Amicus Curiae Brief — Connecticut v. Barrett

y> NO. 85-899

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

THE STATE OF CONNECTICUT,

¥.

WILLIAM BARRETT,

Petitioner,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of Connecticut

MOTION FOR LEAVE TO FILE BRIEF

AND

BRIEF OF AMICUS CURIAE,

NATIONAL DISTRICT ATTORNEYS ASSOCIATION

™f Counsel:

ROBERT S. MARSEL

LAWRENCE J. FOSSI 2400 Westheimer No. 308C

c/o Vinson & Elkins Houston, Texas 77098 _

First City Tower (713) 523-9008

Houston, Texas 77002 Counsel of Record

JACK E. YELVERTON, Executive Director

National District Attorneys Association, Inc.

708 Pendleton Street

Alexandria, Virginia 22314

JAMES P. MANAK

National District Attorneys Association, Inc.

33 North LaSalle Street

Chicago, Illinois 60602

a a at

~

>

.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

MOTION FOR LEAVE TO FILE BRIEF

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT AND AUTHORITIES

I. RESPONDENT NEVER INVOKED HIS RIGHT TO

REMAIN SILENT OR TO HAVE COUNSEL PRES-

ENT DURING DISCUSSIONS

A. The Plain Sense of Respondent’s Words Conveys

aWaiver of the Right to Remain Silent and the

Right to Counsel

B. The Refusal to Sign a Written Statement Without

an Attorney Present Does Not Constitute an

Invocation of the Right to Remain Silent

C. Respondent’s Conduct and Statements Evidence

a Voluntary, Knowing, and Intelligent Waiver

of the Right to Remain Silent and the Right

to Counsel

ll. EDWARDS V. ARIZONA AND ITS PROGENY ARE

CONSPICUOUS EXAMPLES OF POLICE BADGER-

ING IN THE FACE OF AN ACCUSED’S CLEAR

REQUEST FOR COUNSEL, AND THESE CONDI-

TIONS ARE ABSENT IN THIS CASE

CONCLUSION

ill

10

TABLE OF AUTHORITIES

CASES

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

Fare v. Michael C., 442 U.S. 707, reh. denied, 444 U.S.

887 (1979)

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

434 U.S. 849 (1977)

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

cert. denied 396 U.S. 859 (1969)

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

Moran v. Burbine, 106 S. Ct. 1135 (1986)

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

Oregon v. Bradshaw, 462 U.S. 1039 (1983)

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

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

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

Solem v. Stumes, 465 U.S. 638 (1984)

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

State v. Frazier, 440 A.2d 916 (Conn. 1981), cert.

denied, 458 U.S. 1112 (1982)

State v. Harris, 452 A.2d 634 (Conn. 1982), cert.

denied, 460 U.S. 1089 (1983)

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

1974)

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

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

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

United States v. McDaniel, 463 F.2d 129 (5th Cir. 1972),

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

United States v. McNeil, 433 F.2d 1109 (D.C. Cir. 1969)

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

cert. denied, 404 U.S. 945 (1971)

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

CONSTITUTION

United States Constitution Fifth Amendment

United States Constitution Fourteenth Amendment

7,9, 10

NO. 85-899

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

STATE OF CONNECTICUT,

Petitioner,

V.

WILLIAM BARRETT,

Respondent.

MOTION FOR LEAVE TO

FILE BRIEF OF AN AMICUS CURIAE

The National District Attorneys Association (“NDAA”)

respectfully moves for leave to file the attached brief as amicus

curiae. In support of its Motion, NDAA would show the court

as follows:

1. Interest of Amicus Curiae. NDAA is a nonprofit corpo-

ration and the sole national organization representing state and

local prosecuting attorneys in America. Since its founding in

1950, NDAA’s programs of education, training, publication, and

amicus curiae activity have carried out its guiding purpose of

reforming the criminal justice system for the benefit of all of

our citizens.

2. Specific Interest in the Case at Bar. NDAA’s members

are continuously engaged in the litigation of criminal cases, in-

cluding many cases presenting issues related to those in the case

at bar. They would be affected directly in their statutory obliga-

tions if the reasoning of the court below were to be adopted

here. Since NDAA’s members appear in the trial courts to repre-

sent the states in these cases, NDAA may be able to assist the

Court in developing the issues fully.

