Respondents Brief — Minnick v. Mississippi

ROBERT S. MINNICK

PETITIONER

VERSUS

STATE OF MISSISSIPPI!

RESPONDENT

5 ON PETITION FOR WRIT OF CERTIORAR!

TO THE SUPREME COURT OF miSsSiISSiIPP:

BRIEF OF RESPONDENT

MIKE MOORE

ATTORNEY GENERAL

STATE OF mISSISSIFr:

MARVIN L. WHITE. JR.

ASSISTANT ATTORNEY GENERAL

(COUNSEL OF RECORD)

ATTORNEYS FOR RESPONDENT

OFFICE OF THE ATTORNEY GENERAL

POST OFFICE BOX 220

JACKSON MISSISSIPP! 39208

TELEPHONE: (60°) 389-3660

Whether, Once An Accused Has

Expressed His Desire To Deal With Law

Enforcement Officers Only Through Counsel,

The Police May Reinitiate Interrogation In

The Absence Of Counsel As Soon As The

Accused Has Completed One Consultation

With A Lawyer?!

i This is the question presented

as found in the petition for certiorari on

which the Court granted certiorari. The

question found in petitioner's brief on

the merits differs markedly.

i

ZABLE OF CONTENTS

QUESTION PRESENTED . .

TABLE OF CONTENTS ... .

TABLE OF AUTHORITIES . . .

BRIEF OF RESPONDENTS .. .

OPINIONS BELOW. .....

JURISDICTION. .....,

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE ..

A. Substantive Facts ..

B. Procedural History .

SUMMARY OF THE ARGUMENT .

ARGUMENT...

THE FIFTH AMENDMENT CLAIM

THE SIXTH AMENDMENT CLAIM

CONCLUSION. .......,

CERTIFICATE OF SERVICE . .

iii

TABLE OF AUTHORITIES

CASES

, 486 U.S.

I 6 6 6 6 0 0 «

, 455 So.2d

713 (Miss. 1984).

, 455 U.S.

MEE gg co ce ew

, 399 U.S.

1 (1970) . -« «+ «+ «© es

, 479 U.S.

523 (1987) . se«seee

, 451 U.S.

14

47

34, 36

477 (1981) . 9, 11-18, 21, 39, 40

’

General Talking Pictures Corporation

vy. Western Electric Company

304 U.S. 175 (1937)

, 304 U.S.

458 (1938) ......

, 496 U.S.

682 (1972) .....

, 519 So.2d

1218 (Miss. 1988)

, 494 U.S.

110 S.Ct. 1176, 108 L.Ed.

293 (1990) ....

Michigan v. Jackson, 475 U.S.

iii

40

21

47

42, 43

31, 33

625 (1986) ..

, 551 So.2d

77 (Miss.1988)

2, 8

15.

19

, 384 U.S.

436 (1966) .. 12, i6-19, 23, 25, 38

, 462 U.S.

1039 (1983) ....... 14,

, 495 So.2d

436 (Miss. 1986)

, 487 U.S.

285 (1988) .. oe ee

, 436 U.S.

a ae a Ga 6 «oS

, 467 U.S.

ee 2 6 cs 0 eo 8

, 708 F.2d

1540 (10th Cir. 1983) ....

AMENDEENTS. STATUTES AND RULES

28 U.S.C. $1257(3) ...

Miss. Code Ann. Section 99-1-5

(i972) 3 ec eee

Miss. Code Ann. § 99-1-7 (1972) ..

Miss. Code Ann. §99-3-21 (1972)

United States Constitution,

Fifth Amendment...

iv

45

14

38

48

37

- 9, ll, 13, 17

United Sta*es Constitution,

Sixth Amendment .-.-: - 9,

Sup. Ct. Rule, 24.1(a)

ll, 40, 41, 43,

45-48

41

NO. 89-6332

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

ROBERT S. MINNICK,

Petitioner

versus

STATE OF MISSISSIPPI,

Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

This matter is before the Court on

the Petition of Robert S. Minnick for a

Writ of Certiorari to the Supreme Court of

The State of Mississippi wherein the Court

affirmed his two convictions of capital

murder and sentences of death.

OPINIONS BELOW

The opinion of the Mississippi

Supreme Court affirming the two

convictions and death sentences is

reported as Minnick v. State, 551 So.2d 77

(Miss.1988). The opinion is reprinted at

JA 69.

JURISDICTION

Petitioner invokes the jurisdiction

of this Court under the authority of 28

U.S.C. $1257(3) challenging the con-

stitutionality of his convictions.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioner has adequately identified

the pertinent constitutional provisions

involved and set them forth in the

Statutory Index to his brief.

STATEMENT OF THE CASE

A. Substantive Pacts:

The fact of these brutal murders as

reflected by the record in this case show

that on April 25, 1986, Robert Minnick and

James “Monkey” Dyess escaped from the

Clarke County, Mississippi, jail. Having

successfully absconded from the jail,

Minnick and Dyess hid in the woods in

rural Clarke County overnight. The next

morning they began making good their

escape by walking out of the county. In

the early afternoon, they approached the

mobile home of Donald Ellis Thomas in

rural Clarke County. They broke intc the

trailer to look for guns. As they were

collecting the guns they found, Thomas

returned home accompanied by Lamar

Lafferty and his two-year-old son, Brandon

Lafferty. Dyess jumped out of the trailer

and shot Thomas in the back with a shotgun

and then in the head with a pistol.

