT

THE RESPONDENT’S WATVERS WERE

MADE KNOWINGLY, VOLUNTARILY

‘ND INTELLIGENTLY WITHOUT THE

ADVICE OF AN seanes bummed ATTOR-

NEY. . eshidaineciaahsittindenubabinaseninisnes . 19

ili

TABLE OF CONTENTS—Continued

Pages

IV. THE FIRST CIRCUIT COURT OF AP-

PEALS FOUND THAT AN OTHERWISE

VALID WAIVER OF FIFTH AMEND-

MENT MIRANDA RIGHTS CAN BE VIT-

IATED BY THE ADDITIONAL FACTOR

OF AN INQUIRY FROM AN UNRE-

QUESTED ATTORNEY, IF THE ATTOR-

NEY IS DILIGENT, THE POLICE HAVE

ACTED RECKLESSLY IN PROVIDING

MISLEADING INFORMATION, AND THE

SUSPECT IS NOT INFORMED OF THE

TELEPHONE CALL. .................. me

V. THE FIRST CIRCUIT RULING DISRE-

GARDS THE EVIDENCE AS FOUND BY

THE LOWER COURTS AND IS NOT

BASED ON A VIOLATION OF CONSTT-

TUTIONAL STANDARDS. 0. ile hlaehamnines 25

VI. THE FIRST CIRCUIT COURT IS AS-

SUMING A SUPERVISORY ROLE OVER

THE RHODE ISLAND SUPREME COURT

INSTEAD OF ABIDING BY THE LIM-

ITED SCOPE OF REVIEW OF A WRIT

OF HABEAS CORPUS, AND HAS ESTAB-

LISHED AN ADDITIONAT, SET OF CON-

FUSING GUIDELINES FOR THE POLICE

TO FOLLOW WHEN INTERROGATING

AN INDIVIDUAL SUSPECTED OF COM-

gs

A ssialidinneiaabansdihaicnsiais 36

THE APPENDIX HERETO IS BOUND SEPARATELY

IN AC“ORDANCE WITH RULE 21.1 AND IS EN-

TITL. » BY LEAVE OF COURT APPENDIX TO PE-

TITION FOR WRIT OF CERTIORARI.

iv

TABLE OF AUTHORITIES

Pages

CASEs:

Blanks v. State, No. 41673, Ga. Sup. Ct. (June 10,

1985) 26

Brewer v. Williams, 430 U.S. 387 (1977)... 16, 21, 29, 30

Burbine v. Moran, 589 F.Supp. 1245 (D.R.I. 1984)

1, 22, 23

Burbine v. Moran, 753 F.2d 178 (1st Cir. 1985)

a a 1, 24, 25, 26, 31

Donnelly v. SaChelahaibides 416 U.S. 637 (1974) ~...... 29

Edwards v. Arizona, 451 U.S. 477 (1981) 16

Fare v. Michael C., 442 U.S. 707 (1970) 17

Fuentes v. Moran, 572 F.Supp. 1461 (1983) 23

Fuentes v. Moran, 733 F.2d 176 (1st Cir. 1984) 2 28, 29

Hance v. Zant, 696 F.2d 940 (11th Cir. 1983) 26

Johnson v. Zerbst, 304 U.S. 458 (1938) 2. salad 17

Lego v. Twomey, 404 US, 447 (1972) nna scene 19

Michigan v. Mosley, 423 U.S. 96 (1975) 16

Michigan v. Tucker, 417 U.S. 433 (1974) 16

Milton v. Wainwright, 407 U.S. 871 (1972) nee 29

Miranda v. Arizona, 384 U.S. 436 (1966) 5, passim

New York v. Quarles, 467 U.S. —, 104 S.Ct. 2626 (1984) 16

North Carolina v. Butler, 441 U.S. 369 (1979) —... 18

Oregon v. Bradshaw, 103 §8.Ct. 2830 (1983) 26

Oregon v. Elstad, 105 S.Ct. 1285 (1985) ... 16, 34

People v. Arthur, 22 N.Y.2d 325 (1968) 30

People v. Donovan, 13 N.Y.2d 148 (1963) 30

~~

TABLE OF AUTHORITIES—Continued

Pages

People v. Gunner, 15 N.Y.2d 226 (1965) 32

People v. Hobson, 39 N.Y.2da 479 (1976) 30

State v. Beck, 687 S.W.2d 155 (Mo. 1985) 95

State v. Benton, 413 A.2d 104 (R.I. 1980) 19

State v. Burbine, 430 A.2d 438 (R.T. 1981) 2

State v. Burbine, 451 A.2d 22 (R.T. 1982)... 2, 9, 22, 23, 27

State v. Killay, 430 A.2d 418 (R.T. 1981) 19

Sumner v. Mata, 455 U.S. 480 (1982) . 21, 28

United States v. Gouveia, — U.S. —, 104 S.Ct.

2202 (1964) _.__. 29

CONSTITUTIONAL PROVISIONS:

U.S. Const. Aménd. V ............. 2,10, 11, 12, 13, 16, 17, 24, 29, 34

U.S. Const. Amend. VI 10, 29

U.S. Const. Amend. XTV 10

STATUTES:

28 U.S.C. See. 1254(1) 2

MISCELLANEOUS AUTHORITY:

Y. Kamisar, Brewer v. Williams, Massiah, and Mv-

randa: What is “Interrogation’’? When does

it matter? in Police Interrogation and Confes-

sions (1980) 35

J. Choper, Y. Kamisar, L. Tribe, The Supreme

Court: Trends and Developments, 1981-1982,

Vol. TV (1983) 33

No. 84-1485

ral

VV

In The

Supreme Court of the United States

October Term, 1984

ra

Vv

JOHN MORAN,

Petitioner,

vs.

BRIAN K. BURBINE,

Respondent.

ry.

Vv

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Vw

BRIEF OF PETITIONER

ne

_

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of Appeals

for the First Circuit which granted Respondent’s petition

for a writ of habeas corpus is reported sub nom Burbine

v. Moran at 753 F.2d 178 (1st Cir. 1985) and is reprinted

at App. 1-22 in the Petitioner’s Appendix to Petition for

Writ of Certiorari. The Opinion of the United States Dis-

trict Court for the District of Rhode Island which denied

Respondent’s petition for a writ of habeas corpus is re-

ported sub nom. Burbine v. Moran at 589 F. Supp. 1245

l

2

(D.R.I., 1984) and is reprinted at App. 23-43 in the Peti-

tioner’s Appendix To Petition for Writ of Certiorari. The

Opinion of the Rhode Island Supreme Court initially deny-

ing Resporident’s direct appeal of his conviction in state

court is reported sub nom. State v. Burbine, at 430 A.2d

438 (R.1T. 1981) and is reprinted at App. 44 in the Petition-

er’s Appendix To Petition for Writ of Certiorari. The

Opinion of the Rhode Island Supreme Court’s denial of

Respondent’s direct appeal after reargumert is reported

sub nom State v. Burbine at 451 A.2d 22 (R.I. 1982) and

appears at App. 45-91 in the Petitioner’s Appendix To

Petition for Writ of Certiorari.

fay

_—

STATEMENT OF JURISDICTION

The order of the United States Court of Appeals for

the First Cireuit granting the Respondent’s petition for

a writ of habeas corpus was entered on January 25, 1985,

(Pet. App. 92) and its mandate entered on February 19,

1985. {Pet. App. 93) The Petition for a Writ of Certiorari

was filed on March 19, 1985, and the Petition for a Writ

was granted on May 13, 1985. The jurisdiction of this

Court is invoked under 28 U.S.C. see. 1254 (1).