-ii-

3. Purpose of Amicus Curiae Brief. NDAA’s purpose, in

this brief, is to analyze the case authority in ways that are not

present in other briefs. Amicus curiae has communicated with

counsel for Petitioner in an effort to avoid undue duplication.

It is believed that this brief argues the issues in a manner that will

not be done in Petitioner’s brief.

4. Public Importance of the Issues Addressed Here. Since

its decision in Edwards v. Arizona, this Court has addressed the

issues it raised in several cases. A very large number of cases

has been presented to the lower courts. The results have some-

times been anomalous. The decision of the Connecticut Supreme

Court in this case is an example. There is great need of a clarifi-

cation of the Edwards standard to avoid these anomalous results.

5. Requests for Consent. The consent of the Petitioner to

the filing of this brief has been requested and granted. The con-

sent of Respondent has been requested and refused. This Motion

is therefore filed in accordance with the Rules of this Court.

FOR THESE REASONS, NDAA prays that it be granted

leave to file the attached brief as amicus curiae.

Respectfully submitted,

Robert S. Marsel

2400 Westheimer No. 308C

Houston, Texas 77098

(713) 523-9008

Attorney for Amicus Curiae

-iv-

NO. 85-899

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

STATE OF CONNECTICUT,

Petitioner,

V.

WILLIAM BARRETT,

Respondent.

BRIEF OF AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The interest of Amicus Curiae is set forth in paragraphs 1-2

of the Motion preceding this brief.

SUMMARY OF ARGUMENT

The opinion below holds that a criminal suspect’s reply to

police that he would not give a written statement without his

attorney present, but that he was willing to answer questions

orally, amounts to a request to have counsel present during sub-

sequent oral discussions. Neither the Fifth and Fourteenth

Amendmerts to the United States Constitution nor the decisions

of this Court that were relied on by the Connecticut Supreme

Court support such a conclusion. As is evident from the record,

respondent Barrett, who was fully advised of his Miranda rights,

never indicated in any manner that he wished to remain silent,

nor did he state that he wanted an attorney present while talking

with police. To the contrary, it could not be more clear that

respondent clearly was eager to discuss the matter under investi-

gation and was wholly willing to do so without any attorney

present. Respondent never having invoked his right to counsel,

the only relevant inquiry is whether he voluntarily, knowingly,

and intelligently waived the rights conveyed in the Miranda

warnings. The record amply confirms the finding of the trial

court that the waiver was validly made.

ARGUMENT AND AUTHORITIES

I. RESPONDENT NEVER INVOKED HIS

RIGHT TO REMAIN SILENT OR TO HAVE

COUNSEL PRESENT DURING DISCUS-

SIONS.

A. The piain sense of respondent’s words conveys a waiver of

the right to remain silent and the right to counsel.

Quite simply, respondent 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 question. Had

the police proceeded to extract a written statement from respon-

dent, there might be some serious question about whether such

statement were admissible. No such written statement was ever

obtained, however, and therefore no such question arises.

The record contains no indication, and the court below no-

where suggests, that respondent 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, respondent had been

advised of his Miranda rights on three separate occasions. At

least twice, he had acknowledged that he understood those rights

and had signed a printed form setting them forth. Among the

rights that were read to and acknowledged by respondent, of

course, was the “right to remain silent” with the concomitant

warning that “if you talk to any police officers, anything you say

can and will be used against you in court.” Also among those

rights were the rights to consult with a lawyer and to “have him

with you during questioning,” and the right to have a 'awyer

appointed for free ‘‘before any questions.” (emphasis added).

It could not be more clear, then, that respondent was

advised of his rights to remain silent and to have a lawyer

present during any discussions, and that respondent chose—

and announced his choice in clear terms—to waive those rights."

B. The refusal to sign a written statement without an atts*rey

present does not constitute an invocation of the right to

remain silent.

The essential question in this case is whether an invocation

of the right to counsel for written but not oral statements must

be construed by police as an omnibus invocation of the right to

remain silent in any circumstance, even where a suspect

spontaneously evinces a willingness to talk freely without an

attorney. The great weight of authority answers that question

with a resounding “‘no’’.

It is important to note at the outset that the court below

skirted that question completely, and substituted tautology

for analysis. That court cited, without quotation, Fare v.