Minnick shot Lamar Lafferty. They put

two-year-old Brandon on the sofa in the

living room of the trailer and continued

collecting guns and ammunition.

While petitioner and Dyess were still

inside, another car arrived containing two

girls, Marty Thomas, Ellis Thomas’ younger

Desiree Beech.

sister, and (B.B.)

Petitioner went out and met them. He was

carrying a pistol. Petitioner told the

driver to give him the keys and get out of

the car if they wanted to live. The

petitioner marched the girls to the back

of the trailer where they were met by a

black man holding either a shotgun or a

rifle. In the rear of the trailer the

girls saw Ellis’ parked truck and the body

of lamar Lafferty lying on the ground.

Petitioner then took them inside the

trailer where he made them lie on their

stomachs and tied their hands and feet

with haystring. During this time, Dyess

was carrying guns out of the bedroom and

two-year-old Brandon Lafferty was sitting

on the sofa. Petitioner told Marty and

4

B.B. to tell the police that two black men

had committed the crimes. He threatened

to return and kill them if they dic not

tell this story. When all the guns hed

been removed from the house, pet *.°»e:

and Dyess left.

The two girls then begar s° em

to get lose. Using their finge

they finally cut through ‘

bound their feet and then fours

the kitchen to cut the.r ‘«

They looked out the wincow s

Ellis’ truck was gone. See.

about, they gathered up thre Sacy *

in their car and went to a4 frienc # "o.8*

where they called the police.

Petitioner and Dyess apparent .y t.ec

to New Orleans, Louisiana, as Ellis truck

which was recovered in Florida on May 6,

1986, had New Orleans parking tickets

Assistance of the New

5

under the seat.

Orleans Police Department was requested in

an attempt to locate petitioner and Dyess.

The search was fruitless as petitioner and

Dyess had left New Orleans for Mexico by

bus.

While in Mexico, petitioner and Dyess

had a disagreement, and they parted

company. hitchhiked to

California where he changed his name and

Petitioner

procured a birth certificate and driver's

license in the name of David Prokaska.

On August 22, 1986, petitioner was

arrested in Lemon Grove, California. He

was later transferred to the San Diego

Department. The Mississippi

authorities were contacted, and Deputy

Denham was dispatched to California on

August 24, 1986.

Police

While in the San Diego

County jail, petitioner made a statement

admitting his participation in this crime.

Petitioner waived extradition and

returned to Mississippi with Denham.

B. Procedural History:

Petitioner was

counts of capital murder by the grand jury

indicted for two

of the Circuit Court of Clarke County,

Mississippi, on September 9, 1986. This

indictment grew out of the robbery and

murders of Lamar Lafferty and Donald Ellis

Thomas. Minnick was also indicted as an

habitual offender. A motion for change of

venue was granted, and the trial was moved

to Lowndes County, Mississippi. The trial

began on April 6, 1987. The jury returned

a verdict of guilty as charged to both

counts of murder. At the

capital

conclusion of the sentence phase of the

trial, on April 9, 1987, the jury returned

@ sentence of death for each capital

murder conviction.

Minnick then took his automatic

appeal to the Mississippi Supreme Court

raising twenty-one (21) assignments of

error. On December 14, 1988, the

Mississippi Supreme Court, by an eight to

one vote, affirmed the convictions and

sentences of death in a written opinion.

Minnick vy. State, 551 So.2d 77 (Miss.

1988), JA 69. A timely petition for

rehearing was filed by petitioner with the

court below. A response by the state to

the petition was called for by the Court.

On October 25, 1989, the court below

denied the petition for rehearing without

further opinion. From the opinion

affirming the convictions and sentences of

death, petitioner brought a petition for

certiorari to this Court. This Court

granted certiorari on April 23, 1990.

SUMMARY OF THE ARGUMENT

The Mississippi Supreme Court

correctly found that Edwards _v. Arizona,

451 U.S. 477 (1981) allows law enforcement

officers to reinitiate contact with a

suspect once counsel has actually been

consulted to determine if he is now

willing to talk with the officers. If he

is willing to talk and waives his right to

have counsel present any statement may be

used in a prosecution against hin.

Further, the court below correctly found

that petitioner had freely, voluntarily

and intelligently waived his Fifth

Amendment right to counsel.

The question relating to the Sixth

Amendment right to counsel was not

presented in the petition for certiorari

and should not be addressed. However,

since the Sixth Amendment right to counsel

9

had not attached in the case at bar there

has been no violation of the federal

constitution.

Petitioner claims in his brief on the

merits that he was denied his rights under

the Fifth and Sixth Amendments? when his

confession given to a Mississippi deputy

sheriff was admitted into evidence. He

2 Petitioner did not raise a claim

under the Sixth Amendment in his petition

for certiorari. The addition of this

claim is a drastic expansion of the

grounds upon which cert‘orari was granted

and should not be allo +’. While main-

taining that issue should not be reached,

respondent has addres it in the

alternative, infra.

