Petition for Writ of Certiorari — Butler v. McKellar
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IN THE
Supreme Court. US
FILED
FEB 2 41989
JOSEPH F. SPaMWOL, yo,
CLERK
SUPREME COURT OF THE UNITED STATES
October Term,
1988
No. 88-
HORACE BUTLER,
JAMES*AIKEN, WARDEN, AND
THE ATTORNEY GENERAL OF
SOUTH CAROLINA, T. TRAVIS
MEDLOCK,
Petitioner,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN H. BLUME
FRANKLIN W. DRAPER
Attorneys at Law
South Carolina Death
Penalty Resource Center
P.O. Box 11311
Columbia, SC 29211
(803) 765-0650
Attorneys for Petitioner
a 4H
QUESTIONS PRESENTED
z.
Did the Court of Appeals violate the rule
announced in Shea v. Louisiana by denying petitioner
the benefit of Edwards v. Arizona, despite the fact
that petitioner’s conviction was not yet final on
direct review at the time Edwards was decided?
ass
Did the Court of Appeals majority misread Arizona
vy. Roberson as creating a "new" rule of constitutional
law?
QUESTIONS PRESENTED.
TABLE OF CONTENTS.
TABLE OF AUTHORITIES.
CITATION TO OPINIONS BELOW .
JURISDICTION.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.
STATEMENT OF THE CASE .
HOW THE FEDERAL QUESTIONS WERE DECIDED BELOW.
REASONS THE WRIT SHOULD BE GRANTED.
The decision of the Court of Appeals denying
retroactive effect to the rule of
is in direct conflict with this Court’s decision
in Shea v. Louisiana and the decisions of other
federal courts of appeal, which hold that
Edwards applies to all cases pending on direct
appeal at the time that Edwards was decided.
1. This Court’s decision in Arizona v.
Roberson did not create a new rule of law as
it merely applied the bright-line rule
established in Edwarday.—Arizona t to a
different factual setting...
2. Because petitioner’s case was pending on
direct appeal at the time that this Court
decided Edwards v. Arizona, the Court of
Appeals incorrectly determined that the
“pright-line" rule established in Edwards
did not apply retroactively in this case.
CONCLUSION.
Te
10
14
TABLE OF AUTHORITIES
Cases
Allen v. Hardy, 478 U.S. 255 (1986).
U.S. , 108
Arizona v. Roberson
S.Ct. 2093 (1988).
Batson v. Kentucky, 476 U.S. 79 (1986)
Butler v. Aiken, C/A No. 86-1093-3B (D.S.cC.
March 9, 1987) ss +e Oe Se ee kf
Butler v. Aiken, C/A. No. 86-1093-3 (D.S.c.
June 9, 1987). a ae ee ae ee
Butler v. Aiken, 846 F.2d 255 (4th Cir.
1988), modified and kab. denied,
December 2, 1988 ...
Butler v. State, 286 S.C. 441, 334 S.E.2d
813 (1985), ‘cack, fanial, 474 U.S. 1093
(1986) .. ‘ ‘ . es
Cervi v. Kemp, 855 F.2d 703 (11th Cir. 1988)
Colorado v. Spring, 479 U.S. 564 (1987).
Edwards v. Arizona, 451 U.S. 477 (1981).
, 842 F.2d 875 (6th Cir.
1988). jt © ¥ 6160.8 ole tes
Francis v. Franklin, 471 U.S. 307 (1985)
, 784 F.2d 1453 (9th
Cir. 1986) : * 6 & 6 Sl ele et ee
Griffith v. Kentucky, 479 U.S. 314 (1987).
, 736 F.2d 994 ( 8th Cir.
1985). (ene © 2 &» & SS Ole © os
Lee v. Missouri, 439 U.S. 461 (1979)
Michigan v. Jackson, 475 U.S. 625 (1986).
Michigan v. Mosley, 423 U.S. 96 (1975)
Miranda v. Arizona, 384 U.S. 436 (1966).
Sandstrom v. Montana, 442 U.S. 510 (1979).
Shea v. Lovisiana, 470 U.S. 51 (1985).
Smith v. Illinois, 469 U.S. 91 (1984).
Solem v. Stumes, 465 U.S. 638 (1984).