Michael C., 442 U.S. 707, 719 (1979), for the proposition

that “(t]he defendant’s refusal to give a written statement

without his attorney present was a clear request for the as-

sistance of counsel to protect his rights in his dealings with

the police.” 197 Conn. at 57. We suppose that the court below

was referring to that portion of the Fare opinion claiming that

Miranda v. Arizona, 384 U.S. 436 (1966), created a “rigid rule

1 In its opinion, the Connecticut Supreme Court stated that the trial

court “impliedly found that the defendant had requested counsel.”

In a footnote that accompanies that statement, the Connecticut

Supreme Court explained that “jt]he trial court noted the defen-

dant’s refusal to give a written statement without an attorney during

its discussion of the defendant’s waiver of his rights.”” 197 Conn. at

56, n.6. Hence, the “implied finding” of the trial court turns out

to be nothing more than the trial court’s acknowledgement that

respondent refused to give a written statement without an attorney.

In fact, the claim that respondent had invoked his right to counsel

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

that an accused’s request for an attorney is per se an invocation

of his Fifth Amendment rights, requiring that all interrogations

cease.” 442 U.S. at 719. The Connecticut Supreme Court’s

conclusion, though, scarcely follows from its premise. The

fact that a request for an attorney is an invocation of one’s

Fifth Amendment rights does not mean that the statement that

one will not make written statements without an attorney is

a request for an attorney as respects oral discussions.

This Court made quite clear, in North Carolina v. Butler,

441 US. 369, 373 (1979), that the mere refusal to sign a

written waiver of Miranda rights does not preclude a valid waiver

of those rights:

The question is not one of form, but of whether the

defendant in fact knowingly and voluntarily waived

the rights delineated in the Miranda case.

In North Carolina v. Butler, this Court endorsed a common sense

approach to the waiver question that had theretofore been for-

mulated and applied in a number of cases by a number of federal

circuit courts of appeal. As the District of Columbia Circuit

noted in United States v. Cooper, 499 F.2d 1060 (D.C. Cir.

1974), it is

a common experience of life that in many cir-

cumstances persons are willing to convey infor-

mation orally but are reluctant to put the same

2 See, e.g., United States v. Cooper, 499 F.2d 1060 (D.C. Cir. 1974);

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

United States v. McNeil, 433 F.2d 1109 (D.C. Cir. 1969); Pettyjohn

v. United States, 419 F.2d 651 (D.C. Cir. 1969), cert. denied, 397

U.S. 1058 (1970); Harris v. Riddle, 551 F.2d 936 (4th Cir.), cert.

denied, 434 U.S. 849 (1977); 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. Gardner, 516 F.2d 334 (7th

Cir.), cert. denied, 423 U.S. 861 (1975); Klingler v. United States,

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

thing in writing. We do not think, as Frazier en

banc, McNeil, and Pettyjohn have made clear

before, that a refusal to sign a waiver means that

the person interrogated is assuming a con-

tradictory position with respect to his willingness

to respond to oral questions, whatever may be his

motive in so doing.

499 F.2d at 1062 (referring to the cases cited in footnote 2

hereof). The relevant inquiry, as North Carolina v. Butler and

the circuit court cases make clear, is not the narrow one of

whether the suspect has refused to sign a waiver or other state-

ment, but rather the broad one of whether under the facts and

circumstances presented the suspect has made a valid waiver.

Especially instructive is the Frazier case wherein a robbery

suspect confessed to a series of other robberies in which he

was nct a suspect. When the officer listening to the confession

reached for a pad and pencil to take notes, the suspect objected:

“No, don’t put anything down. Don’t write anything.”’ 476

F.2d at 893. The officer pushed the pad away, and the suspect

continued with his confessions. When the suspect had finished

relating what he wanted to tell, the officer suggested that the

suspect sign a written version of what he had said. The suspect

refused. 476 F.2d at 894. The panel that first heard the case

concluded that the suspect’s ban on notetaking was tantamount

to invocation of the right to counsel, and that no statement,

oral or written, made thereafter could be admissible absent an

explanation to the suspect by police that the legal rules governing

the admissibility of evidence do not distinguish between oral and

written confessions. 476 F.2d at 898.

The circuit court sitting en banc disagreed. The United

States Supreme Court, it said, took care in Miranda to spell out

precisely the warnings to be given. It is not for a police officer

to place a legal interpretation on those warnings; indeed, “[w Je

doubt that the warmest friends of Miranda wish to see a return

to the days when such officers, although not lawyers themselves,

were free with legal advice to their prisoners.”” Jd. at 898-99.

