Petitioners Brief — Connecticut v. Barrett

. Supreme Const, U.S,

No. 85-899 ~ FILED

JUL 24 1986

In Che JOSEPH F. SPANIOL, JR.

CLERK

Supreme Court Of Che United-Stater

OCTOBER TERM, 1986

STATE OF CONNECTICUT,

Petitioner.

V.

WILLIAM BARRETT,

Respendent.

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF CONNECTICUT

BRIEF OF THE PETITIONER

JULIA DiCOCCO DEWEY

Assistant State’s Attorney

State of Connecticut

Division of Criminal Justice

340 Quinnipiac Street

Wallingford, Connecticut 06492

Counsel of Record

VO ~y

Sas

QUESTION PRESENTED

Is the Fifth Amendment privilege against self-

incrimination abridged when a defendant, although reluctant

to sign a written statement in the absence of counsel, never-

theless gives a knowing and voluntary oral statement to

investigating officers?

LIST OF ALL PARTIES

The sole petitioner is the State of Connecticut. The sole

respondent is William Barrett.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................

LIST OF PARTIES ....................0..0.000.. ii

TABLE OF CONTENTS ......................... iii

TABLE OF AUTHORITIES...................... iv

OPINION BELOW ............................ 1

JURISDICTION .....0 20000. 0e cece cece eee. 2

CONSTITUTIONAL PROVISIONS ................ 2

STATEMENT OF THE CASE..................... 3

SUMMARY OF ARGUMENT..................... 7

ARGUMENT ........0.. 0.0000. 0 ccc c cece eee ee. 4

THE RESPONDENT NEVER ARTICULATED

A DESIRE FOR COUNSEL AT HIS INTERRO-

GATION. CONSEQUENTLY, INVESTIGATING

OFFICERS PROPERLY ALLOWED THE RE-

SPONDENT TO NARRATE HIS VERSION

OF THE EVENTS AT ISSUE.................. 8

A. Barrett’s Oral Statements Were Voluntary ..... 8

B. The Respondent’s Limited Invocation Of

Rights Was Scrupulously Honored............ 9

C. The Rule Enunciated By The Connecticut

Supreme Court Alters The Balance Inherent

In Miranda ...................0 000000004. 11

CONCLUSION ......................200 0000004. 16

TABLE OF AUTHORITIES

Cases: Page(s)

Adams v. United States ex rel. McCann, 317 U.S. 269

RS ee eee ee we eres 11

Bradburn v. McCotter, 786 F.2d 627 (5th Cir.

REBT ES ee SION ES Pirate By yatta a 10

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

Faretta v. California, 422 U.S. 806 (1975) ............. 9

Harris v. Riddle, 551 F.2d 936 (4th Cir.), cert. denied,

ode ee ee elon e * 14

Johnson v. Zerbst, 304 U.S. 458 (1938) ............... 9

Klinger v. United States, 409 F.2d 299 (8th Cir.), cert.

denied, 396 U.S. 859 (1969) .................... 14

Michigan v. Jackson, 106 S.Ct. 1404 (1986) .......... 11

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

Michigan v. Tucker, 417 U.S. 486 (1974) ........... 9,14

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

Moran v. Burbine, 106 S. Ct. 1135 (1986)... . 9, 11, 13, 14

Nash v. Estelle, 597 F.2d 513 (5th Cir.) (en banc}, cert.

denied, 444 U.S. 981 (1979) .................... 14

North Carolina v. Butler, 441 U.S. 369 (1979) ...... 9,14

Oregon v. Elstad, 105 S.Ct. 1285 (1985) ............. 14

iv

TABLE OF AUTHORITIES (continued)

Cases: Page(s)

Pettyjohn v. United States, 419 F.2d 651 (DC. Cir.

1969), cert. denied, 397 U.S. 1058 (1970) ......... 14

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ....... 9

Smith v. Illinois, 105 S.Ct. 490 (1984)............ 11, 15

State v. Barrett, 197 Conn. 50, 495 A.2d 1044

les Ss wo aa's Ace ee RE EEE ORS passim

United States v. Cooper, 499 F.2d 1060 (DC. Cir.