State-y. Butler, 277 S.C. 452, 290 S.E.2d
1, cert. denied, 459 U.S. 932 (1982)
Stovall v. Denno, 388 U.S. 293 (1967).
Truesdale v. Aiken, 480 U.S. 527 (1987).
’
791 F.2d 590 (7th Cir. 1986)
~iii-
United Sta
813 F.2d 117 (7th Cir. 1987)
United States v. Johnson, 457 U.S. 537 (1982).
U.S. , 108 S.Ct
534 (1988). ‘oe et 60 6 6 8 6
Constitutional and Statutory Provisions
28 U.S.C. §1257(3)
U.S. Const. Amend. V.
U.S. Const. Amend. VI.
-iv-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1988
No. 88-
HORACE BUTLER,
Petitioner,
Vv.
JAMES AIKEN, WARDEN, AND
THE ATTORNEY GENERAL OF
SOUTH CAROLINA,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
Petitioner, Horace Butler, prays that a writ of certiorari
issue to review the judgment of the United States Court of
Appeals for the Fourth Circuit.
CITATION TO OPINIONS BELOW
The opinion of the United States District Court for the
District of South Carolina, Butler v. Aiken, C/A. No. 86-1093-3
(D.S.C. June 9, 1987), denying Butler’s petition for a writ of
habeas corpus is unreported, and may be found at J.A. 1606. A
copy of the District Court’s opinion is attached to this petition
as Appendix A. The initial panel opinion of the United States
Court of Appeals for the Fourth Circuit, affirming the denial of
a writ of habeas corpus, is reported as Butler v. Aiken, 846 F.2d
255 (4th Cir. 1988), and is attached to this opinion as Appendix
B. The order of the Court of Appeals denying rehearing and
rehearing en banc is unreported. Butler v. Aiken, No. 87-4004
(4th Cir. June 15, 1988). The order of the United States Court
of Appeals for the Fourth Circuit modifying the panel’s decision
on reconsideration of the order denying rehearing, and denying
rehearing en banc, with five judges dissenting, is reported as
Butler v. Aiken, No. 87-4004 (4th Cir. Dec. 12, 1988). A copy of
the order modifying the panel opinion and the dissent from the
ote
denial of rehearing is attached to this petition as Appendix é.'
JURISDICTION
The order of the United States Court of Appeals for the
Fourth Circuit denying the petition for rehearing with suggestion
for rehearing en banc was entered December 2, 1988. This Court’s
jurisdiction is invoked pursuant to 28 U.S.C. §1257(3),
petitioner having asserted below and asserting herein a
deprivation of rights secured by the United States Constitution.
CONSTITUTIONAL PROVISION INVOLVED
This case involves the Fifth Amendment to the United States
Constitution, which provides in pertinent part:
No person . . . shall be compelled in any criminal
case to be a witness against himself, nor be deprived
So erensinds or property, without due process of
STATEMENT OF THE CASE
Petitioner was convicted and sentenced to death for the
murder of Pamela Lane. A key piece of evidence against him was
his confession. A panel of the United States Court of Appeals
for the Fourth Circuit found that petitioner’s confession was
obtained in violation of the Fifth Amendment principles of
Edwards v. Arizona, 451 U.S. 477 (1981), and Arizona v. Roberson,
_. ~-U.S. __, 108 S.Ct. 2093 (1988). However, the court denied
habeas corpus relief on the sole ground that Roberson should not
be applied retroactively to petitioner’s conviction, which had
become final on direct review after Edwards but before Roberson.
The pertinent facts are as follows.
Four Charleston County police officers arrested petitioner
on the evening of August 30, 1980, on a charge--later dismissed--
unrelated to the murder of Pamela Lane. The officers brought
petitioner to the county jail, where he remained until his bond
‘The opinion of the South Carolina Supreme Court affirming
Petitioner’s conviction and sentence of death is rerorted as
State v. Butler, 277 S.C. 452, 290 S.E.2d 1, cert. denied, 459
U.S. 932 (1982). The South Carolina Supreme Court opinion
affirming Petitioner’s conviction after granting a petition for
writ of certiorari requesting review of the denial of
petitioner’s application for post-conviction relief is reported
as , 286 S.C. 441, 334 S.E.2d 813 (1985), cert.
denied, 474 U.S. 1093 (1986).
aSe
hearing late the followi'g evening. Prior to the hearing,
petitioner invoked his right to counsel by retaining a local
attorney, W. McAlister Hill. Hill appeared with petitioner at
the bond hearing on August 31. petitioner was unable to post
bond and was returned to the Charleston County Jail. Hill later
testified that he warned the police against any further
questioning of his client, but the officers claimed not to
remember any such instruction.