The police had, said the en banc court, placed word for word

the warnings suggested by the Miranda court on their printed

cards, and had read those warnings to the suspect. Those

warnings “unmistakably ga e notice that what one says, as

distinct from what one writes or signs, can and will be used in

court .. .” Jd. at 896 (emphasis in original).

When the police, as here, faithfully followed the

exact procedure prescribed by the Supreme Court,

infe:ior courts should be slow to mandate, after the

fact, enlarged responsibilities alien to the duties and

training of policemen.

476 F.2d at 899. Finding the other circumstances of the case to

be entirely consistent with a valid waiver, the Frazier en banc

court affirmed the admissibility of the officer’s testimony.

While there are no federal cases on point, amicus respect-

fully submits that, provided a suspect is fully willing to give an

oral statement without an attorney, it should not make a whit of

difference whether the refusal to give a written statement is made

without elaboration, or is softened and qualified by making

exception for a circumstance in which an attorney is present.

Notwithstanding the absence of federal cases directly on

point, there is a state case on point, decided, in fact, by the

Connecticut Supreme Court: State v. Harris, 188 Conn. 574,

452 A.2d 634 (1982), cert. denied, 460 U.S. 1089 (1983). In

that case, a suspect who had refused to sign a written waiver and

had refused to make a written statement before consultation

with a lawyer, sought to suppress his oral statements to police.

The Connecticut Supreine Court, noting that the suspect had

expressed to police a willingness to discuss the crime in question,

and noting the absence of factors that have traditionally been

held to cast doubt on a finding of a knowing and voluntary

waiver, concluded that the suspect’s oral statements were pro>-

erly admissible. State v. Harris, supra, 452 A.2d at 637. See also

State v. Frazier, 440 A.2d 916 (Conn. 1981), cert. denied, 458

U.S. 1112 (1982) (refusal to sign a written statement in the

absence of an attorney did not vitiate an otherwise valid waiver

of right to remain silent).

In sum, the holding of the court below is not in any way

required by or consistent with any decision of this Court. To the

contrary, the holding below is at odds with North Carolina v.

Butler, Edwards v. Arizona, and with established and sensible

precedent of a number of federa! appeals courts.

C. Respondent’s conduct and statements evidence a voluntary,

knowing, and intelligent waiver of the right to remain silent

and the right to counsel.

If any case presents an example of a knowing, volun-

tary, and intelligent waiver of the right to remain silent and the

right to counsel, this case surely is it. Respondent was advised

three times of his Miranda rights before the first discussions with

police, and received an additional set of warnings before his

second discussions. The trial court found that respondent “un-

derstood perfectiy’’ those rights, and respondent himself testified

that he understood his rights. Respondent’s understanding is

confirmed by his refusal to give a written statement without an

attorney present and by the fact that he occasionally ignored

questions from police during his narratives.° Respondent was

not without example of a refusal even to talk to police without

counsel present; co-assailant Artis, with whom respondent shared

3 The Connecticut Supreme Court seemed to find something signifi-

cant about the fact that Lieutenant Howard, who arrived at the

police station after the first discussions among respondent and

Officers Genovese and Cameron, was under the (mistaken) impres-

sion that mspondent had called an attorney. Even if relevant, that

fact can bear only on the second discussions. The lieutenant’s mis-

taken impression is, however, not relevant. As this Court recently

stated in Moran v. Burbine, 106 S. Ct. 1135, 1142 (1986), “the state

of mind of the police is irrelevant to the question of the intelligence

and voluntariness of respondent’s election to abandon his rights.” A

closer case might be presented if respondent had announced that he

had called his attorney, but since respondent did not announce that

(because he had not done so), this matter not only is irrelevant but

is not even a part of the case.

a cell at the Wallingford police station, exercised his right to re-

main silent.*

The nature of respondent’s statements to police is, perhaps,

the best evidence of voluntariness of his waivers of the right to

remain silent and right to counsel.” The record makes clear

4 This fact is noted on the police report prepared by Sergeant

Genovese and admitted as State’s Exhibit C for purposes of the sup-

pression hearing. Tr. at 426.

5 Because we expect that respondent or amici filing briefs on respon-

dent’s behalf may make much of respondent’s claimed .ajuries, we

spell out in detail what those injuries consisted in. Upon arrival at

the Wallingford police station, respondent had a cut—variously

described as a “gash” (Tr. at 451) and a “scratch” (Tr. at 495)—on

one of his hands, and attendant swelling. Respondent also had dis-

coloration associated with bruising under his left eye. Tr. at 489. In

Lieutenant Howard’s view, respondent’s hand was doubtlessly sore,

but no pain or serious discomfort on responde”t’s part was evident.