TREE EZ 5 BAG SN, NAT 8 ORE A A a RC Sr 14

United States v. Eirin, 778 F.2d 722 (11th Cir.

ENE LIBS Ste ois, Ye ea ee aA 10

United States v. Frazier, 476 F.2d 891 (DC. Cir.

tg a ES gS ly Seb Ewe On Se» ROD a 14

United States v. Gardner, 516 F.2d 334 (7th Cir.),

cert. denied, 423 U.S. 861 (1975)........... —

United States v. Jardina, 747 F.2d 945 (5th Cir.

1984) sy tee Bee Nee ph er Ei FP + SCs ND Se ne 10

United States v. McDaniel, 463 F.2d 129 (5th Cir.

1972), cert. denied, 413 U.S. 919 (1973) .......... 14

United States v. McNeil, 433 F.2d 1109 (DC. Cir.

er eee enn a 1s ea 14

United States v. Stevens, 445 F.2d 304 (6th Cir.), cert.

denied, 404 U.S. 945 (1971) ............0..0...... 14

United States v. Washington, 431 U.S. 181 (1976)..... 14

TABLE OF AUTHORITIES (continued)

Cases: Page(s)

Wyrick v. Fields, 459 U.S. 42 (1982) ................ 10

Constitution and Statutes:

United States Constitution

ee ee passim

United States Constitution

Fourteenth Amendment .................. passim

vi

No. 85-899

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1986

STATE OF CONNECTICUT,

Petitioner,

V.

WILLIAM BARRETT,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF CONNECTICUT

BRIEF OF THE PETITIONER

OPINION BELOW

The opinion of the Connecticut Supreme Court is reported

at 197 Conn. 50, 495 A.2d 1044 (1985), and is reprinted in

Appendix A to the Petition, pages 1 A-12A. This Court’s grant

of certiorari is reported at 106 S.Ct. 1967 (1986).

JURISDICTION

The Connecticut Supreme Court announced its decision

on July 30, 1985. The State of Connecticut filed its motion

to reargue on August 9, 1985, which motion was denied on

September 24, 1985. The Petition for Writ of Certiorari was

timely filed on November 22, 1985 and was granted by this

Court on May 19, 1986. This Court’s jurisdiction is based on

28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

No person .. . shall be compelled in any criminal

case to be a witness against himself... .

The Fourteenth Amendment to the United States Constitu-

tion provides in pertinent part:

[Nor] shall any State deprive any person of life, liberty,

or property, without due process of law. .

STATEMENT OF THE CASE

In New Haven, Connecticut on the evening of October

23, 1980, the victim, M.J., was waiting for a bus.’ While

waiting, she was offered a ride by Robert Artis and the Respon-

dent, William Barrett, both of whom she had known for

approximately eight years. M.J. accepted Barrett's offer.

Rather than drive M.J. to her destination, Barrett and

Artis drove to a secluded area in Wallingford, Connecticut.

There M.J. was repeatedly sexually assaulted by both men.

During this attack, M.J. sustained, inter alia, facial and wrist

injuries.” She did manage to scratch Barrett.* M.J. also was

successful in hiding diverse evidence of the sexual assault in

the rear seat of Barrett’s vehicle.‘

Upon returning to New Haven, the victim immediately

advised family and police officials of the assault, naming both

assailants.° Barrett and Artis were taken into custody later

that evening by the New Haven Police Department. Upon

apprehension, Barrett attempted to conceal his identity.® At

that juncture, the arresting officers advised Barrett of his

Miranda rights.’

Because the sexual assault occurred in Wallingford, per-

sonnel from that town transported Barrett and Artis to the

Wallingford Police Station. The suspects arrived at the police

' Unless otherwise noted, the statement of the case derives from the opin-

ion of the Connecticut Supreme Court.

* ‘Trial transcript (Tr.) at 9.

3 at 14.