10

ee ee

claims that the introduction of the

confession violates the teachings of

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

and Michigan v. Jackson,

(1986). His basic contention is that once

he has invoked his right to counsel he can

475 U.S. 625

never waive the right to have counsel

present when he is interrogatec.

Respondent submits that neither the Fifth

nor Sixth Amendment can be read so broadly

as to make one a prisoner of his own

rights. This is especially true when one

has consulted with counsel on at least two

occasions and then admits that he intended

to talk to the officer to whom he gave the

confession.

THE FIFTH AMENDMENT CLAIM

Petitioner asserts that the Fifth

Amendment was violated when his in-

criminating statements made to Deputy J.C.

Mississippi,

Denham, a Clarke County,

11

deputy sheriff, were introduced into

evidence at his trial for two capital

murders. He bases his claim on the

prophylactic rule created by thie Court in

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

which this Court held that when one in

custody invokes his right to counsel under

Miranda v. Arizona, 384 U.S. 436 (1966),3

he ". . . is not subject to further

interrogation by the authorities until

counsel has been made available to him,

unless the accused himself initiates

further communication, exchanges, or

conversations with the police.” 451 U.S.

at 484-485. Petitioner insists that

counsel must be present at any substantive

contact he has with the authorities from

that point forward. The question here

3 Miranda created the original

prophylactic rule to insure that a

suspect's right to remain silent was

observed during the interrogation process.

12

turns on the implications of the phrase in

Edwards which reads “until counsel has

been made available” to the suspect.

The Mississippi Supreme Court found

that Minnick, while being questioned by

agents from the FBI, had invoked his right

to counsel, and that invocation had been

honored by those agents. The court below

further found that Minnick was furnished

counsel and actually consulted with

counsel prior to the time he was inter-

viewed by Deputy Denham. The court then

concluded that the Fifth Amendment had

been satisfied by Minnick's consultation

with counsel. The Mississippi court held

that since Minnick had actually consulted

with counsel, "Edwards [sic] bright line

13

rule as to initiation does not apply "

551 So.2d at 83, JA 76.4

Petitioner contends that the

Mississippi court misreads the precedent

of this Court when that court states that

the key phrase in Edwards is “until

counsel has been made available to him.”

551 So.2d at 83, JA 76. This quote from

Edwards was used by the Court in Patterson

v. Illinois, 487 U.S. 285, 291 (1988) (a

Sixth Amendment Arizona vy.

Roberson, 486 U.S. 675, 678 (1983) and

cited with emphasis in Oregon v. Bradshaw,

462 U.S. 1039, 1043 (1983) indicating that

case),

it is not mere dicta. A fair reading of

4 Other courts presented with this

question have reached similar results.

See, United States v. Hall, 905 F.2d 909

(6th Cir. 1990); United States v.

Halliday, 658 F.2d 1103 (6th Cir.), cert.

den., 454 U.S. 1127 (1981); State y.

Grizzle, 293 S.C. 19, 358 S.E.2d 388

(1987), cert. den., 484 U.S. 1012 (1988);

State v. Cody, 323 N.W.2d 863 (S.D. 1982).

14

Edwards allows the holding of the court

below easily to be squared with the

concerns of the Court in Edwards.

Edwards, one finds it

contains two situations in which the state

Reading

may attempt to re-question a suspect after

he has invoked his right to counsel. The

first situation is when the suspect

reinitiates the contact with the police

after he has invoked his right to counsel.

Oregon v. Bradshaw.

under which the police can attempt the re-

The second situation

questioning of a suspect arises when the

suspect requests counsel and is actually

furnished with counsel. After the suspect

has consulted with counsel, the police may

reapproach the suspect to determine

whether he is now willing to talk with the

officers.

This second situation in Edwards has

little

received analysis since the

15

-“

majority of the cases dealing with the

prophylactic rule of Edwards rest on a

factual background different from the one

at bar. The familiar Edwards scenario is

one in which proper warnings are given

under Miranda, and the suspect invokes his

right to counsel. After the right to

counsel has been invoked, the police

either continue to question the subject,

ignoring his invocation, or they “stop

questioning the suspect, but reiniciate

the questioning prior to furnishing of

counsel. Therefore, the Court has never

been preser* d with the factual situation

which allowed it to address fully the

second manner in which a suspect can be

re-questioned under [Edwards after the

right to counsel has been invoked.

Looking to the purpose of the rule in

Edwards, we note that the “surt has stated

that neither this nor the Miranda rule

16

from which it is derived, is required by

the Fifth Amendment. Rather these rules

are used as a prophylactic to protect the

Fifth Amendment right to be free from the

coercive effects of being in custody.

Miranda.

The Court has held that when an

accused reinitiates communication with the

police prior to being furnished counsel,

there is no violation of Edwards. In this

scenario nothing has occurred to indicate

that the coercive atmosphere of being in

custody has been dissipated in any manner.

However, when counsel has been furnished,

and consultation has taken place between

the suspect and counsel, the psychological

pressures of being in custody are greatly

reduced, if not completely removed.

Consultation with counsel restores the

equilibrium by removing the coercive

elements of custody. If @ suspect invokes

17

his right to counsel and is actually

furnished counsel, he would have no reason

to doubt that his request to have counsel

present would again be honored, if made,

at any reinitiated contact by the police.