A few hours after the bond hearing, at 12:15 a.m. on
September 1, the same four officers who had arrested petitioner
on the assault charge brought him to the Charleston County Police
Headquarters where they initiated an interrogation concerning the
murder of Miss Lane. After informing petitioner that they were
charging him with the Lane murder, the police officers questioned
him for some five hours, during which time they obtained two
separate Miranda waiver forms and two different statements
regarding his participation in the crime. Both of these
statements were introduced against petitioner at his trial.
Petitioner was not returned to the county jail until 10:30 a.m.,
after he had shown police the scenes where the crime took place.’
In January, 1981, a Charleston County jury convicted
petitioner of murder and sentenced him to death. While
petitioner’s case was pending on direct appeal to the South
Carolina Supreme Court, this Court announced its decision in
Edwards v. Arizona, 451 U.S. 477 (19871) Some nine months after
Edwards was decided, on February 22, ‘982, the South Carolina
Supreme Court affirmed petitioner s es and sentence of
*the state court record «lsc eals that petitioner
functions on the borderline of the mentally retarded range, with
a mental age of between seven and eleven. and an I.Q. between the
high sixties and the low seventie When he completed his
education at age sixteen, he had just finished the fourth grade.
The record also indicates that petitioner's attorney, Mr. Hill,
was not informed that the police planned to interrogate his
client after the attorney left the bond hearing and petitioner
was returned to the county jail. Nor is there the slightest
evidence that Hill consented to any such interrogation. In fact,
Hill testified in state collateral proceedings that he
specifically instructed the police at the bond hearing not to
talk to petitioner at all.
allie
death. State v. Butler, 277 S.C. 452, 290 S.E.2d 1, cert.
denied, 459 U.S. 932 (1982).
After exhausting his state collateral remedies, Butler v.
State, 286 S.C. 441, 334 S.E.2d 813 (1985), cert. denied, 474
U.S. 1093 (1986), petitioner filed a petition for habeas corpus
in the District Court of South Carolina alleging, inter alia,
that his Fifth Amendment rights under Edwards had been violated
by the police officers’ initiation of questioning about the
murder of Pamela Lane after petitioner had invoked his right to
counsel just hours before in connection with the assault charge.
The District Court, apparently unaware that petitioner’s
conviction had not yet become final when Edwards was decided,
dismissed his Edwards claim on grounds that he was not entitled
to retroactive application of the “bright line” test enunciated
in Edwards. J.A. 1640. On appeal, a panel of the Fourth Circuit
Court of Appeals acknowledged that the district court’s
nonretroactivity holding was erroneous. The appeals court
nevertheless denied relief, holding that Edwards did not bar
police initiation of questioning concerning a charge other than
the one for which the suspect had invoked his Fifth Amendment
right to counsel. Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988).
Just after the Court of Appeals denied petitioner’s request
for rehearing and suggestion for rehearing en banc, Butler v.
Aiken, No. 87-4004 (4th Cir. June 15, 1988), this Court announced
its decision in Arizona v. Roberson, U.S. __, 108 S.Ct. 2093
(1988). On petitioner’s motion for reconsideration, the Court of
Appeals requested that the parties submit briefs as to the effect
of the intervening decision in Roberson, _—-U.S. __s,:~«108 S.Ct.
2093 (1988). On December 2, 1988, the panel of the Court of
Appeals issued a modified opinion acknowledging that the
procedures by which petitioner’s statements were obtained were
invalid under Roberson. However, the panel adhered to its
earlier judgment denying relief on the sole ground that Roberson
should not be accorded "retroactive" effect. Butler v. Aiken,
No. 87-4004 (4th Cir. Dec. 2, 1988). Rehearing en banc was
aie
denied by a vote of six to five. The dissenting judges filed an mandated that the Edwards rule be applied to petitioner’s case.