— _ =

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment V

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

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces or in the Militia, when in actual serv-

3

ice in time of War or public danger; nor shall any persor.

be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due precess of law; nor shall

private property be taken for public use, without just com-

pensation.

-_ *

——

STATEMENT OF THE CASE

Brian Burbine (the Respondent herein) was indicted

for the crime of murder as the result of the death of a

woman named Mary Jo Hickey. (T. 13-14)' Mary Jo

Hickey was found unconscious in a factory parking lot in

Providence, Rhode Island on the morning of March 3,

1977. (T. 22) Her stockings and panties were pulled down

around her ankles and her coat was pulled up over her

waist. (T. 43) There was blood on her face, pair of

dentures and a pool of blood-like substance on the ground.

(T. 45) There was also in the area of her hips a small

puddie of a white milky substance (T. 47) later identified

as seminal fluid. (T. 149-150) Still showing signs of life,

although suffering from injuries to her skull and brain

resulting from bludgeon wounds inflicted by a 914 foot

metal pipe found near the scene of the attack, she was

taken by rescue squad to the hospital. (T. 58, 59, 62-64)

Approximately three weeks later, on March 25, 1977, she

died. (T. 129)

' The transcripts which are part of the record are designated

as follows: Suppression Hearing; February 15, 16, 19, 20, 1979,

as “S.H.”; Trial Transcript, Volume I, February 21, 22, 23, 27,

1979 and Volume Il, February 20 and March 1, 2, 1979 as “T.”

4

On March 4, 1977, Brian Burbine left Rhode Island

to visit his friends, Nancy Jean Sanders James and her

brother, Donald Sparks, at their home in Maine. He told

them he had gotten into some trouble and wanted to get

out of Rhode Island for awhile. (T. 174-175, 300) After

a few weeks had passed, Burbine told Naney James that

he had met Mary Jo Hickey in a bar in Providence on the

evening of March 2, 1977. Mary Jo had bought him some

drinks and then asked for a ride home. Burbine further

stated that on the way to her house, he pulled into a park-

ing lot and made advances to Marv. When the advances

were resisted, Burbine slapped her “a time or two’’ and

threw her out of the ear. This had all happened hefore

he came to Maine. (T. 176-177) Burbine told substan-

tially the same story to Donald Sparks but added that

there was some blood on Mary. as a result of his striking

her (T. 302) and that he had used Lysol and Ammonia to

wash blood from the interior of his automobile the next

morning. (T. 303) While in Maine Burbine called his

mother every day and one day after he called home he

said he was going home “to straighten it out’’. (T. 183-184)

A few months later, at about 3:30 p.m. June 29, 1977,

police in Cranston, Rhode Island, arrested and charged

three men in connection with a breaking and entering.

(T. 188) Burbine was one of them and Donald Sparks was

another. The third man was named DiOrio. For pur-

poses of interrogation, they were placed in separate rooms

in the detective’s division in the basement of the Cranston

police headquarters. It was learned that DiOrio and Bur-

bine lived at 306 New York Avenue. (T. 188) When De-

tective Ferranti of the Cranston Police was informed of

this fact. he recalled that he had been told two days ear-

4)

lier by a confidential informant that a man named “Butch”’

living at 306 New York Avenue was responsible for the

death of Mary Jo Hickey. (T. 188) Between 5:00 and 6:00

p.m. Ferrenti learned from DiOrio that Burbine was the

only “Butch’’ living at that address. (T. 189) Detective

Ferranti then went to the room where Burbine was being

held. Ferranti informed Burbine of his Miranda rights,

but at this point Burbine refused to sign a waiver of rights

form and refused to say anything further. However, he

did respond that he was the only person called “Butch”?

who resided at 306 New York Avenue. (T. 190)

At about 6:00 p.m., after obtaining from DiOrio and

Sparks statements implicating Burbine in the killing of

Mary Jo Hickey, Ferranti, cognizant that Mary Jo’s mur-

der had occurred in Providence, not Cranston, called the

Providence Police to convey whi! he had discovered. At

approximately 7:00 p.m., three officers of the Providence

Police. Detectives Bernard Gannon and Edward Trafford

and their supervisor, Captain Wilson, arrived at the Cran-

ston Police headquarters and went to the detective division

for the purpose of questioning Burbine about the killing

of Mary Jo. They spoke first with Detective Ferranti and

then questioned Sparks and DiOrio. (T. 191-192)

At approximately 7:45 p.m. Burbine’s sister called

the Office of the Public Defender (without her brother’s

knowledge), to seek legal assistance for him. (S.H. 72)

Her sole concern was the break-in, as at that time she had

no knowledge that he was a suspect in Mary Jo’s death.

She asked for Assistant Public Defender Richard Caspar-

ian, who had previously represented her brother in an-

othe: criminal matter not related to the instant reason

for his police custody. In fact, Burbine had missed an

6

appointment with Casparian the afternoon of his arrest.

As soon as Burbine’s sister hung up, the person who hap-

pened to be working late and had taken the call tried to

reach Casparian. Once it was determined that he was un-

available, Allegra Munson, another Assistant Public De-

fender, was contacted and informed of the situation. (S.H.

71-75)

At approximately 8:15 p.m. Munson called the Cran-

ston police station (S.H. 244) and asked that her call be

transferred to the detective division. (S.H. 249) A male

voice responded with the word “Detectives’’. (S.H. 250)

Munson identified herself and asked if Brian Burbine was

being held (T. 555); the person responded affirmatively.

(S.H. 250) Ms. Munson explained to the person that Bur-

bine was represented by Attorney Casparian who was not

available; she further stated that she would “make her-

self available’’ in the event that the police intended to

place him in a lineup or question him. (S.H. 251, 254) Mun-

son did not ask to speak with Burbine (T. 560), nor did

she inquire as to why he was in custody. (S.H. 256, T. 559)

She did not mention the homicide investigation which she

was unaware of at that tii... The nnidentified person told

Munson that the police would not be questioning Burbine

or putting him in a lineup and that “we’re through with

him for the night.’’ (S.H. 244, 251) He indicated that

Burbine would be brought to court the following morning

for arraignment on the breaking and entering charge.

(S.H. 258) Ms. Munson was not informed that the Provi-

dence police were at the Cranston police station or that

Burbine was a suspect in Mary Jo’s murder. (S.H. 261)

She did not ask for the name of the person with whom she

was speaking, although she assumed he was a detective

7

(T. 564) and she did not ask the officer who answered

the telephone to give any message to Burbine, (T. 560)

nor did she give the police officers any instructions or

requests concerning Burbine. (S.H. 257-258) As she did

not know Brian Burbine and he would have no way of

knowing who she was, (T. 560) Ms. Munsen did not “think

it was appropriate to give information to a client on the

telephone when they didnt know you and you didn’t know

them’. (T. 560) Munson also did not give the officer any

information as to where she could be reached if anything

changed during the evening or ask if he was the detective

in charge of the partienlar case. (S.H. 258)

The next morning Ms. Munson prepared a memoran-

dum of her telephone eall (S.H. 253) but apparently no

further attempt was made to assist Burbine. (S.H. 259)

A public defender did not appeer at the Providence police

station until summoned by the Providence police at noon-

time June 30, 1977, although Burbine still stated he did

not «ish an attorney, (T. 487) because Burbine was to be

placed in a lineup and it was police policy to obtain an at-

torney at such time. (T. 481-482)

oa

Who at the headquarters was speaking to Ms. Munson

has never been determined: Ms. Munson had neglected

to ask his identity and all of the officers questioned in

eourt concerning the incident denied receiving or know-

ing about the call. It should be noted that there is no evi-

dence to indicate that the Providence Police (or Ferranti

for that matter) were made aware of Munson’s call until

long after Burbine had given his statements. Burbine was

never aware of a telephone call from an attorney inquiring

about him. (S.H. 216) He was never told of Munson’s

eall, her offer of assistance, or the information that was

given her.

