# Respondents Brief — Minnick v. Mississippi

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 146

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0350%3A07. Public record. Not legal advice.