Tr. at 509. The decision to transport ree ondent to a hospital

emergency room was made because of the police’s concern about a

leg injury to co-assailant Artis, who requestcd hospitalization. Tr.

at 471. Respondent testified that he also had requested medical

attention. (Tr. at 865, 868); Lieutenant Howard recalled no such

request, and testified that any request would have been tionored

(Tr. at 506, 509-10). At the hospital, respondent was given a

prescription for eye drovs. There is no evidence at all in the record

that his hand required ar.y medical treatment. Lest the implication

arise that the injuries of respondent and Artis may have been caused

by police, we note that the record clearly indicates that respondent’s

hand injury may have been caused by the efforts of the victim to

resist efforts to undress her (Tr. at 14, 736), and that the other

injuries of respondent and assailant resulted from a barroom brawl

in which the angered brothers of the victim attacked her assailants

(Tr. at 244, 261, 478, 492-93, 652-53, 713, 728-29, 843-47). Ironi-

cally, by arresting the assailants, police plucked them from a poten-

tially lethal brawl (Tr. at 845) and transported them to one of the

few places where they could be certain of being safe that evening—

the police station.

that the statements were not extracted by lengthy questioning,

or insistent badgering, or physical force, or psychological

coercion. ® Rather, those statements were spentaneous nar-

ratives by a speaker who was both willing and eager to tell his

side of the story, and who in so telling that story sometimes

chose to ignore the questions occasionally interjected by his

interlocutors.

Manifestly absent from this case are the “salient features”

of “incommunicado interrogation of individuals in a police-

dominated atmosphere” without “full warnings of constitutional

rights” that were “essential” to the decisions in Miranda, 384

U.S. at 445 Respondent’s phone calls and discussions with the

co-assailant ‘who refused to ta’k with police)’ are obvious

forms of communication that make respondent’s first hours

in custody the opposite of “incommunicado”. In sum, not

only respondent’s words, but also his acts and the circumstances

surrounding them evince a voluntary, knowing, and intelligent

waiver of his right to remain silent and right to counsel, and fully

support the ruling of the trial court, which observed firsthand the

witnesses to the events in question, that the waiver was validly

made.

Il. EDWARDS V. ARIZONA AND ITS PROG:

ENY ARE CONSPICUOUS EXAMPLES OF

POLICE BADGERING IN THE FACE OF AN

ACCUSED’S CLEAR REQUEST FOR COUN-

SEL, AND THESE CONDITIONS ARE AB-

SENT IN THIS CASE.

In Edwards v. Arizona, 451 U.S. 477 41981), the defendant

unequivocally requested an attorney during the first interroga-

6 Tr. at 454, 491, 600-03.

7 It is clear from the record that respondent and Artis conversed

while at the Wallingford police station, if not before the first dis-

cussions, certainly before the second. Tr. at 865.

tion, whereupon questioning ceased and he was removed to a

jail cell. The next morning, he was told that he “had to”’ talk to

detectives, even thougii he had stated quite clearly that “he did

not want to talk to anyone.” 451 U.S. at 479. Thus, Edwards

presents a clear example of impermissible badgering of a suspect

who in clear and unmistakable terms expressed his desire to

exercise his Fifth Amendment right against self-incrimination.

As the states of Alaska et al. demonstrate in their amicus

brief urging reversal in this case, the focus upon the presence or

absence of badgering or coercion by police is a thread that runs

through cases decided since Edwards, including Smith v. Illinois,

105 S. Ct. 490 (1984); Solem v. Stumes, 465 U.S. 638 (1984);

Oregon v. Bradshaw, 462 U.S. 1039 (1983); and Wyrick v.

Fields, 459 U.S. 42 (1982). This common theme strikes much

closer to the heart of the voluntariness inquiry that has historicai-

ly been the central concern of Fifth Amendment analysis than

does the holding below. There was simply no badgering or over-

riding of the suspect’s decision to remain silent.

CONCLUSION

For the foregoing reasons, this Court should reverse the

judgment of the Connecticut Supreme Court.

Respectfully submitted,

Robert S. Marsel

2400 Westheimer No. 308C

Houston, Texas 77098

(713) 523-9008

Attorney for Amicus Curiae

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