8

At approximately 9:00 p.m., Burbine was brought to

the main room in the detective division where Ferranti

and his immediate superior, Lieutenant Ricard, and the

three Providence officers had gathered. (T. 4388-439) After

being advised of his rights, he was asked about the Hickey

killing and, appearing “fidgety’’, denied involvement. (S.

H. 153) He was then returned to the smaller room. (S.H.

153) About ten minutes later, Ferranti heard repeated

banging on the door of the room and went to speak with

Burbine. (S.H. 154) He was crying and said he was “‘dis-

gusted’’; “soiry’’; and wanted to confess. (S.H. 154)

Ferranti went to get two of the Providence officers, De-

tective Gannon and Trafford, and the three of them brought

Burbine to the main roon. to take a statement. (S.H. 155

The detectives then read Burbine his Miranda rights, as-

certained that he understood what his Miranda rights

were, and at about 9:30 p.m. obtained his signature on a

waiver of rights form. (S.H. 155-159) (Pet. App. G.)

He was later described as having been “shaky at times”’,

but as having spoken clearly. (S.H. 157) For the next

fifty minutes, Detective Gannon conducted the interroga-

tion, typing his questions and Burbine’s answers. At 10:20

p.m., Burbine signed a typed four-page ineulpatory state-

ment and Detective Ferranti “notarized’”’ it. (S.H. 159)

(Pet. App. H)

Burbine was then returned to the smaller room, where

there was a phone available to him and given food. (S.TI.

23, 85, 160) Sometime between approximately 10:45 p.m.

and 11:00 p.m., he said he had omitted some information

and was returned to the main room. (S.H. 160) Ue was

again read his Miranda rights, signed the waiver form,

(S.H. 161) (Pet. App. I), and gave a second statement.

(S.H. 163) (Pet. App. J) This one was signed at 11:20 p.m.

9

Finally, at approximately noon the following day,

June 30, 1977, following his presentation to the District

Court on the breaking and entering charge, Burbine was

taken to the Providence Police Headquarters, where he

again was given his Miranda rights and signed a waiver

form. (Pet. App. K) Burbine then gave a third ineulpa-

tory statement, this time to Detective Trafford. (Pet.

App. L) (S.H. 89-96) After this third confession had been

obtained, at the request of Trafford, Major John Leyden

ealled the office of the Publie Defender to obtain the pres-

ence of an attorney, Burbine still declining to request one,

for an identification lineup that was to follow. (S.H. 95)

Later that day, Assistant Public Defender Casparian came

to the Providence headquarters and assisted Burbine dur-

ing the lineup.( S.H. 191)

At the subsequent hearing on Burbine’s motion to

suppress his three written statements, the Superior Court

found that Ms. Munson did make the phone call, as de-

scribed above, but also “that there was no collusion or con-

spiracy on the part of the police ‘to secrete [Burbine]

from his attorney ...’’’ State v. Burbine, 451 A.2d at 24.

(Pet. App. 114) It also found that Burbine was not threat-

ened, coerced, or promised any benefits in exchange for

his three statements and that Burbine had “knowingly, in-

telligently and voluntarily waived”’ his right to counsel

and his privilege against self-inerimination. Id. at 24. (Pet.

App. 116)

In accordance with these findings, the court denied

Burbine’s motion to suppress. (Pet. App. 117) Burbine

was subsequently convicted of first degree murder on the

basis of his three statements and the testimony of Nancy

James, Donald Sparks, and other witnesses.

10

Burbine appealed the denial of his suppression mo-

tion to the Supreme Court of Rhode Island, which affirmed

the lower courts decision. (Pet. App. 44, 45) Burbine then

petitioned the United States District Court of Rhode Is-

land for a writ of habeas corpus, alleging Fifth, Sixth,

and Fourteenth Amendment violations. The District Court

reviewed the record of the State proceedings and denied

the habeas corpus petition in an order and opinion dated

June 7, 1984 by United States District Judge Bruce Selya.

(Pet. App. 23)

Burbine filed a notice of appeal from the District

Court’s order denying his petition on June 21, 1984, and

a certificate of probable cause was granted by the District

Court.

Burbine alleged in his appeal before the United States

Court of Appeals for the First Circuit that his Fifth, Sixth,

and Fourteenth Amendment rights were violated by the

failure of police to communicate to his attorney their plans

to interrogate him and their failure to tell him that an

attorney acting for him at the request of his sister had

called to offer her services. That court did not reach Bur-

bine’s Sixth and Fourteenth Amendment claims but re-

versed the district court’s denial of the petition for the

writ of habeas corpus on the ground that the failure of

the police to communicate to Burbine that an attorney Lad

called offering assistance and the misleading advice given

to the attorney, violated Burbine’s Fifth Amendment right

to counsel and his privilege against self-incrimination and

held that all three of the inculpatory statements that he

made while in custody should have been suppressed. (Pet.

App. 21)

11

Burbine is presently serving his sentence at the Rhode

Island Adult Correctional Institution in Cranston, Rhode

Island and will be eligible for parole in July, 1987.

The sole issue in this case is whether or not the court

of appeals erred in ruling that Burbine was denied his

right to counsel and privilege against self-incrimination,

guaranteed by the Fifth Amendment to the United States

Constitution.

ray

VF

SUMMARY OF ARGUMENT

The decision in Miranda v. Arizona, 384 U.S. 436 (1966)

provides a set of police guidelines to assure that a crim-

inal suspect’s right under the Fifth Amendment to the

United States Constitution that he shall not be compelled

to be a witness against himself is protected. These rules

provide a number of personal “rights’’, including the right

to counsel and right to silence, which may be waived only

by the suspect. If the suspect, after being properly in-

formed of his rights, then waives any of these rights, a

heavy burden rests on the government to prove that the

suspect did so knowingly, intelligently and voluntarily. In

analyzing the validity of a waiver of rights, the Court will

consider all of the facts in the case, and review the totality

of the circumstances surrounding the waiver. Predom-

inantly these facts fall into two classes: (1) the personal

characteristics of the suspect as they bear upon his abil-

ity to make an effective waiver, and (2) the conduct of the

police in eliciting the waiver. If the Court, after consid-

ering such facts, finds a valid waiver, the additional factor

of the appearance of an unrequester attorney, who may

inquire concerning the suspect; be given misleading advice

12

by the police concerning his situation; which information is

not transmitted to the suspect; should not affect the sus-

pect’s ability to knowingly and intelligently waive his

Miranda rights. In deciding that these factors can affect

a suspect’s ability to make a knowing waiver of his rights,

the First Cireuit has not only ignored the factual findings

made by the preceding courts in this case, but has in ef-

fect denigrated the suspect to a nonperson whose will is

subject to his attorney’s control.

In addition, the First Circuit has taken upon itself to

supervise police performance by establishing its own guide-

lines for police to follow when approached by a sus-

pect’s attorney. This is clearly not the appropriate role

of the First Circuit in reviewing a petition for writ of

habeas corpus.