Purther, after consultation with counsel,

there is much less likelihood that he will

be coerced into giving a statement against

his interests than before such consulta-

tion. Clearly he will have been given

the implications of

making statements that go far beyond that

required by Miranda. This is why the

court below found that Edwards allows

advice concerning

contact to be reinitiated by the police

after counsel has been made available to

the accused. The Mississippi Supreme

Court correctly held that the “bright-line

rule as to initiation does not apply.” JA

76.

18

The respondent does not suggest that

the police should be allowed repeatedly to

approach the suspect in an attempt to wear

down his resistance. Oregon v. Bradshaw,

at 1044, clearly condemned this particular

behavior by police. Minnick was not

repeatedly approached.

After a suspect has conferred with

counsel the police should be allowed to

reapproach him and inquire if he has

talked with his attorney. If the suspect

says yes, then the officer should give the

suspect proper Miranda warnings and ask if

he is now willing to speak with the

officer. If the answer is no, the officer

must then leave. If the answer is yes and

with the officer, any

the suspect talks

statement made can hen be used against

the suspect. It goes without saying that

the suspect can at any time during this

re-questioning invoke his rights and

19

conclude the interview by refusing to

answer further questions or requesting the

presence of his attorney. The invocation

of the right to silence or counsel must be

honored as the opinions of this Court

require. Obviously, the prisoner will

with confidence assert these rights if he

desires to curtail further questioning

since he knows the police had previously

honored his request prior to consulting

with counsel.

The question then becomes: under

what circumstances can this reapproach be

made. Of course, if the officer has

actual knowledge or objective indications®

that the suspect has, in fact, consulted

with counsel, the reapproach can be made.

5 These objective indications

include, but should not be limited to,

jail logs and oral or written reports of

fellow officers.

20

If these objective indicia do not exist,®

an officer should be allowed to reapproach

the suspect after a reasonable time and

make inquiry as to whether or not he had

spoken with counsel. If the answer is no,

then the contact must cease. All this is

stated with the full recognition that the

state must still show that any resulting

waiver was voluntarily, knowingly and

intelligently made. Edwarce, at 484;

Johngon v. Zexrbst, 304 U.S. 458 (> 38).

This procedure accommodates the language

of Edwards. It likewise would give the

Court a “bright-line” rule to govern this

activity which still permits appropriate,

non-coercive investigatory proceedings.

Alternatively, should the Court find

that the reasoning of the court below

t An officers constructive

knowledge of consultation with counsel is

discussed, infra.

21

@llowing reinitiation of questioning by

the police is flawed, then we must look to

the facts of the case gub iudice. These

facts show that Minnick actually invited

the reinitiation of further conversations

with the authorities and then freely and

voluntarily waived his right to have his

counsel present when he was interviewed by

Deputy Denham.

The record shows that petitioner was

arrested on August 22, 1986, by the Lemon

Grove, California, police on two outstand-

ing Mississippi

murder

warrants for capital

and a federal warrant for inter-

state flight to avoid prosecution. Later

thet same day he was transferred to the

Thereafter, the

Mississippi authorities were notified of

San Diego County jail.

Minnick's arrest.

On August 23, 1986, two special

agents of the Federal Bureau of Investiga-

iam

,

tion interviewed petitioner in the San

Diego County jail.

advised of his

Mixanda. JA 14.

was willing to answer

however, he stated that he did not want to

Petitioner was fully

rights

Minnick stated that he

according to

some questions;

sign anything. He told the agents to ask

whatever questions they wanted to ask.

After telling the agents of his escape

from the Clarke County jail and the events

leading up to the murders of Thomas and

Minnick hesitated. The agents

he did not

Lafferty,

reminded him that

answer questions

have to

without his attorney

present. Minnick told the agents to “Come

back Monday

He then stated that he would make a more

when I have a lawyer.”

complete statement with his lawyer

present. He again told the agents to come

see him on Monday as soon as he hid a

The FBI agents honored

23

lawyer. JA 16.

this request and ceased questioning him

about the crime.

After the FBI interview, Minnick was

furnished an attorney and consulted with

him. At the suppression hearing, Minnick

stated:

that

first day that he was lawyer

and he was appointed te me and

to not talk to and not

sign no waivers and not sign no

extradition rs or sign

anything and that he was going

to get @ court order to have any

of the police -- I advised him

of the FBI talking to me and he

advised me not to tell anybody

anything that he was going

restrict anybody talking to

i

outside of the San D Po

Department. [Emphasis added.

JA 46-47.

Late on Sunday, August 24, 1990,

Deputy Denham arrived in San Diego from

24

Mississippi. The next morning he went to

the San Diego County jail and asked to

interview Minnick. Minnick was brought

to an interview room inthe jail. The

first thing Denham did upon entering the

room with Minnick was to advise Minnick of

his Miranda rights.

Denham that he understood his rights.