Butler v. Aiken, 846 F.2d 255, 257 (4th Cir. 1988). The panel
opinion corrected the district court by stating that although
opinion which pointed out that the Roberson Court had expressly
rejected the suggestion that the holding of that case represented
any extension of Edwards. For this reason, according to the Edwards did not have retroactive effect, it did apply to cases
dissenting judges, Roberson presented no question of pending on direct appeal at the time Edwards was announced.
retroactivity, and the invalidity of petitioner’s conviction However, the panel did not believe the "brigiit-line” rule of
under both Roberson and Edwards mandated that he be granted Edwards extended to the facts of petitioner’s case.
habeas relief. We fail to see how the actions of the Charleston
police could fall within the intent of the Court in
HOW THE FEDERAL QUESTIONS WERE DECIDED BELOW Edwards. . . . We see no reason for a different result
After the respondent unconditionally waived the defense of simply because the custody was continuous.
Properly initiated interrogation on entirely new
nonexhaustion of state remedies, J.A. 1499-1500, the United charges does not intrude intc an accused’s previously
invoked rights but rather offers that accused an
States Magistrate to whom the case was initially referred opportunity to weigh his rights intelligently in light
of changed circumstances. When, as occurred in this
recommended that relief be denied on petitioner’s Edwards claim. case, the accused then freely waives any constitutional
right to counsel and provides voluntary statements of
The magistrate reasoned that under Michigan v. Mosley, 423 U.S. an incriminating nature, there is no justification for
96 (1975), the police interrogation of petitioner about the pe eon ng the search for truth by suppressing those
murder was permissible because the questioning focused only on a Id. at 258-59. Therefore, the panel concluded, petitioner’s
crime different in time, place, and nature from the first crime confessions were act obtained in viclation of the Fifth
for which petitioner had already retained counsel. J.A. 1586. Amendment. Id _
The district court adopted the magistrate’s reasoning, and The panel subsequently modified its opinion in light of
rejected petitioner's reliance on United States ex rel. Espinoza peteene ©. Sebeneen, gunmen, which helé thet the “bright-line”
v. Fairman, 813 F.2d 117 (7th Cir.) cert. denied, U.S. ,
107 S.Ct. 3240 (1987), a decision granting habeas corpus relief
rule of Edwards bars police initiated interrogation following a
suspect’s request for counsel in the context of a separate
on facts in all material respects identical to those of investigation. The panel found that:
petitioner’s case. The district court concluded that it the appearance of counsel with Butler at a bond hearing
on the assault charge for which he was first arrested
aaeehiceul te dean tee a = ype oo er conclusively demonstrated invocation of Butler’s fifth
oak a rt > a a a4 7 lies 3 . amendment rights. The subsequent interrogation
pce Be gy gy a U.S ee (1984) ’ concerning the Lane murder, occurring during continuous
Petitioner me convicted January 24, 1981. The a: was contrary to the Edwards rule as modified
sentencing phase of his trial was concluded on January n Roberson.
26, 1981. Edwards was decided May 18, 198!.
Order at 2-3. The panel further conceded that if petitioner’s
J.A. 1640. case was before the court on direct appeal it would in all
The original panel decision of the United States Court of likelihood reverse the conviction and remand the case for a new
Appeals for the Fourth Circuit found that the district court trial. Order at 3. The panel then examined the retroactive
erred in ruling that the “bright-line” rule established by this
Court in Edwards v. Arizona did not apply to petitioner’s case.
The panel concluded that because petitioner’s appeal was pending
when Edwards was decided, Shea v. Louisiana, 470 U.S. 51 (1985),
effect of Roberson in collateral proceedings in accordance with
the three factors established by this Court in Stovall v. Denno,
388 U.S. 293 (1967):
(1) the purpose of the new rule of law; (2) the extent
of reliance by law enforcement authorities on the old
=Ge -6-
standard; and (3) the effect of retroactive application
upon the administration of justice. Allen v. Hedy,
U.S. __, 106 S.Ct. 2878, 2880 (1986).
Id. Applying this test, the panel decided that petitioner could
not claim any retroactive benefit from Roberson.