“Ty. at 25-26. This evidence included her undergarments, loosened car

upholstery buttons and M.J.'s initials scratched in the car seat.

. Tr. at 261.

Str at 231.

Ty. at 234, 255, 298.

station's processing room at approximately 5:30 a.m. There,

Officer Peter Cameron read Barrett the Miranda rights from

a standard acknowledgement form. Barrett signed and dated

that form.* Barrett then made several telephone calls; the offi-

cers did not know either the purpose or the recipients of those

calls.

Cameron and Officer John Genovese led Barrett to a

police interrogation room where Genovese read Barrett the

Miranda rights for a third time. Barrett once again signed

and dated an Acknowledgement of Rights form.'® Cameron

then asked Barrett ‘‘if he would like to make any kind of state-

ment to the police regarding the incident with which he was

charged.’’'! Barrett responded that “‘[hje would give no writ-

ten statement to the police; nothing in writing; however, he

would be more than happy to talk about it. He had no prob-

lem with that’’!* The interrogating officers testified that

Barrett’s subsequent narrative statement appeared to be

voluntary.'?

Barrett proceeded to tell the officers his account of the

encounter with M.J. His statement was in the nature of a nar-

rative, punctuated with occasional questions from Cameron

and Genovese aimed at clarifying certain details. Barrett

answered some of these questions; he ignored others. "‘

8 Joint Appendix (J.A.) at 6A-8A, 9A.

® JA. at 21A, 98A.

10 7A. at 6A, 9A, 30A, 31A.

11 JA. at 9A, 21A.

12 Ig. During cross-examination, Officer Cameron testified that Barrett

wanted to consult with counsel before signing a written statement.

13 7 A. at 26A.

147A. at 24A.

Later that morning, Lieutenant Murt Howard once aga.

advised Barrett of the Miranda rights; Barrett responded

orally that he understood them.'° Asked by Howard whether

he would give police a written statement about his version

of the encounter with victim, Barrett replied that ‘‘he was will-

ing to talk about it verbally but he did not want to put

anything in writing until his attorney came.’'® A second nar-

rative proceeded much like the first, with Barrett controlling

the scope of the interview.'”

At a pre-trial suppression hearing Barrett contended he

had neither comprehended or relinquished his Miranda

rights.'* He did not claim that he had requested counsel for

his oral statement. At the conclusion of the suppression hear-

ing, the trial court ruled that Barrett’s actions were evidence

Barrett totally comprehended the import of his rights and

had voluntarily waived them. It therefore denied Barrett's

Motion to Suppress and permitted the prosecution's use of

Barrett’s oral statements.

The Respondent did not testify at the suppression hear-

ing.'®

On appeal Barrett raised for the first time the argument

that he had invoked his right to counsel prior to the police

18 JA. at 31A-32A, 39A, 48A-49A.

16 TA. at 44A.

17 JA. at 56A.

18 Ty at 590.

19 The Respondent did testify at trial, offering basically the same excul-

patory version of events as he had related to the investigating officers.

He further volunteered that he never attempted to contact an attorney

prior to his interrogation. Instead he called his mother. (J.A. at 117A,

128A) The Respondent denied testimony that he was unwilling to make

a written statement; he testified that the officers never requested any

written statement. (Tr. at 858, 889, J.A. at 119A, 124A, 137A) Although

the Respondent at trial complained of medical impairment during his

interrogation, he admitted that he received and understood his rights.

(J.A. at 125A, i30A)

interrogation. He argued on appeal that his oral statements

were therefore involuntary. The Connecticut Supreme Court

found the admission of the statements was error, holding:

The defendant’s refusal to give a written statement

without his attorney present was a clear request for

the assistance of counsel to protect his rights in his

dealings with the police. Fare v. Michael C,, 442 US.

707, 719, 99 S.Ct. 2560, 61 L.Ed.2d 197, reh. denied,

444 US. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979).

Such a request continues to be constitutionally effec-

tive despite the defendant’s willingness to make oral

statements. We conclude, therefore, that the defen-

dant did invoke his right to counsel under the Fifth

and Fourteenth Amendments.