—

So

ARGUMENT

INTRODUCTION

At issue in this case is whether, after properly waiv-

ing his Fifth Amendment rights on three occasions and

giving three confessions to the police, the respondent,

Brian Burbine, can later claim that because an attorney,

whom he did not request, had called the police station;

be n told by an unidentified police officer that Burbine

was not going to be further questioned that night ;

and Burbine had not been informed of this call, that

his waivers were not made voluntarily and knowingly.

Although the trial judge, the jury, the Supreme Court

of the State of Rhode Island, and the Federal District

Court for the District of Rhode Island all found Burbine’s

confessions were voluntary and made following intelligent

13

waivers of the right to counsel and right to remain silent,

the First Cireuit Court of Appeals held that the added

factor of the telephone call to the police station, wherein

the attorney was given misleading information and of

which Burbine was not informed, was more than just one

factor in the caleulus of waiver and clearly vitiated any

claim that Burbine’s waiver of counsel was knowing and

voluntary.

The Petitioner challenges the decision of the First

Cireuit Court arguing that the Fifth Amendment to the

United States Constitution and the prophylactic Miranda

rights are personal rights of the suspect and ean be waived

by him knowingly, intelligently and voluntarily without

the advice or presence of counsel. Moreover, the facts

of this case substantiate the findings of the State and Fed-

eral District Court to this effect, whereas the decision of

the First Circuit Court is unsupported by the evidence;

is clearly an effort to exercise case by case supervision of

police performance, and requires reversal.

I. THE FIFTH AMENDMENT PRIVILEGE

AGAINST SELF-INCRIMINATION IS A

PERSONAL RIGHT OF THE INDIVIDUAL

AND IS SUBJECT TO WAIVER ONLY BY

THAT INDIVIDUAL.

The Fifth Amendment of the Constitution of the Unit-

ed States provides that no person “shall be compelled in

any criminal case to be a witness against himself.’’ This

Court’s decision in Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966) was the culmination of

it’s attempt through the years to find a means of striking

a balance between societal need for police interrogation

and the protection of the accused from undue coercive

14

pressures. The Miranda decision imposed a set of rules

upon every police officer who might seek to interrogate

a person suspected of crime who had been taken into cus-

tody or whose freedom has been inhibited in a significant

way. These rules, which would on their face appear to be

relatively simple to recite and apply, require the follow-

ing admonitions be given to the suspect; (1) that he has

a right to remain silent; (2) that anything which he might

say can be used against him in a court of law; (3) that he

has a right to the presence of an atiorney; (4) that if he

eannot afford an attorney, one will be appointed for him

prior to any questioning if he so desires. Id. 384 U.S. at

467-70. These rights, however, are not indelibly etched in

granite and this court’s holding in Miranda does not com-

pletely forbid questioning of a suspect in the absence of

counsel, for it went on to say:

“After such warnings have been given and such

opportunity afforded him, the individual may know-

ingly and intelligently waive these rights and agree

to answer questions or make a statement. But unless

and until such warnings and waiver are demonstrated

by the prosecution at trial, no evidence obtained as a

result of interrogation can be used against him.’’ Id.

at 479.

By this decision the extension of the privilege against

self-incrimination from the courtroom into the police sta-

tion was made complete. Cases following Miranda have

examined and clarified the Miranda rules and their rela-

tionship to the right to counsel. Once the dual elements

of custody plus interrogation are present, the necessity

for Miranda warnings exists and the burden of providing

these warnings was placed squarely upon the police. This

court required all law enforcement officials to respect

15

without equivocation a suspect’s request for counsel or

assertion of the right to remain silent.

“Once warnings have been given, the subsequent

procedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrozation must

cease. At this point he has vhown that he intends to

exercise his Fifth Amendment privilege; any state-

ment taken after the person envokes this privilere

cannot be other than the prodnet of compulsion. subtle

or otherwise. Withont the richt to entoff questioning,

the setting of inenstody interrogation onerates on the

individnal to overcome free choice in producing a

statement after the nrivileve has been once invoked.

If the individual states that he wants an attorney, the

interrogation must cease until an attorney is present.

At that time, the individual mnst have an opportunity

to confer with the attornev and to have him present

during anv suhsequent anestionine. Tf the individual

cannot obtain an attorney and he indicates that he

wants one hefore speaking to police, they must respect

his decision to remain silent”’

“

“Tf the interro¢ation continues without the pres-

ence of an attorney and a statement is taken, a heavy

burden rests on the Government to demonstrate that

the defendant knowinelv and intelligently waived his

privilege against self-incrimination and his right to

retained or appointed counsel.’’ Miranda v. Arizona,

384 U.S. at 473-75.

It is important to read these words carefully for it is

noticible that no where in the Miranda opinion, or in suc-

ceeding cases, is it indicated that the right to counsel may

be asserted by anyone other than the accused. The strength

of Miranda lies in its simplicity. It was designed as a set

of sharp bright-line directions which police officers could

easily follow “to assure that the individual’s right to choose

16

between silence and speech remains unfettered throughout

the interrogation process.’’ Id. at 469. We have recently

been reminded in Oregon v. Elstad, 105 S.Ct. 1285, at 1291

(1985) that this Court in New York v. Quarles, 467 U.S.

—, — 1984 has noted that

“The prophylactic Miranda warnings are ‘not

themselves rights protected by the Constitution but

fare] instead measures to insure that the right against

compulsory self-inecrimination [is] protected.’ Mich-

igan v. Tucker, 417 U.S. 433, 444 (1974); see Edwards

v. Arizona, 451 U.S. 477, 492 (1981) (Powell, J., con-

curring). Requiring Miranda warnings before cas-

todial interrogation provides ‘practical reinforcement’

for the Fifth Amendment right.’’

Nowhere in the Miranda decision does it say that the

Fifth Amendment Right is anything but personal to the

suspect. Nowhere does it say that attorneys have the

right to be present at a susnect’s interrogation, or the right

to speak to a suspect in custody, or the right to claim

on his behalf a suspect’s Fifth Amendment privilege

against self-incrimination. Tf this were so, this Court

would certainly have included such directives in its in-

structions to the police.

This Court in Michigan v. Mosley, 423 U.S. 96 (1975),

in interpreting the requirement of Miranda that once the

individual indicates in any manner at anytime prior to or

during questioning, that he wishes to remain silent, the

interrogation must cease, declared that Miranda “directed

that ‘the interrogation must cease’ until an attorney is

present ‘only’ [if] the individual states that he wants an

attorney.’’’ 423 U.S. at 104 n. 10, quoting 384 U.S. at

474. And in Brewer v. Williams, 430 U.S. 387, at 419 (1977)

Chief Justice Burger, dissenting, states:

17

“But Constitutional rights are personal, and an

otherwise valid waiver should not he brushed aside by

judges simply because an attorney was not present.

The Court’s holding operates to ‘imprison a man in his

privileges,’ . . . It denigrates an individual to a non-

person whose free will has hecome hostage to a lawyer

-o that until the lawyer consents, the suspect is de-

prived of any legal richt or power to decide for him-

self that he wishes to make a disclosure. It denies that

the rights to counsel and silence are personal, non-

delegable. and subject to a waiver only by that in-

dividual. (footnote omitted) ”’

II. THE WAIVER OF THE FIFTH AMEND.

MENT PRIVILEGE AGAINST SELF-IN-

CRIMINATION MUST BE MADE KNOW-

INGLY AND VOLUNTARILY AND A

HEAVY BURDEN RESTS ON THE GOV.

ERNMENT TO PROVE SUCH.

Once it has. been determined that the Fifth \mend-

ment is a personal right of the suspect, and that only he

can waive his Miranda safecuards of that right, the next

step is to determine whether he has done so knowingly and

voluntarily. The determination whether an aceused has

knowingly and voluntarily waived his Miranda rights de-

pends on all of the facts of each particular case. Fare vr.