The Edwards-Roberson limitations on police
interrogation have only the most tangential
relationship to truth finding. They are, rather, a
part of the prophylactic protection accorded the fifth
amendment right to counsel as a means of establishing
“guidelines to the law enforcement profession."
Roberson, 56 U.S.L.W. at 4592. The interrogation of
appellant, while unquestionably contrary to the present
“guidelines,” was conducted in strict accordance with
established law in 1960 [the date of petitioner's
arrest). We, therefore, conclude that Butler may
challenge his presumptively valid conviction only by
demonstrating that there was an actual violation of his
constitutional rights in 1980. On that dispositive
issue, the record discloses no support for Butler’s
claim for habeas relief.
Slip opinion at 3-4. In its retroactivity discussion, the
modified panel opinion failed to cite or refer to this Court’s
decision in Shea v. Lovisiana, supra, which held that Edwards was
applicable to all cases not yet final on direct review at the
time Edwards was decided.
Dissenting from the denial of rehearing en banc, Chief Judge
Winter, joined by four other judges, asserted that petitioner’s
conviction was obtained in violated of the Fifth Amendment.
Order at 6. First, the dissent stated that petitioner’s
confession was constitutionally inadmissible under Edwards
standing alone. Id. at 7. Chief Judge Winter then stated that
Roberson did not alter the rules of law set forth in Edwards.
In sum, Roberson says that the law is and has been,
since Miranda, that a suspect who has expressed his
desire to deal with the police only through counsel is
not subject to further interrogation about either the
crime he is suspected of having committed or any other
crime until counsel has been made available, unless the
suspect initiates further communication with the
police. There is thus no retroactivity issue presented
in the instant caSe.
Id. at 9 (emphasis in original) (footnote omitted).
1. This Court’s decision in Arizona v.
Roberson did not create a new rule of law,
but merely applied the “bright-line” rule
established in Edwards to a different factual
setting.
In Edwards v. Arizona, 451 U.S. 477 (1981), this Court held
that “when an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that
right cannot be established by showing that he responded to
further police-initiated interrogation even if he has been
advised of his rights." 451 U.S. at 484 (footnote omitted).
Rather once an individual invokes his Fifth Amendment right to
counsel, he is not subject to further interrogation by the
authorities unless “the accused himself initiates further
communication, enchenges, or conversations with the police.” Id.
at 484-85. The Court realized that it would be "inconsistent
with Miranda [v. Arizona, 384 U.S. 436 (1966)] and its progeny
for the authorities, at their instance, to reinterrogate an
accused in custody if he has clearly asserted his right to
counsel." Id. at 485. This “bright line” rule of Edwards has
been consistently reaffirmed by this Court. See e.g., Smith v.
Illinois, 469 U.S. 91, 98 (1984); Michigan v. Jackson, 475 U.S.
625 (1986) (applying Edwards rule to invocation of Sixth
Amendment right to counsel).
Last term in Arizona v. Roberson, this Court applied the
Edwards rule to a slightly different factual setting. In
Roberson, the accused was arrested and advised of his Miranda
rights. He indicated that he wanted to speak with an attorney
before answering any questions. While in custody, a different
officer questioned him about a different offense. After again
being advised of his rights pursuant to Miranda--and waiving
those rights-—-Roberson gave an incriminating statement to the
police as to the second offense. The statement was suppressed by
tne trial court, and the suppression order was affirmed on
appeal. Certiorari was granted and this Court affirmed the
decision of the Arizona Court of Appeals. The Court held that
Roberson’s case was directly controlled by Edwards v. Arizona,
and, therefore, the fact that the request for counsel occurred in
the context of a separate investigation was without legal
significance. 108 S.Ct. at 2098.°
On at least two points, the judges in the majority and the
fiv: judges dissenting from the denial of rehearing en banc in
petitioner’s case were in agreement. First, both the majority
and the dissent acknowledged that under this Court’s analysis in
Arizona v. Roberson, petitioner’s conviction was constitutionally
infirm. Secondly, both sides appeared to acknowledge that
Arizona v. Roberson was not new law but rather was merely an
application of the "bright-line" rule created in Edwards to
Slightly different facts. See Order at 2-3 ("[t]he subsequent
interrogation concerning the Lane murder, occurring during
continuous custody, was contrary to the Edwards rule as modified
in Roberson," and discussing the “Edwards-Roberson limitations on
police interrogation"); Order at 8 ("Roberson did not alter these
[Edwards] rules of law") (Winter J., dissenting from the denial
of rehearing en banc).