Petition at 8A.

On May 19, 1986, this Court granted the State of Con-

necticut’s petition for a writ of certiorari to consider whether

a criminal suspect’s reply to police that he is willing to discuss

orally the matter under investigation, but that he will not give

a written statement without having an attorney present,

makes unconstitutional the use of any oral statement

thereafter given.

SUMMARY OF ARGUMENT

In State v. Barrett, 197 Conn. 50, 495 A.2d 1044 (1985),

the Connecticut Supreme Court applied a rigid rule which

required all questioning to cease upon a suspect’s mention

of the word “‘attorney.” This inflexible rule miscontrues the

holdings of Miranda v. Arizona, 384 U.S. 436 (1966), and

Edwards v. Arizona, 451 U.S. 477, reh. denied, 452 U.S. 973

(1981), ascribing a talismatic quality to the word “‘attorney”’

in a situation where a suspect’s oral statement is clearly

voluntary.

The Respondent, faced with a choice of options, elected

to speak. with police and defer Jogal epresentation. This choice

should not be construed as an assertion of the right to counsel

at oral interrogation. It was simply a selective waiver of

representation.

Through its arbitrary analysis of the facts presented, the

Connecticut Supreme Court adopted a paternalistic approach

to criminal interrogation. The decision ignores the balance

created by Miranda and Edwards between the interests of law

enforcement and the right of an individual to be free from

coerced self-incrimination.

ARGUMENT

THE RESPONDENT NEVER ARTICULATED

A DESIRE FOR COUNSEL AT HIS INTERRO-

GATION. CONSEQUENTLY, INVESTIGATING

OFFICERS PROPERLY ALLOWED THE RE-

SPONDENT TO NARRATE HIS VERSION OF

THE EVENTS AT ISSUE

A. Barrett’s Oral Statements Were Voluntary

At the Wallingford Police Station Darrett, fully cognizant

of his constitutional rights, determined that it was in his best

interests to waive those rights for a limited purpose. Conse-

quently, he gave an oral narrative of the events in question.

The oral statement was unconditionai. Barrett did, however,

refuse to give a written statement without an attorney present.

In ruling on the question presented below, the Connect-

icut Supreme Court applied a rigid rule which required all

questioning to cease upon a suspect’s mention of the word

“attorney.” Relying on Miranda v. Arizona, 384 U.S. 436 (1966)

and Edwards v. Arizona, 451 U.S. 477, reh. denied, 452 U.S.

973 (1981),”° the Connecticut Supreme Court concluded that

Barrett’s refusal to reduce his oral statement to writing

without the assistance of counsel was a ‘‘request for counse!l”’

under Edwards which mandated exclusion of all oral

statements. This conclusion misconstrues the holdings of

Miranda and Edwards, and the policies underlying them, by

ascribing an unwarranted talismatic quality to the use of the

word ‘‘attorney’’ by a suspect who is subsequently

interrogated.

This Court has held repeatedly that the test for determina-

tion of a valid waiver for the Fifth Amendment right is not

20 The Connecticut Supreme Court specifically disavowed any reliance on

state law. 197 Conn. at 54 n.3.

mechanical, but requires an examination of the totality of cir-

cumstances in each particular case. See Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973). This Court has never

isolated a defendant from his own intelligent and voluntary

decisions about a criminal case. Faretta v. California, 422 U.S.

806, 835 (1975); Michigan v. Mosley, 423 U.S. 96, 109 (1975).

Rather, the Court has set certain standards by which a trial

court can measure the validity of a waiver of the Fifth Amend-

ment privilege against self-incrimination. Johnson v. Zerbst,

304 U.S. 458 (1938). The test for voluntariness is not whether

there has been literal compliance with the procedure set forth

in Miranda; see Michigan v. Tucker, 417 U.S. 433, 444 (1974);

but whether the waiver of rights was made “with a full

awareness both of the nature of the right being abandoned

and the consequences of the decision to abandon it.’ Moran

uv. Burbine, 106 S.Ct. 1135, 1141 (1986). See also North Carolina

v. Butler, 441 U.S. 369, 374-75 (1979). The issue before the

trial court was whether Barrett’s free choice was substantially

impaired. Despite the Connecticut Supreme Court’s cbfusca-

tion of issues, the same question is presented to this Court.