Michael C., 442 U.S. 707, 724-25 (1970) This Court has

directed lower courts to review the totality of the cireum-

stances surrounding the waiver. These circumstances in-

elude the background, experience, and conduct of the ae-

eused. Johnson v. Zerbst, 304 U.S. 458, 464 (1938) But the

factors making up the totality of the circumstances have

never been specifically outlined by this Court. Lower

courts, in analyzing the validity of a waiver of rights have

referred to factors which fall predominantly into two

classes: (1) the personal characteristics of the suspect

18

as they bear upon his ability to make an effective waiver,

and (2) the conduct of the police in eliciting the waiver.

If the conduet of the police is too overbearing on the sus-

pect’s will or if the suspect’s personal traits or condition

render it unlikely that he is capable of making an intelli-

gent decision, then any waiver of rights made by such a

suspect would most probably not be considered effective

under the heavy “burden’’ standard placed upon the state

to prove a valid waiver. Miranda v. Arizona, 384 U.S. 436,

475 (1966) The suspect’s personal traits include age, level

of intelligence, amount of education, prior experience with

the police, influence of drugs or medication, and ability to

read and speak English. And this Court in Miranda, in

addressing the proper police conduct, held that “Any evi-

dence that the accused was threatened, tricked, or ecajoled

into a waiver will, of course, show that the defendant did

not voluntarily waive his privilege.” Id. at 476 This

Court has aiso stated that “a lengthy interrogation or

incommuniecado inearceration before a statement is made

is strong evidence that the aceused did not validly waive

his rights. In these cireumstances tie fact that the indi-

vidual eventually made a statement is consistent with the

eonelusion that the compelline influence of the in-

terrogation finally forced him to do so.” Id. at 476 And

although an express, written waiver may be persuasive

evidence, the trial justice must nevertheless examine the

circumstances and facts in their totalitv to determine

whether waiver has in fact oceurred. North Carolina rv.

Butler, 441 U.S. 369, 375-76 (1979)

In Rhode Island, when the voluntariness of an extra-

judicial statement er confession is challenyed, the trial

judge must conduct an evidentiary hearing outside the

19

presence of the jury in order to determine admissibility

under constitutional standards. The statement or confes-

sion may be admitted only if the trial judge is persuaded by

clear and convincing evidence that it was not illegally ob-

tained. State v. Benton, 413 A.2d 104, 109 (R.T. 1980) If

the statement is admitted into evidence, under Rhode Is-

land law the question of voluntariness is again submitted

to the jury. Thus the practice in Rhode Island provides a

criminal defendant with the constitutionally required “re-

liable and clear cut determination that the confession was

in fact voluntarily rendered.’’ Lego v. Twomey, 404 U.S.

477, 489 (1972) On appeal, if the Rhode Island Supreme

Court is satisfied that the trial justice adequately and ecor-

rectly applied the procedurés, it examines the record in

the light most favorable to the prevailing party and re-

verses only if it finds that the decision of the trial justice

was clearly erroneous. State v. Killay, 480 A.2d 418, 421

(R.T. 1981)

III. THREE COURTS, INCLUDING THE STATE

TRIAL COURT. THE STAT#Z SUPREME

COURT AND THF FEDERAL DISTRICT

COURT HFLD THAT THE PROSECUTION

SUCCESSFULLY SUSTAINED THE

WEIGHTY BURDEN OF PROVING THAT

THE RESPONDENT’S WAIVERS WERE

MADE KNOWINGLY, VOLUNTARILY

AND INTELLIGENTLY WITHOUT THE

ADVICE OF AN UNREQUESTED ATTOR.-

NEY.

In reviewing the testimony before the trial court con-

cerning Burbine’s three waivers of rights and three con

fessions, the Rhode [sland Supreme Court found the ev!

dence overwhelming in support of the trial justice's find

20

ing that Burbine was admonished of the right to remain

silent and of his right to retained or apponted counsel.

(Pet. App. 63) It was noted that Burbine had previously

been represented by the public defenders office. (Pet.

App. 63) The record shows he was not unfamiliar with the

ritual of criminal proceedings; he was involved, immedi-

ately prior to his arrest, with the defense of unrelated

criminal charges agains him, (S.H. 111, 240-241) There is

nothing in the record to suggest Burbine was illiterate or

lacked the capacity to understand or to appreciate his

rights; in fact a close reading of the testimony, particular-

ly that of Lt. Gannon, reveals that Burbine was advised

of the full spectrum of his Constitutional perogatives at

least three times in a thorough, indeed meticulos, manner

(S.H. 24-30, 34-37); that he acknowledged his comprehen-

sion of those rights (S.H. 25, 34); and that he specifically

agreed to speak with the Providence officers without the

presence of counsel. (S.H. 27, 63) There is no suggestion

here of police brutality, or of coercion, psychological dur-

ess, illicit inducement, intimidation, or the like. Burbine

was not grilled for long stretches of time, nor in unusual-

lv oppressive circumstances.

Moreover, since Burbine was at the time being rep.

resented by Attorney Casparian in connection with an-

other criminal case, indeed the record shows that he had

a scheduled appointment with the attorney on the very

day of his apprehension by the Cranston police, (S.H.

190) he must have been aware that contac’ with Cas

parian was among his options as the interrogation began

and continued. He did not avail himself of any of his

many opportunities to do so. The record reveals that

a telephone was available to him at all times (S.H. 23)

21

and he knew his sister had called the police station and

that she had gotten him help previously when he was ar-

rested. (S.H. 216, 220) Yet, he did not choose to remain

silent and wait. As late as the beginning of his third con-

fession, (shortly after noon the next day on June 30)

after a court appearance and a transfer to the Providence

police station, he told Trafford that he did not want the

services of counsel. (S.H. 93, 95)

Considering all of these facts, the Rhode Island Su-

preme Court, stating that the principles of Miranda place

the assertion of the right to remain silent and the right

to counsel upon the accused, and not upon benign third

parties, whether or not they happen to be attorneys, (Pet.

App. 60) found it hardly conceivable that the additional

information that an attorney whom Burbine did not know

had called the police station would have added significant-

lv to the quantum of information necessary for the accused

to make an informed decision as to waiver. (Pet. App. 63-

64)

The Federal District Court, in addressing Burbine’s

habeas corpus petition, and reviewing whether the State

had shouldered its burden to demonstrate that the defend-

ant knowingly and intelligently waived his privilege against

self-incrimination and his right to retained or appointed

counsel’? paid substantial deference to the state court’s

findings of historical fact. Sumner v. Mata, 455 U.S. at

997 (Pet. App. 27)

The District Court agreed with the Rhode Island Su-

preme Court that

2 Brewer v. Williams, 430 U.S. 387, 397 n. 4 (1977).

22

“ |. . petitioner’s right against self-incrimination

is personal; it cannot be invoked or waived by anyone

other than the person to whom the right attaches...

Even if [the police] conduct infringed on an existing

attorney-client relationship ... , it could not violate

petitioner’s Fifth Amendment right not to incriminate

himself unless the conversation itself somehow af-

fected petitioner’s capacity to invoke his rights’’. Bur-

bine v. Moran, 589 F. Supp. at 1251 (Pet. App. 36)

Reviewing the record the District Court found that

the police “were hardly withholding vital information”? in

failing to mention Munson’s call to Burbine.- (Pet. App. 39)

“Nor can Burbine persuasively argue that the failure

of the police to inform him of Munson’s call, or the

alleged impartine of misleading information to the

attorney, severally or collectively constituted chican-

erv sufficient to vitiate his seriatim waivers. While

it is true that trickery can annul a superficially valid

surrender of fifth amendment rights, Miranda, (cita-

tions omitted) that doctrine is not ealled into play on

these facts. The trial judge specifically cleared the

police of any collusion or attempt to deceive: and the

State Supreme Court. ?Purbine TT. 451 A.2d at 29-30

n. 5, presented an entirely plausible explanation for

the seeming inconsistency in the trial court’s findings.