These points of agreement were compelled by this Court’s
decision in Roberson. There, the Court framed the question as
whether to “craft an exception to [the rule of Edwards v.
Arizona) for cases in which the police want to interrogate a
suspect about an offense that is unrelated to the subject of
their initial interrogation." 108 S.Ct. at 2096. The majority
ultimately concluded that "[plJetitioner’s attempts at
“That a suspect’s request for counsel should apply to any
questions the police wish to pose follows, we think, not only
from Edwards and Miranda, but also from. . [
Spring, 479 U.S. 564 (1987)]." 108 S.Ct. at 2099.
on
\
distinguishing the factual setting here from that in Edwards are
. unavailing," and affirmed the judgment of the Arizona Court
of Appeals. 108 S.Ct. at 2100-01. Thus Roberson involved
nothing more than a straightforward application of the Edwards
rule to sligntly different facts. Under these circumstances, the
question before this Court is whether the bright-line rule of
Edwards v. Arizona applies retroactively to petitic -r’s case.‘
Because this Court has already answered this question in the
affirmative in Shea v. Louisiana, gupra, the Court of Appeals’
ruling to the contrary should be reversed.
2. Because petitioner’s case was
pending on direct appeal at the time that
this Court decided Edwards v. Arizona, the
Court Appeals incorrectly determined that the
"“bright-line" rule established in Edwards did
not apply retroactively in this case.
The Court of Appeals determined that the "“bright-line" rule
established in Edwards v. Arizona, supra, and reaffirmed last
Term in Arizona v. Roberson, did not apply in petitioner’s case
because the Edwards rule was not in effect at the time of his
arrest in 1980. The panel stated:
We, therefore, conclude that Butler may challenge his
presumptively valid conviction only by demonstrating
“See United States v. Johnson, 457 U.S. 537, 548 (1982). In
Johnson, this Court recognized:
\
[W]hen a decision of this Court merely has applied
settled precedents to new and different fact
situations, no real question has arisen as to whether
the new decision should apply retrospectively. In such
cases, it has been a foregone conclusion that the rule
of the later case applies in earlier cases, because the
later decision has not in fact altered that decision in
any material way.
Id. at 549 (citations omitted). The need for this "threshold
test" is self-evident. If every constitutional decision applying
settled legal precedents to new facts were deemed to give rise to
a "retroactivity" question, no decision would ever have any
precedential effect, since each decision would establish on the
date of its announcement a new starting date for the
constitutional right involved. For this reason, the Court has
invariably insisted upon "automatic" retroactive application of
any decision which "did nothing more than apply settled precedent
to different factual situations." Griffith v. Kentucky, 479 U.S.
314, 324 (1987); gee also Yates v. Aiken, 108 S.Ct. 534, 538
(1988) (because Francis v. Franklin, 471 U.S. 307 (1985) was
“merely an application of the principle that governed our
decision in Sandstrom v. Montana, [442 U.S. 510 (1979)]" it
applied to petitioner’s 1981 murder trial); Truesdale v. Aiken,
480 U.S. 527 (1987) (per curiam); Lee v. Missouri, 439 U.S. 461
(1979) (per curiam).
-10-
that there was an actual violation of his
constitutional rights in 1980. On that dispositive
issue, the record discloses no support for Butler’s
claim for habeas relief.
Order at 4. The modified order of the panel totally ignores one
basic fact which is dispositive of petitioner’s claim: Edwards v.