B. The Respondent’s Limited Invocation Of Rights

Was Scrupulously Honored

In the present case William Barrett was an educated, intel-

ligent individual capable of articulating a desire for immediate

representation. He chose not to assert this right. Instead,

Barrett deferred invocation of his right to legal representa-

tion until such time as the Wallingford police investigators

attempted to obtain a written statement. The Petitioner

recognizes that something short of 2 formal or direct request

foi counsel might be construed as an assertion of the righi

to counsel. However, in the present case Barrett never arti-

culated a request for counsel during interrogation. Conse-

quently, his statements were admissible.

Barrett, faced with a choice of opticns, elected to speak

with the po’ice and defer representation. This was his right.

Having stated without the slightest hesitancy that he would

answer questions, Barrett in no way invoked his right to

counsel for that oral interrogation. See, e.g., Bradburn v.

McCotter, 786 F.2d 627 (5th Cir. 1986); United States v. Eirin,

778 F.2d 722 (11th Cir. 1985); United States v. Jardina, 747

F.2d 945 (5th Cir. 1984). Instead, he selectively waived his right

to representation, choosing to limit that protection to the exe-

cution of a legal document. This type of selective representa-

tion has been recognized by this Court. Wyrick v. Fields, 459

U.S. 42, 47 (1982).

In Wyrick v. Fields, the defendant, who was represented

by counsel, agreed to waive the presence of his attorney dur-

ing a polygraph test. At the conclusion of the test, the exam-

iner told Fields that the polygraph indicated some deceit and

suggested Fields explain his answers. Fields then made several

incriminatory statements.

This Court recognized the validity of "ield’s limited

waiver of representation, holding:

Fields waived not only his right to be free of contact

with the authorities in the absence of an attorney, but

also his right to be free of interrogation about the

crime of which he was suspected. Fields validly

waived his right to have counsel present at ‘‘post-

test”’ questioning, unless the circumstances changed

so seriously that his answers no longer were volun-

tary, or unless he no longer was making a ‘“‘knowing

and intelligent relinquishment or abandonment”’ of

his rights. 451 U.S. at 482.

459 at 47. This Court concluded that any expansion of the

rule in Edward v. Arizona was an unreasonable interference

with police interrogation. Id. at 49.

10

C. The Rule Enunciated By The Connecticut

Supreme Court Alters The Balance Inherent

In Miranda

The purpose of Miranda v. Arizona is to ‘‘assure that the

individual’s right to choose between speech and silence

remains unfettered throughout the interrogation process.”

Miranda, 384 U.S. at 469. The requisite warnings gave indi-

viduals the opportunity knowingly and intelligently to waive

certain rights; Jd. at 479. Rather than imprison a suspect in

his privileges; Adams v. United States ex rel. McCann, 317

U.S. 269, 280 (1942); Miranda provides suspects with the

freedom necessary to make an informed choice, depending

upon their own perceptions of their best interests.

The right to counsel enunciated in Miranda is extremely

narrow. This Court has never required counsel’s attendance

at custodial interrogation. Instead Miranda merely confers

upon a defendant a “‘right to counsel,’ but only when such

counsel is requested during custodial interrogation. Michigan

uv. Jackson, 106 S.Ct. 1404, 1407 (1986). See also Moran v. Bur-

bine, 106 S.Ct. 1135, 1142 n.1 (1986).

Similarly, the protection of the right to counsel provided

by the Edwards decision is applicable only to situations where

“an accused, . . . having expressed his desire to deal with

police only through counsel, is not subject to further inter-

rogation. . ”’ Edwards, 451 US. at 484-85. See also Smith

v. Illinois, 105 S.Ct. 490, 492 (1984) (per curiam).