(the Superior Court having coupled its exoneration

of the police officers with a finding that Munson had

indeed called). More importantly, Burbine had an

ongoing professional relationship with the publie de.

fender’s office: and therefore, knew not only of his

right to the assistance of counsel bunt of his entree

to the public defender shonld he wish assistance from

that source....”’

“Finally, it should be noted that the petitioner

waived his rights not on one isolated oceasion, but

three times within less than a day (in the last instance,

after having heen brought before a judicial affirm).

And, the second statement care about at Burbine’s

23

instigation, when he volunteered that he had forgotten

to mention something of consequence in his first eon-

fession (S.H. 33) At no time, apart from his declina-

tion of Ferranti’s original invitation to talk,’ did he

essay to halt the questioning and to stand upon his

right to remain silent—and the record reflects that

he was specifically advised of his right to draw the

line at any given point.4 The record persuasively in-

dicates that the Providence police were both pains-

taking and assiduous in their attention to the Miranda

commandments. From and after Burbine’s first con-

tact with the Providence police, the course of his eon-

duet “evidenced a firm, abiding, caleulated, and con-

tinning intention to waive his right against self-in-

crimination and his right to counsel.’’ Fuentes I, 572

F. Supp. at 1473. He had several meaningful oppor-

tunities to maintain his silence but he forebore. And,

there is seant reason to believe that news of Munson’s

inquiry, even if revealed, would have constituted a

consequential datum or would have deflected Burbine

from his self-appointed rounds. Burbine v. Moran,

O89 F. Supp. at 1252 (Pet. App. 38-40)

Based on this reasoning, after assessing the cireum-

stances of the case as a whole, the District Court held the

State Cour. ; finding that the prosecution successfully

sustained the weighty burden of establishing that peti-

tioner’s waiver was made sentiently, intelligently, and in

the free exercise of volitional judgment is supportable.

Burbine v. Moran, 589 ¥ Supp. at 1253 (Pet. App. 40)

’ Even this demurrer was less than complete; Burbine did give

Ferranti some helpful information about his sobriquet and place

of residence. See, e.g., Burbine Il, 451 A.2d at 23.

* In Lt. Gannon’s words: “| made it clear to him that at any-

time he wanted to he could terminate the statement, and at

anytime he felt he wanted to call a lawyer, once again, that he

should terminate the statement and obtain a |»\ver’’. (S.H. 29)

24

IV. THE FIRST CIRCUIT COURT OF AP-

PEALS FOUND THAT AN OTHERWISE

VALID WAIVER OF FIFTH AMENDMENT

MIRANDA RIGHTS CAN BE VITIATED BY

THE ADDITIONAL FACTOR OF AN IN-

QUIRY FROM AN UNREQUESTED AT-

TORNEY, IF THE ATTORNEY IS DILI-

GENT; THE POLICE HAVE ACTED RECK-

LESSLY IN PROVIDING MISLEADING

INFORMATION; AND THF SUSPECT IS

NOT INFORMED OF THE TELEPHONE

CALL.

Three courts, (which included four opportunities for

Burbine to contest the voluntariness of his waivers) having

determined that lack of knowledge of Munson’s telephone

eall could not have, and in fact did not, affect the knowing

and voluntary waiver by Burbine of his Fifth Amendment

privilege, he nevertheless continued to the next level of

appellate review and finally sueceeded in persuading the

First Cireuit Court of Appeals that his “Fifth Amendment

right to counsel and privilege against self-inerimination

were violated and that all three of the ineulpatory state-

ments that he made while in custody should have been

suppressed.’’ Burbime v. Moran, 753 F.2d 178 at 187 (Pet.

App. 21) The First Circuit analyzed the totality of facts

and circumstances surrounding Burbine’s waiver and, ex-

eluding evidence concerning the alleged telephone eall,

found a valid waiver. This is not the kind of Fifth Amend-

ment case in which direct physical or psychological pres-

sure from the police is claimed to have overborne the will

of a suspect. Purbine v. Moran, 753 F.2d 178, at 184 (Pet.

App. 12) But the court then proceeded to assess to what

extent the additional factor of a refusal to inform a sus-

pect of the availability of specific counsel can be said to

25

infect an otherwise valid waiver. Id. at 184. The Court

took into account three factors in assessing the effect of

this phone call on Burbine and the voluntariness of his

waiver of counsel; the withholding from Burbine of the

fact that Attorney Munson had ealled; the withholding of

the fact that Munson had been told there would be no ques-

tioning or lineup that nivht: and the conduct of the police

in effecting the withholding. The Cireuit Court found that

this information would have conveyed a message to Bur-

bine that a diligent attorney was available and that the

police were now changing the ground rules as they had

told her he was not to be questioned that night. With this

information he might very well have decided to hold his

interrogators to their word. Id. at 185 (Pet. App. 14) In

addition the Cireuit Court considered whether the conduct

of the police amounted to trickery or other blameworthy

action, and determined that the refusal to tell Burbine of

Attorney Munson’s eall could only be explained as deliber-

ate or reckless irresponsibility of the person who respond-

ed to the eall. Id. at 185 (Pet. App. 15)°

V. THE FIRST CIRCUIT RULING DISRE-

GARDS THE EVIDENCE AS FOUND BY

THE LOWER COURTS AND IS NOT

BASED ON A VIOLATION OF CONSTITU-

TIONAL STANDARDS.

The problem with the analysis of the First Circuit is

obvious in the following statement: “Our problem is not

5 In State v. Beck, 687 S.W.2d 155 (Mo., 1985) an attorney re-

quested that she be notified before any questioning of the de-

fendant took place and the sheriff failed to inform the defend-

ant or to disclose to the attorney that the prosecutor had ad-

vised him he had no legal duty to first notify her before at-

(Continued on following page)

26

that the finding of lack of collusion or conspiracy is un-

supported, but that it does not cover the other relevant

possible police responses.” Td. at 185 (Pet. App. 16) There

were no facts in the record to explain the circumstances of

the receipt of the unverified phone call at the Cranston po-

lice station. The credibility of the police officers who de-

nied receiving or hearing about the phone call was deter-

mined in their favor by the trial judge who found no collu-

sion and by the jury which found Burbine’s waiver volun-

tary. This Court in Oregon v. Bradshaw, 103 S.Ct. 2830, at

2835 (1983), in reviewing the findings of the state trial

court as to whether the respondent’s statements to a poly-

graph examiner were voluntary and a knowing waiver of

his right to remain silent, said we have no reason to dispute

these conclusions, based as they are upon the trial court’s

first-hand observation of the witnesses to the events in-

volved. And in this same case Justice Powell, concurring

in the judgement of the court, said “But the question of

whether a suspect has waived this important right to coun-

sel is uniquely one of fact, and usually must and should

be left to the judgement of the trial court that has had the

benefit of hearing the evidence and assessing the weight

and credibility of testimony.’’ Td. 103 8.Ct., at 2838

The Rhode Island Supreme Court and the District

Court rationalized that the apparent incongruity of the

findings (that a eal! had been made, which no one had heen

(Continued from previous page)

tempting to seek a valid waiver and statement from the de-

fendant. The Missouri Supreme Court said that the term “de-

ceit” was far too harsh and simply inaccurate in describing the

sheriff's actions in not notifying the attorney and held that the

defendant knowingly and intelligently elected to waive his

right to counsel. See also Hance v. Zant, 696 F.2d 940 (11th

Cir. 1983) cert. denied 103 S.Ct. 3544; Blanks v. State, No. 41673,

Ga. Sup. Ct., (June 10, 1985) 37 Crl 2250, 7-3-85.