Petitioner told

After being read the waiver form, petitio-

ner indicated that he understood that he

had the right to have an attorney present

at this interview. However, Minnick did

not inform Denham that he had been

interviewed by the FBI and that he had

been furnished an attorney, nor did he

request that his attorney be present at

the interview with Denham.’ JA 38, 56-57

7 Petitioner makes the assertion

that Denham hada duty to inquire as to

whether or not petitioner had requested or

been appointed counsel. The record

reflects that Denham apparently did just

that. At the hearing on the motion in

25

Minnick informed Denham that he was not

going to give a signed statement but that

he wanted to talk with him. JA 29.

The conversation between Minnick and

Denham began with Minnick telling Denham

it had been a long time since he had seen

him, and he had been expecting comeone

from Mississippi to show up in California

limine the following colloquy took place:

BY THE COURT: Did any of the

people in California that you

telked with say that the

defendant wanted an attorney or

advised the he would have an

attorney?

A. They advised that he would

have an attorney with him during

the extradition period whenever

one would be needed.

CROSS EXAMINATION BY MR. GATES:

Q. Do you know whether or not

an attorney had been appointed

for him?

A. No. I don't.

JA 56-57.

26

1S te a i

See «eee a ee

SINE ee A es me sw

looking for him. Minnick then asked

how his family and friends in

Denham

Mississippi were doing. Denham then asked

if Minnick “would tell [him] what happened

as far as them leaving the jail and what

took place the next day." JA 31. From

this chat about family and friends the

conversation moved to the subject of

Minnick's escape and then to the murders.

During this conversation Minnick told

Denham of his involvement in the murders

of Thomas and Lafferty.

The intent to convey to Denham his

participation in the murders is clearly

expressed in Minnick's testimony during

the hearing on his motion to suppress the

confession. ® Further, it is clear from

this same testimony that Minnick under-

5 This same passage answers any

tion arding petitioner's claim that

he told che San Diego County officers that

he did not want to see Denham.

27

stood his rights concerning self in-

crimination. The following colloquy took

place between the prosecutor and Minnick

at trial:

does not freely and voluntaril

ive a statement to an officia

t is completely inadmissible--

Q. Mr. Minnick, you're saying

that you didn't even give the

statement. Which is it? did

Q. The truth of the matter is

you know what your rights are

and you are informed of your

rights and you understood your

rights, didn't you?

A. I understood my rights and

that's exactly why I told them

that I wanted a lawyer and they

was getting no kind of anything

out of me for anything except

when I talked to Jim Denham and

stated the exact moment and the

happening of the escape from the

Clarke County Jail.

Q. But, you continued to talk

on to Mr. Denham about what

happened in the murder, didn't

you?

A. You only have that down on

paper. I'm denying that

completely. I have already

denied what he has down on paper

because it's written up as

"Robert Minnick advised so and

so, Robert Minnick advised so

and so", and there's no--nothing

of anything to go along with it

especially a signature and it

states in one of the Mississippi

law books that if one person

28

you give the statement or did

you not give the statement?

A. No comment. I stand on the

Fifth. [Emphasis added.)

JA 52-53.

Minnick then refused to answer any further

questions about his statement asserting

his Fifth Amendment right against self-

incrimination, refusing even to admit that

he made any further statement to Denham. 9

JA 53-55.

9 It is apparent from the record

that Minnick took great delight in second

guessing his lawyers and expounding on his

knowledge of t law. His familiarity

with the law is apparent from statements

made about former attorneys. He quipped

that his lawyer on an earlier conviction

was “not any good." He boasted that

“(a)fter arriving at prison and studying

law for my own person in the law library”

he could have represented himself before 4

jury and gotten acquitted of the charges.

JA 51.

29

Denham 's testimony during the

suppression hearing reveals that he had no

knowledge at the time of the

that

personal

interview Minnick had been

interviewed by the FBI nor that Minnick

had invoked his right to counsel during

that interview. JA 37-3810

Denham

testified that Minnick never asked to

speak to an attorney while he was being

questioned. JA 56. Denham stated that he

did not know that an attorney had been

appointed for Minnick at the time he

10 Minnick contends that Denham

had a copy of the FBI interview report

prior to the time he interviewed the

petitioner. This fact is refuted by the

transcript. Denham's interview took place

at 6:40 a.m. on August 25, 1986. JA 10,

28. The notations on the FBI report

reflect that the report was dictated on

August 24, 1986, and not transcribed until

August 25, 1986. This transcript could

hardly have been in Denham's hands prior

to 6:40 in the morning. Purther, Denham

was informed of the Saturday FBI interview

with petitioner only after his Monday

interview. JA 37.

30

questioned him, and Minnick did not so

inform him. JA 56-57.

Respondent recognizes

report states that Minnick told the agents

Monday when he had an

he would make a4 more

that the FBI

to come back

attorney and that

complete statement with his attorney

However, we also note that

present.

Minnick stated in his

suppression hearing that

Therefore, the fact

testimony at the

he intended to

talk with Denham.

that counsel was not present when Denham

interviewed petitioner cannot be deter-

minative of the issue. Using the

reasoning of the Court in Michigan y.