In the present case, Barrett told police that he would not

give them a written statement without an attorney present,

but he had no problem in talking about the matter in ques-

tion. The record contains no indication, and the court below

nowhere suggests, that Barrett was laboring under the impres-

sion that oral statements were any less admissible in criminal

proceedings than written statements. Indeed, prior to the first

interview with the Wallingford police, Barrett had been

advised of his Miranda rights on three separate

11

occasions. At least twice, he had acknowledged that he

understood those rights and had signed a printed form that

set them forth. Amongthe rights that were read to and

acknowledged by Barrett was the right to remain silent with

the concomitant warning that if he talked to the police officer,

anything he said could and would be used against him in court.

Also among those rights were the rights to consult with a

lawyer and the right to have counsel with him during ques-

tioning, and the right to have a lawyer appointed before any

questions. At trial, Barrett admitted comprehension of those

rights. He chose in clear terms to waive those rights.”’

The trial court concluded that Barrett comprehended his

Fifth Amendment privilege against self-incrimination. He was

advised on at least three separate occasions of his Miranda

rights; Barrett testified he understood those rights as read.

Through its arbitrary analysis of the facts presented, the

Connecticut Supreme Court concluded that painstaking com-

pliance with Miranda is never enough. In an overly pater-

nalistic approach to criminal interrogation, that court con-

cluded that a voluntary, intelligent, rational decision to speak

in the absence of counsel could be negated by a suspect’s mere

mention of the word ‘‘attorney’’ at any point and in any con-

text. The Petitioner submits that this result destroys the exist-

ing balance created by Miranda and Edwards between the

71 In its opinion, the Connecticut Supreme Court stated that the trial court

‘impliedly found that the defendant had requested counsel.” In a foot-

note accompanying that statement, the Connecticut Supreme Court

stated that ‘‘[t]he trial court noted the defendant's refusal to give a writ-

ten statement without an attorney during its discussion of the defen-

dant’s waiver of his rights.’ Petition at 7A. Hence, the “implied finding”’

ascribed to the trial court is nothing more than the trial court’s

acknowledgement that Barrett refused to give a written statement

without an attorney. In fact, the issue of whether Barrett invoked his

right to counsel was never before the trial court; rather, Barrett's claim

that he invoked his right to counsel during his discussions with police

was first made only on appeal to the Connecticut Supreme Court. State

vu. Barrett, 197 Conn. 50 (1985). Indeed, Barrett testified at trial testimony

that the police never asked him to make a written statement. See foot-

note 19, supra.

12

interests of law enforcement agents and the right of an indi-

vidual to be free from coerced self-incrimination.

The Miranda decision arose in the context of an incom-

municado interrogation at which full warnings of available

constitutional protections were not given. Miranda v. Arizona,

supra, 384 U.S. at 445. This Court was troubled in Miranda

by “intimidation,” ‘“‘unfamiliar atmosphere’ and ‘‘menacing

police interrogation.’ Id. at 457. The Court refused however

to rule that self-incriminating statements made in the absence

of counsel are always inadmissible, choosing instead to balance

the competing societal and individual interests.

Custodial interrogations implicate two competing

concerns. On the one hand, ‘‘the need for police ques-

tioning as a tool for effective enforcement of criminal

laws” cannot be doubted. Schneckloth v. Bustamonte,

412 US. 218, 225 (1973). Admissions of guilt are more

than merely ‘‘desirable;’’ United States uv.

Washington, 431 U.S. at 186; they are essential to

society’s compelling interest in finding, convicting

and punishing those who violate the law. On the other

hand, the Court has recognized that the interroga-

tion process is “inherently coercive’ and that, as a

consequence, there exists a substantial risk that the

police will inadvertently traverse the fine line between

legitimate efforts to elicit admissions and constitu-

tionally impermissible compulsion. New York v.

Quarles, 467 U.S. at Miranda attempted to

reconcile these opposing concerns by giving the defen-

dant the power to exert some control over the course

of the interrogation.

Moran v. Burbine, 106 SCt. at 1144.