27

found to receive) could be explained by the fact that the

Cranston police were investigating one crime, the break-

ing and entering, while the Providence police were inves-

tigating another, the murder of Mary Jo Hickey, and that

the recipient of Ms. Munson’s call was merely referring to

the former. State v. Burbine, 451 A.2d at 29-30 n.5 The

Cireuit Court swept aside this explanation as based on as-

sumptions unsupported by the record. 753 F. 2d at 186 (Pet.

App. 17) Although the record does show that Cranston De-

tective Ferranti testified the breaking and entering case

was a police denartment case, the detective division did not

present Burbine for arraignment the next morning and

there could haye been more than two detectives working

that night as they had another murder they were investi-

gating; (S.H. 166,179) Providence Police Detective Lieu-

tenant Gannon testified there were transits, he assumed to

be policemen, through the area; (T. 376,377) and Provi-

dence Detective Trafford testified that he first saw Burbine

around 9 o’clock going through the main guard room with

a uniformed Cranston police officer. (S.H. 105-106) The

First Cireuit discounted this testimony and instead ere-

ated an entirely new assumption which has absolutely no

factual basis in the record. There is not one specific fact

in the record to indicate recklessness.

In reviewing the record it also becomes clear that the

First Cireuit has decided to ignore the facts that Burbine

appeared anxious to clear his conscience. He ealled his

mother every day from Maine to discuss Mary Jo’s con-

dition (T. 188); he told Donald Sparks and Nancy what he

had done (T. 176-177, 301-303) and one day after talking

on the telephone said he was going home to “straighten it

out’’;.and he told the police he was “disgusted’’ and “sor.

~)

28

ry’’ and wanted to “confess’’ (S.H. 154). He also testified

that he heard the police talking to his sister. He knew she

had gotten him help in the past, yet he did not wait, but

proceeded to tell them his story. In addition, the First Cir-

cuit’s determination that Attorney Munson in this case was

diligent, as opposed to the “half-hearted’’, feckless effort

to be of service which it attributed to the attorney in

Fuentes v. Moran, 733 F.2d 176 (1st Cir. 1984), and which

caused the waiver in that case to be held voluntary, does

not seem to follow from the record where she testified that

she did not inquire with whom she was speaking, did not

ask what the charges were against Burbine, did not request

that she be informed if there were any further develop-

ments, did not request to speak to Burbine or that any

message be given to him and did not attempt to contact him

the next morning although she knew he was incarcerated.

(S.H. 257-259)

It seems obvious that it is the factual findings of the

trial court, upheld by the State Supreme Court and the

Federal District Court which are supported in the record

and therefore should be upheld. Sumner v. Mata, 455 U.S.

591, 592 (1982)

VI. THE CIRST CIRCUIT COURT IS ASSUM-

ING A SUPERVISORY ROLE OVER THE

RHODE ISLAND SUPREME COURT IN.

STEAD OF ABIDING BY THE LIMITED

SCOPE OF REVIEW OF A WRIT OF HA-

BEAS CORPUS, AND HAS ESTABLISHED

AN ADDITIONAL SET OF CONFUSING

GUIDELINES FOR THE POLICE TO FOL.-

LOW WHEN INTERROGATING AN INDI-

VIDUAL SUSPECTED OF COMMITTING

A CRIME.

The First Circuit is in effect assuming a supervisory

role over the Rhode Island Supreme Court and taking upon

29

itself to determine when and if police action is proper in

dealing with attorney requests concerning defendants in

custody for interrogation. In Fuentes the First Circuit

stated “... some of the questions or contrary inferences

we have noted indicate how careful law enforcement of-

ficials must be in dealing with suspects and lawyers dur-

ing the investigatory phase of a prosecution.’’ Fuentes

v. Moran, 733 F.2d at 181 This statement clearly reveals

the First Cireuit’s interest in reviewing police behavior.

On appeal from a United States District Court’s denial

of a state prisoner’s application for habeas corpus the re-

view by the Court of Appeals is the narrow one... and

not the broad exercise of supervisory power that the court

could possess in regard to its own trial court. Donnelly

v. De Christofaro, 416 U.S. 637 (1974) A writ of habeas

corpus has limited scope: the federal courts do not sit

to retry state cases de novo but rather to review for vio-

lation of federal constitutional standards. Milton v. Wain-

wright, 407 U.S. 371 (1972)

In this case the First Circuit appears to confuse the

Fifth Amendment’s right avainst self-incrimination and

its subsidiary Miranda rights with the Sixth Amendment’s

right to counsel. The Miranda standards were met in this

case. This is not an issue of Sixth Amendment right to

counsel. The Constitution does not guarantee that a crim-

inal suspect is entitled to the assistance of counsel dur-

ing all encounters with the police in which investigation

of crime is the primary police motive. Rather, the Sixth

Amendment guarantees the assistance of counsel only after

adversarial proceedings have com:. enced against the sus-

pect, whether by way of formal charge, preliminary hear-

ing, indictment, information, or arraignment. Brewer v.

Williams, 430 U.S. 387, 398. In United States v. Gouveia,

— U.S. —, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) this Court

30

reaffirmed “that the right to counsel attaches only at or

after the initiation of adversary judicial proceedings

against the defendant.’’ Id. at —, 104 S.Ct. av 2297.

Neither the Rhode Island Supreme Court, the federal

district court nor the First Circuit have accepted the per se

New York rule, based on that state’s constitution, some-

times referred to as the Donovan-Arthur-Hobson rule,°

whose principle is that once the police know or have been

apprised of the fact that the defendant is represented by

counsel or that an attorney has communicated with the

police for the purpose of representing the defendant, the

accused’s right to counsel attaches and may not be Waived

in the absence of counsel. The rule would appear to be at

odds with the expressed opinion of this Court in Brewer

v. Williams, supra, wherein this Court observed:

“The Court of appeals did not hold, nor do we,

that under the cireumstances of this case Williams

could not, without notice to counsel, have waived his

rights under the Sixth and Fourteenth Amendments.

It only held, as do we, that he did not.’’ (Footnote

omitted.) 430 U.S. at 405-06, 97 S.Ct. at 1243, 51 1..Fd.

2d at 441.

Rather, in determining whether the suspect has made a

knowing as well as voluntary choice, in the sense of not

being coerced, to speak without a lawyer’s advice. these

courts have considered the effect of an attorney’s call to

the police station inquiring about the snrvect, and the fail-

ure of the police to inform the suspect of this call. in the

totality of the circumstances surrounding his waiver.

6 People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 384

N.Y.S. 419 (1976); People v. Arthur, 22 N.Y.2d 325, 239 N.E.

2d 537, 292 N.Y.S.2d 663 (1968); People v. Donovan, 13 N.Y.2d

148, 193 N.E.2d 628, 243 N.Y.S.2d 841 (1963).

31

In doing so, the result has been that the First Cireuit

has now in effect established a new and additional set of

guidelines to those of Miranda for the police to follow.