Harvey, 494 U.S. __, 110 S.Ct. 1176, 108

L.Ed. 293 (19390), we submit that petitio-

ner exercised his prerogative to waive his

right to counsel without further consulta-

tion with or ~otice to his attorney. The

Court stated in Harvey:

31

In other cases, we have

explicitly declined to hold that

a defendant who has obtained

counsel cannot himself waive his

right to counsel. See Brewer,,

430 U.S., at 405-406 ("The Court

of Appeals did not hold, nor do

we, that under the circumstances

of this case Williams could not,

without notice to counsel, have

waived his rights under the

Sixth and Fourteenth Amendments.

It only held, as we do, that he

did not"; Estelle v. Smith, 451

("we do not hold that respondent

was precluded from waiving this

constitutional right [to

counsel]. . .. No such waiver

has been shown, or even alleged,

here"). A defendant's right to

rely on counsel as a “medium”

between the defendant and the

State attaches upon the

initiation of formal charges,

Moulton, 474 U.S. at 176, and

respondent's contention that a

defendant cannot execute a valid

waiver of the right to counsel

without first speaking to an

attorney is foreclosed by our

decision in Patterson.

Moreover, respondent 's view

would render the prophylactic

rule adopted in Jackson wholly

unnecessary, because even

waivers given during defendant-

initiated conversations would be

per se involuntary or otherwise

invalid, unless counsel were

first notified.

32

Although a defendant may

sometimes later regret his

decision to speak with police,

the Sixth Amendment does not

disable a criminal defendant

from exercising free will. To

hold that a defendant is

inherently incapable of

relinquishing his right to

counsel once it is invoked would

be "to imprison a man in his

privileges and call it the

Constitution." Adams v. United

States ex rel. McCann, 317 U.S.

269, 280 (1942). [Emphasis the

Court's. ]

108 L.Ed.2d at 304.

While Harvey is a Sixth Amendment case,

the reasoning is compatible with the

situation at bar.

This is not a case where petitioner

was being badgered by the police to change

his mind about waiving his rights to

counsel prior to cc»nsel being fur-

nished.11 Quite the contrary, Minnick

11 As noted above, this type

behavior on the part of the police has

been condemned this Court in Edwards

and Bradshaw, 462 U.S. at 1044.

33

invited the authorities to come and speak

with him again, and Deputy Denham accepted

his invitation.

Petitioner's argument that he

misunderstood his rights and therefore did

not voluntarily waive them is also

unavailing. 22 The record reflects that

petitioner refused to sign a waiver of his

rights, refused to sign the statement he

made and even asked if the interview was

being taped. Petitioner here argues that

these facts indicate that his misund-

erstanding of his rights ramoved the free

and voluntary character of his waiver of

In Connecticut v. Barrett, 479

U.S. 523 (1987), this Court found a

counsel.

similar argument unpersuasive. The Court

said:

We also reject the conten-

tion that the distinction drawn

12 See footnote 9, supra.

34

Barrett between oral and

written statements indicates an

understanding of the con-

sequences so incomplete that we

should deem his limited invoca-

tion of the right to counsel

effective for all purposes.

This suggestion ignores Bar-

rett's testimony--and the

finding of the trial court not

questioned by the Connecticut

Supreme Court--that respondent

fully understood the Miranda

warnings. These warnings, of

course, made clear to Barrett

that "[{i)f you talk to any

police officers, anything you

say can and will be used against

you in court.” App. at 48A.

The fact that some might find

Barrett's decision illogical is

irrelevant, for we have never

“embraced the theory that a

defendant's ignorance of the

full consequences of his

decisions vitiates their

voluntariness." Elstad, 470

U.S. at 316; Colorado v. Spring,

post, p 564 (1987). [Footnote

omitted. }

479 U.S. at 530.

Petitioner clearly stated in the suppres-

sion hearing that he intended to talk with

Denham and tell him about the escape. JA

52. It is apparent that he thought he

35

could tell the whole story of his nefari-

ous deeds and then decide which parts

could be used against him. Br not signing

the waiver of rights form, by refusing to

allow the interview with Denham to be

recorded, by refusing to sign a statement,

and by pleading his Fifth Amendment right

against seif-incrimination at the suppres-

sion hearing, Minnick thought he could

restrict the state's use of his statement

to that portion dealing with the escape

from the Clarke County jail. This misun-

derstanding, if it was one, led Minnick to

make inculpatory statements to Denham

regarding the murders of Thomas and

Lafferty in Mississippi. However, this

does not destroy the voluntary character

of Minnick's whole statement. The full

statement could properly be used against

him. Barrett, supra.

36

The respondent acknowledges that the

rule is that the knowledge of one officer

in an agency concerning a defendant's

invocation of his right to counsel or

silence is imputed to everyone who deals

with that defendant. United States v.

Scalf, 708 F.2d 1540, 1544 (10th Cir.

1983) (Once a suspect has invoked the

of that

right to counsel, knowledge

request is imputed to all law enforcement

officers who subsequently deal with the

suspect.) This rule is often draconian in

its application, especially in a situation

as here where officers of three separate

sovereigns are involved. Here the record

does not reflect whether the FBI Agents

told the San Diego County jailers that

Minnick invoked his right to counsel. It

is clear that Denham had no actual

knowledge of the invocation of the right

to counsel, and he was not informed by the

37

San Diego officers or the FBI of this

fact. Only after his meeting with Minnick

and only after receiving the FBI report

did Denham become aware of the prior

invocation of the right to counsel.