Arizona was decided while petitioner’s case was pending on direct
appeal to the South Carolina Supreme Court. Thus this Court has
already resolved the retroactivity question presented in this
case. In Shea v. Lovisiana, 470 U.S. 51 (1985), this Court
specifically held that Edwards applied to cases pending on direct
review at the time it was decided. 470 U.S. at 59. See also
Griffith v. Kentucky, 479 U.S. at 328 ("We therefore hold that a
new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases sate or federal, pending on
direct review or not yet final");° Yates v. Aiken, __U.S.__»
108 S.Ct. 534, 537 (1988) (acknowledging that new rules apply
retroactively to cases pending on direct review at time rule was
established). Thus, as Edwards was decided on May 18, 1981, and
the South Carolina Supreme Court did not issue its opinion in
petitioner’s case until February 22, 1982, Shea permits no other
conclusion except that the "“bright-line” rule of Edwards was
applicable in this case. The Court of Appeals was incorrect in
ruling otherwise.© See Shea, supra; see also Lamp v. Farrier,
763 F.2d 994, 997 n. 5 (8th Cir. 1985) (Edwards applied to case
tried before Edwards but pending on direct appeal at time Edwards
was handed down); accord, Flourney v. Marshall, 842 F.2d 875, 878
(6th Cir. 1988); United States ex rel. Adkins v. Greer, 791 F.2d
590, 595 n. 3 (7th Cir. 1986); Greenwalt v. Ricketts, 784 F.2d
‘tn Griffith this Court explicitly reaffirmed its decision
in Shea. 479 U.S. at 325-26.
‘The order of the Court of Appeals denying rehearing relied
exclusively on Allen v. Hardy, 478 U.S. 255 (1986) (holding that
, 476 U.S. 79 (1986) did not apply
retroactively to cases already final on direct review at the time
Batson was decided), and Solem v. Stumes, 465 U.S. 638 (1984)
(holding that Edwards did not apply retroactively to cases
already final on direct review at the time Edwards was decided).
In its December 2 order, the Court of Appeals never discussed the
applicability of--or even cited--this Court’s retroactivity
rulings in Shea v. Louisiana and Griffith v. Kentucky.
atte
1453, 1457 (9th Cir. 1986); Cervi_ v. Kemp, 855 F.2d 703, 705 n. 9
(11th Cir. 1988).
What makes the retroactivity decision reached by the panel
in its modified order all the more mystifying is that the panel
had previously held that Edwards did apply retroactively to
petitioner’s case. Ir. its previous decision, the panel noted
that the district court had erroneously concluded that Edwards
was not applicable because it had not been decided at the time of
petitioner’s trial. Butler v. Aiken, 846 F.2d at 257.
Unfortunately, the district court’s failure to address
this claim on the merits must be regarded as error.
Although Edwards does not have retroactive effect, it
does apply to cases pending on direct appeal at the
time it was decided. Shea v. Louisiana, 470 U.S. 51,
105 S.Ct. 1065, 84 L.Ed.2d 38 (1985). Butler’s appeal
was in fact pending at that time. We must, therefore,
consider whether Butler’s interrogation did produce
incriminating statements in violation of his right to
counsel.
1d.’ Thus in its order modifying its previous opinion, the
panel apparently reversed itself on this issue.
The panel apparently concluded at this stage of the
proceedings that because petitioner’s case was before it in a
federal habeas corpus proceeding, the proper inquiry was whether
Edwards was in effect at the time of petitioner’s arrest and
trial. Order at 3.° However, as this Court’s retroactivity
"The panel ultimately concluded that there was not
constitutional violation because the interrogation took place in
conjunction with a separate investigation. 846 F.2d at 257-58.
This, of course, is the reasoning rejected last term in Roberson.
“The panel stated:
As an initial matter, we reject respondent’s efforts to
distinguish Roberson factually. We assume for the
purposes of decision that the appearance of counsel
with Butler at a bond hearing on the assault charge for
which he was first arrested conclusively demonstrated
invocation of Butler’s Fifth Amendment rights. The
subsequent interrogation concerning the Lane murder,
occurring during continuous custody, was contrary to
the Edwards rule as modified in Roberson. If this case
were before us on direct appeal, we would in all
likelihood be compelled to reverse the conviction and
remand for a new trial. It does not follow, however,
that Butler is entitled to habeas relief based upon a
rule of law that was not in effect at the time of his
arrest and trial.
oti.
decisions reveal, the court in which the case is pending cannot
determine whether the applicability of a decision of this Court.