The ruling of the First Cireuit is such: “Deliberate or

reckless misleading of an atterney, who has a legitimate,

professionally ethical interest in a suspect in custody and

who expresses to the police a desire to be present at any

interrogation of the suspect, combined with a police fail-

ure to communicate that exchange to the suspect, is more

than just one factor in the caleulus of waiver. This com-

bination of circumstances clearly vitiates any claim that a

waiver of counsel was knowing and voluntary.’’ Burbine v.

Moran, 752 F.2d at 187 (Pet. App. 20) The First Circuit is

now requiring the police to answer their telephones with

trepidation. First it must be determined wo is caliing, does

this attorney have a legitimate, professionally ethical inter-

est in the suspect, has the attorney expressed in proper

words his interest or has he made a merely “feckless’’ ef-

fort on the suspec} ’s behalf. The courts will now be review-

ing whether a proper attorney client relationship existed;

if so, whether the attorney acted with the proper diligence”’

in his elient’s interest, and whether the actions of the po-

lice were deliberate or reckless, or perhaps merely neg-

ligent,’ in misleading the attorney. If these factors of

attorney diligence and his or her deliberate or reckless mis-

leading by the police are found, and for some reason the

suspect is not informed of the call, there can be no knowing

and voluntary waiver. In other words, the First Cireuit

has coneluded that in such instances it is not the free

7 The First Circuit left the result of a ‘merely negligent’ fail-

ure to communicate for another day. Burbine v. Moran (Pet.

App. 21)

32

choice and will of the suspect, based on the information

provided by the Miranda rights, and his own experience,

intelligence and needs that determines if his waiver was

valid and his confession voluntary a.:d knowing but the

external circumstances of the attorney’s ability to ask

the right questions and the police to make the proper re-

sponse. The hypotheses to be drawn from this situation

are endless. To the extreme can be pictured the retaining

of an attorney for purposes of his registering with the

local police his availability and his request to be present

if his client is ever arrested and interrogated, thereby

placing on the police the duty upon arrest of a suspect to

immediately check this registration list for counsel. This

list could extend to a nationally computerized list, mean-

ing suspects arrested and interrogated anywhere in the

country, as well as merely outside the police station, would

be “protected’’ by this registration.*®

The absurdity of the ruling of the First Cireuit in

this case has not been unanticipated. We have here the

very set of circumstances Mr. Justice White foresaw in

his dissenting opinion in Miranda:

‘All of this makes very little sense in terms of the

compulsion which the Fifth Amendment proscribes.

That Amendment ¢Ceals with compelling the accused

himself. It is his free will that is invoked. Confes-

sions and incriminating admissions, as such, are not

forbidden evidence; only those which are compelled

8 The New York rule as interpreted in People v. Gunner, 15

N.Y.2d 226, 205 N.E.2d 852, 257 N.Y.S.2zd 924 (1965) has been

given such effect as to bar the use of an inculpatory statement

made by a suspect in California after the defense lawyer tele-

honed the Nassau County chief of police in New York that

- was representing the defendant.

33

are barred. .. The focus then is not on the will of

the accused but on the will of counsel and how much

influence he can have on the accused. Obviously there

is no warrant in the Fifth Amendment for thus in-

stalling counsel as the arbiter of the privilkge.” 1d.

384 U.S. 536-537

The Cireuit Court’s ruling in this case will allow an

attorney’s telephone call to the switchboard of the police

station to frustrate the investigation of crimes. It has

extended the precept of Miranda that once warned, the

suspect is free to exercise his own volition in deciding

whether or not to make a statement to the authorities.

Miranda, in establishing a standardized procedure or

“bright line” rule,? has specified what legal facts must

be provided a suspect for him to knowingly waive his

rights in a custodial setting. This Court has never “em-

braced the theory that a defendant's ignorance of the

full consequences of his decisions vitiates their voluntar-

iness ... we have not held that the sine qua non for a

knowing and voluntary waiver of the right to remain

silent is a full and complete appreciation of all of the

9 “ ... Miranda is a standardized procedure” or “bright line”

rule par excellence—although it happens to be a “bright line”

rule in favor of the defendant. You cannot begin to understand

Miranda, or hope to defend it, unless you remember what pre-

ceded it—a “voluntariness’”—‘‘totality of the circumstances’

test that was elusive, unruly and largely unworkable—a test

that provided precious little guidance to the police or to the

courts in the front line.

A “bright line” rule is a relatively readily unc erstood and

easily applied rule designed to produce the right result in most

cases. It is designed to relieve the police and the lower courts

of the burden of making exceedingly difficult case-by-case

judgments. Volume Four, The Supreme Court: Trends and

Developments 1981-1982 by Jesse Choper, Yale Kamisar, Lau-

rence Tribe, Chanter 20, Panel Discussion, p. 233

34

consequences flowing from the nature and the quality

of the evidence in the case.” Oregon v. Esltad, 105 §.Ct.

at 1297-1298.

Miranda sought to add clarity to the law; to protect

an individual’s Fifth Amendment privilege against self-

incrimination by excluding coerced confessions as evi-

dence. The Miranda guidelines were to deter the police

from using improper interrogation practices and violating

the rights of the accused. If this is so then these rights

should be the same for all citizens. The ruling of the

First Cirenit in this case shifts these ‘‘rights” from citi-

zen to citizen. Even Professor Yale Kamisar, a promi-

nent exponent of the rights of the accused, criticizes the

type of court ruling which does not turn on a suspect’s

request for counsel, but allows a suspect, who fails to ask

for a lawyer, to subsequently succeed in suppressing his

confession because a lawyer who previously represented

the client learns of his former client’s plight and comes

to the rescue on his own initiative; or his family retains a

lawyer on his behalf, without his knowledge or even

request for a lawyer, and this lawyer enters the proceed-

ing in the nick of time.

If these Miranda warnings are good enough for the

suspect who has not, or whose family cr friends have

not, contacted a lawyer or whose lawyer has not managed

to win the race to the stationhouse or telephone, why are

they not sufficient for the suspect who, or whose family,

has the money and the connection to bring a lawyer swift-

ly into the fray? Should not the indigent or recluse be

accorded the same rights and privileges as the affluent

or sociabie? At its worst, this ruling would seem to favor

35

the professional criminal with his standby attorney most

of all.

‘‘There is not even a weak congruence—indeed,

there is no congruence at all—between a defense

lawyer’s entry into the proceeding and a suspect’s

need for ‘a lawyer’s help’ or the government’s need

for evidence. Whatever its symbolic value, a rule

that turns on how soon a defense lawyer appears

at the police station or how quickly he ‘spring(s) to

the telephone’ hardly seems a rational way of ree-

onciling the interests of the accused with those of

society.’? Y. Kamisar, Brewer v. Williams, Massiah,

and Miranda: What is “interrogation’’? When Does it

Matter? in Police Interrogation and Confession, p. 220

(1980)

The decision of the First Cireuit Court of Appeals is

not only unsupported by the evidence in this case and

an attempt to exercise supervisory control over the Su-

preme Court of the State of Rhode Island but is an arbi-

trary ruling capable of creating chaos in the uniform

administration of justice for all.

°

36

CONCLUSION

For the reasons stated and upon the authorities cited,

the judgment of the First Cireuit Court of Appeals

should be reversed and the case should be remanded

for entry of judgment in favor of the petitioner.

July 10, 1985

Respectfully submitted,

JOHN MORAN

By his attorneys,

ARLENE VIOLET

Attorney General

Constance L. MrEssore

Special Assistant Attorney

General; Chief, Appellate Division

72 Pine Street

Providence, Rhode Island 02903

Attorneys for the Petitioner