However, Denham acted within the law,

having read the Miranda rights to Minnick,

he followed the procedures as outlined in

that case. It is clear from Minnick's

testimony that he wanted to speak with

Denham in spite of this invocation of the

right to counsel made to the FBI agents.

Conversely, if the state is to be

bound by the imputation of the knowledge

of invocation of rights of which it has no

actual knowledge, petitioner's invitation

to the FBI to return and talk with him

must also be imputed to the state. Cf.

Scott v. United States, 436 U.S. 128, 137-

38 (1978) (The fact that the officer does

not have the state of mind hypothecated by

38

the reasons which provide legal justifica-

tion for the officer's action does not in-

validate the action taken so long as the

circumstances, viewed objectively, justify

that action.) The FBI agents had actual

knowledge of petitioner's invitation to

return on Monday; thus, this knowledge is

imputed to Denham. Therefore, Denham's

conversation with Minnick was invited by

petitioner through the inverse of the same

imputation rule. Petitioner initiated the

conversation with Denham when he invited

the FBI to return on Monday.

Edwards allowed Denham to reapproach

Minnick after he had been allowed to

consult with counsel and inquire whether

or not he would submit to further ques-

tioning. Minnick could have told Denham

that he would not talk with him or that he

wanted his counsel present, both rights

that he knew that he had. Therefore, the

39

Mississippi Supreme Court correctly found

that the contact Denham made with Minnick

was permissible under Edwards, and the

waiver of the right to counsel at that

point was free and voluntary.

THE SIXTH >MENDMENT CLAIM

Petitioner did not raise a claim

under the Sixth Amendment in his petition

for certiorari; therefore, this Court

should not consider this claim presented

for the first time in the Brief for

Petitioner.13 This Court held in Genera]

Talking Pictures Corporation v. Western

Electric Company, 304 U.S. 175 (1937):

One having obtained a writ of

certiorari to review specified

questions is not entitled here

to obtain decision on any other

13 In his petition for certiorari

petitioner stated, "In the context of the

Sixth Amendment right to counsel, this

question would obviously not arise."

Petiticn at 11. Clearly the petition for

certiorari was concerned only with the

Fifth Amendment claim.

40

issue. Crown Cork & Seal Co. v.

Ferdinand Gutmann Co.__decided

this day [304 U.S. 159, ante].

Petitioner is not here entitled

to decision on any question

other than those formally

presented by its petition for

the writ.

304 U.S. at 179.

Likewise, the rules of this Court do not

allow a party to raise in the brief on the

merits ". . additional questions or

change the substance of the questions

already presented" in the petition for

writ of certiorari. Sup. Ct. Rule,

24.1(a). Respondent submits the Sixth

Amendment question was not presented in

the petition for writ of certiorari; and,

therefore, the question should not be

reached or addressed.

While still maintaining that petitio-

ner's Sixth Amendment claim was not

presented in the petition for certiorari

and therefore is not before the Court,

41

respondent feels compelled to address the

Claim alternatively.

The respondent would first submit

that petitioner's right to counsel had not

attached under federal law at the time he

gave his incriminating statement. We

recognize that petitioner relies heavily

on the language in the opinion below

stating:

Minnick argues further that

his Sixth Amendment right to

counsel under Mississippi law

had attached by the time of the

Denham interview since warrants

for his arrest had issued; the

state does not dispute this.

See, e.g., Livingston v. State,

519 So.2d 1218, 1221 (Miss.

1988).

551 So.2d at 83, JA 76.

The key phrase here is "under Mississippi

law." The Mississippi Supreme held in

Livingston v. State, 519 So.2d 1218 (Migs.

1988), that the right to counsel in the

Sixth Amendment sense attaches at the time

42

an arrest warrant is issued. This holding

in Livingston is based on Miss. Code Ann.

§ 99-1-7 (1972) and the opinion in

Cannaday_v. State, 455 So.2d 713 (Miss.

1984). Miss. Code Ann. § 99-1-7 (1972)

reads:

A prosecution may be

commenced, with the meaning of

section 99-1-5 by the issuance

of a warrant, or by binding over

or recognizing the offender to

compel his appearance to answer

the offense, as well as by

indictment or affidavit.

When we look to Miss. Code Ann. Section

99-1-5 (1972) we find that it is a statute

dealing with statute of limitations for

prosecutions for certain crimes. This

does not in any manner involve the Federal

Sixth Amendment right to counsel. Even

more revealing is the language of the

court below in Cannaday. The court held:

Secondly, defense relies

upon the Sixth Amendment to the

United States Constitution

providing that "(Ijyn all

43

criminal prosecutions, the

accused shall enjoy the right to

- « « have the assistance of

counsel for his defense." The

Sixth Amenduent rights are

applied to state prosecutions

through the Fourteenth Amendment

of the United States Constitu-

tion. Watson v. State, 196

So.2d 893 (1967), Powell v.

Alabama, 287 U.S. 45, 53 S.Ct.

55, 77 L.Ed. 158 (9132).

Mississippi jurisprudence

has the same constitutional, and

statutory provisions, and rules

guaranteeing these same rights.