Nothing presented in this case warrants a realignment

of the delicate balance struck by the Miranda Court. When

a defendant has given a voluntary, knowing, intelligent waiver

of his right to counsel at interrogation, police are not required

13

to supply advice designed to help a suspect better evaluate

his or her self-interests. United States v. Washington, 431 U.S.

181, 188 (1977). Officers are not required either to provide a

legal interpretation of the language of Miranda or to supply

suspects with a constant flow of potentially relevant infor-

mation. Moran v. Burbine, 106 S.Ct. at 1141-42. United States

v. Frazier, 476 F.2d 891 (DC. Cir. 1973) {en banc). Nor is error-

free interrogation the relevant criterion. See Oregon v. Elstad,

470 US. , 105 S.Ct. 1285, 1293 (1985); Michigan v.

Tucker, 417 U.S. 436, 446 (1974). The relevant. inquiry remains

whether under the totality of circumstances the suspect’s free

will was overborne. The trial court found no such compulsion

and the record reflects none.

The fact that Barrett in spite of repeated Miranda warn-

ings might have believed oral statements to be less damag-

ing than written statements does not render his voluntary

statement inadmissible. There is ample authority for the prop-

osition that refusal to sign a written form does not preclude

a finding of waiver. See North Carolina v. Butler, 441 US. 369,

375 n.5 (1979).””

Respondent’s mention of his desire for counsel was neither

contradictory nor equivocal. A statement is contradictory only

if it is internally inconsistent. Nash v. Estelle, 597 F.2d 513,

523 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 (1979). It

would be equivocal only if a suspect expresses a dual desire

to simultaneously have counsel and to continue interrogation

without counsel. Jd.

22 Harris v. Riddle 551 F.2d 936 (4th Cir,), cert. denied, 434 U.S. 849 (1977);

United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S.

861 (1975); See also United States v. Cooper, 449 F.2d 1060 (DC. Cir. 1974);

United States v. Frazier, 476 F.2d 891 (D.C. Cir. 1973) (en banc); United

States v. McDaniel, 463 F.2d 129 (5th Cir. 1972), cert. denied, 413 U.S.

919 (1973); United States v. Stevens, 445 F.2d 304 (6th Cir.) (per curiam),

cert. denied, 404 U.S. 945 (1971); United States v. McNeil, 433 F.2d 1109

(D.C. Cir. 1969); Pettyjohn v. United States, 419 F.2d 651 (DC. Cir. 1969),

cert. denied, 397 U.S. 1058 (1970); Klinger v. United States, 409 F.2d 299

(8th Cir.), cert. denied, 396 U.S. 859 (1969).

14

By unduly expanding Miranda and Edwards, the Con-

necticut Supreme Court has created an inflexible rule that

would exclude all statements of a defendant if the word attor-

ney is mentioned, even where the defendant's willingness to

speak in the absence of counsel is clearly, intelligently and

voluntarily stated.”* Miranda and Edwards shield an indi-

vidual only from the compulsion induced by a police-

dominated atmosphere; they do not, prevent him from plac-

ing conditions on his conversations with police or allow him

to rescind a voluntary and intelligent waiver once interroga-

tion is completed. The defendant willingly agreed to give an

oral statement to police, and that statement is admissible. The

statement was therefore admissible.

23 The trial court found Barrett's statements were voluntary. This finding

was not questioned by the Connecticut S ipreme Court. Consequently,

the voluntariness of these statements is not an issue before this Court.

15

CONCLUSION

For the foregoing reasons, this Court should reverse the

judgment of the Supreme Court of the State of Connecticut.

Respectfully submitted,

Petitioner

STATE OF CONNECTICUT

By:

JULIA DiCOCCO DEWEY

Assistant State’s Attorney

Counsel of Record

JAMES G. CLARK

Chief, Appeliate Unit

Office of the Chief State’s Attorney

Connecticut Division of Criminal Justice

PO. Box 5000

340 Quinnipiac Street

Wallingford, Connecticut 06492

(203) 265-2373

16

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