Mississippi Constitution Art. 3,

Section 26 provides that "(I)n

all criminal prosecutions the

accused shall have a right to be

heard by himself or counsel, or

both, . .. and he shall not be

compelled to give evidence

against himself; ..." Also,

see Mississippi Code Annotated

section 99-15-115 (1972) and

Mississippi Criminal Rules of

Procedure, Rule 1.03, 1.05.

Since the Mississippi

jurisprudence provices an

adequate and equal basis for

these constitutional rights, we

, notwithstanding

the fact that reference is made

to federal cases. The federal

cases are used for the purpose

of guidance, but Mississippi

jurisprudence compels _ the

44

. Michigan v. Long, 463

U.S. 1032, 103 S.Ct. 3469, 77

L.Ed.2d 1201 (1983). [Emphasis

adced. }

455 So.2d at 722.

Finally, the citation of Page v. jtate,

495 So.2d 436 (Miss. 1986) likewise falls

short of supporting petitioner's position.

Page clearly rejects federal law as the

basis of its decision. In footnote five

the Court states:

We are very much aware of

the fact that a number of recent

federal casee have held that the

right to counsel secured by che

Sixth Amendment to the Constitu-

tion of the United States is

available only after the

initiation of judicial criminal

proceedings, i.e., indictment

and arraignment. - « « {ie

reject the federal approach and

for purposes of today's decision

rely exclusively upon state Jaw.

{Emphasis added. }

495 So.2d at 440.

Since the Mississippi Constitution does

not so conveniently divide the paraliel

rights found in the Fifth and Sixth

45

Amendments of the federal constitution it

is often easier to speak of the state

constitutional right with reference to the

corresponding federal right. Clearly that

is what was done here by the state cu rt

as the Sixth Amendment right to counsel

had not attached according to federal

law.14 Mississippi law enforcement

officials and prosecutors must deal with

this broader reading of the right to

counsel under state law. This Court has

held that a state court is free to read

its own constitution more broadly than

this Court reads the United States

City of Mesquite v.

Aladdin's Castle, Inc,, 455 U.S. 283

(1982). However, a broader reading by a

Constitution.

14 Likewise, the admission that the

Sixth Amendment right had attached, found

in the respondent's brief on direct appeal

to the court below, is prefaced by the

statement “under Mississippi law." JA 68.

46

state court is not binding on this Court.

Further, this Court is not bound by a

state law interpretation of federal law

that conflicts with established precedent

of this Court. This Court is the final

arbiter of when the Sixth Amendment right

to counsel attaches. Coleman v. Alabama,

399 U.S. 1, 9 (1970).

We know that the federal Sixth

Amendment right attaches when adversary

proceedings are

Kriby v.

Illinois, 496 U.S. 682, 689 (1972)

In Mississippi an

judicial criminal

initiated by the state.

(plurality opinion).

arrest warrant is issued in an ex parte

proceeding as it is in the federal system.

Miss. Code Ann. §99-3-21 (1972). The

issuance of an arrest warrant is not a4

commitment by the state to prosecute the

person arrested. The prosecutorial forces

of the State of Mississippi are not

47

brought to bear on petitioner simply by

the issuance of an arrest warrant. He is

not being confronted by the full panoply

of the prosecutorial system at this stage

of the proceedings. The issuance of an

arrest warrant has never been held to be

the trigger that activates the federal

Sixth Amendment right to counsel. United

States v. Gouveia, 467 U.S. 180, 190

(1984). Minnick's federal Sixth Amendment

right to counsel had not attached at the

time that Denham questioned him as the

mere issuance of an arrest warrant is

insufficient to implicate that right.

There has been no violation of the

federal constitution cognizable by this

Court.25

15 Even if the Sixth Amendment were

somehow found to apply to this case, the

trial court found that Minnick had

knowingly, intentionally and voluntarily

relinquished his right to counsel. This

finding was upheld by the court below.

48

CONCLUSION

For the above and foregoing reasons

the decision of the Mississippi Supreme

Court affirming the convictions and

sentences of death in this case should be

affirmed.

Respectfully submitted,

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI

MARVIN L. WHITE, JR.

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

August 27, 1990

551 So.2d at 85, JA 80. This court has

held that informing a suspect of his

rights according to Miranda are sufficient

to place him on notice of his Sixth

Amendment right to counsel. If an indictee

then waives his right to counsel after

being informed of these rights, that

waiver is sufficient to allow use of any

statement he makes so long as it is free

and voluntary. Patterson v. Illinois, 487

U.S. at 292, 299-300. Even where counsel

has been obtained by a suspect, the right

to have counsel present can be waived.

The court below properly found that

Minnick waived his Sixth Amendment rights

under state law.

49

CERTIFICATE OF SERVICE

I, Marvin L. White, Jr., Assistant

Attorney General for the State of

Mississippi, do hereby certify that I have

this day caused to be mailed, via United

States Postal Service, first-class postage

prepaid, three (3) true and correct copies

of the foregoing Brief for Respondents to

the following:

Floyd Abrams, Esquire

Cahill Gordon & Reindel

80 Pine Street

New York, New York 10005

Clive A. Stafford Smith

Southern Prisoner's Defense

Committee

185 Walton Street, N.W.

Atlanta, Georgia 30303

This the 27th day of August, 1990

50