Rather, the decision properly turns on whether the legal rule in
question was in effect at the time the case became final on
direct review. See Griffith v. Kentucky, 479 U.S. at 328 ("a new
rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct
review or not yet final. .. ."); see also Yates v. Aiken,
supra; Shea v. Lovisiana, supra. If the rule was in effect, or
became effective, at any time prior to the case becoming final on
direct review, then a habeas corpus petitioner is entitled to the
benefit of that rule in his case.’ The decision of the Court of
Appeals’ decision ignores this well settled rule, and cannot
stand.
°at the risk of belaboring the obvious, petitioner would
note that any other conclusion would lead to anomalous results.
If retroactivity of a constitutional rule turned solely on the
stage of the proceedings in which the retroactivity question
arose, without regard to when the rule was established, a state
court could effectively eliminate federal habeas corpus review by
the simple expedient of refusing to give effect on direct appeal
to new constitutional decisions of this Court. This would
essentially give the state courts the power to nullify the
decisions and constitutional principles established by this
Court, without protecting any legitimate state interest. In
short, the rule apparently adopted by the Court of Appeals would
effectively turn the Supremacy Clause on its head.
-13-
CONCLUSION
Because the decision of the Court of Appeals is in direct
conflict with the applicable decisions of this Court governing
the retroactivity of constitutional decisions, the judgment below
should be summarily reversed, and petitioner’s case should be
remanded with instructions to grant the writ of habeas corpus.
Truesdale v. Aiken, 480 U.S. 527 (1980). Alternatively, the
petition for writ of certiorari should be granted.
Respectfully submitted,
JOHN H. BLUME
FRANKLIN W. DRAPER
Attorneys at Law
South Carolina Death
Penalty Resource Center
P.O. Box 11311
Columbia, SC 29211
wre rh Bl
—_ FOR PETITIONER
February 22, 1989.
x=
88-6
APPENDIX A
Ti vA ae
Supreme Court, U.S
FILED
FEB 2 41989
JOSEPH F. SPA'WOL, JR,
CLERK
' James Aiken, Warden, Central
mM . MICROFILMED’
FILED
IN THE UNITED STATES DISTRICT couRT JUN 9 1997
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION ANN A. BI
ant. — CLERK
A S&C
ENTE.
o-7-F7
Horace Butler,
Petitioner,
- .
vs. ORDER
C/A No. 86-1093-3
Correctional Institution, and
Travis Medlock, Attorney
General, State of South
Carolina,
Respondents.
ee ee ed
This matter is before the Court for review of the
Magistrate's Report made in accordance with 28 U.S.C. §
636(b)(1)(B) and the Order of the District Court filed May 9,
1937. a
The Magistrate makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 123 U.S. 261 (1976). The Court is
charged with making a de novo determination of those portions of
the Report and Recommendation to which specific objection is
made, and the Court may accept, reject or modify, in whole or in
part, the recommendation of the Magistrate, or recommit the
matter to him with instructions. 28 U.S.C. § 636(b)(1).
BACKGROUND
Petitioner is incarcerated by the South Carolina Department
of Corrections at the Central Correctional Institute, awaiting
{1 1606
I<)
| ae
execution for the crime of murder. He was indicted in October
1980 in Charleston County. After timely notice that the Circuit
solicitor intended to seek the death penalty, the petitioner was
tried on January 19, 1981 before The Honorable C. Anthony Harris.
A verdict of guilty was returned on January 24, 1981. On January
26, 1981 the jury further recommended imposition of the death
penalty after finding the murder was committed while in
commission of the crime of rape.
Petitioner filed an appeal of his conviction and sentence,
but these were affirmed by the South Carolina Supreme Court on
February 22, 1952. State v. Butler, 277 S.C. 452, 290 S.E.2d 1
(1982). Petitioner then filed a petition for writ of certiorari
to the United States Supreme Court, which was denied on October
12, 1982. Butler v. South Carolina, 459 U.S. 932 (1982).
Petitioner next filed an application for post-conviction
relief. A hearing was held April 1, 1983 before The Honorable
Richard E. Fields. On January 28, 1984 the petition was denied.
An appeal of this denial was filed with the South Carolina
Supreme Court, but the appeal was denied August 27, 1985.
Petitioner then filed another petition for certiorari before the
United States Supreme Court, which was denied. Butler v. South
Carolina, No. 85-5926, filed January 26, 1986.
Petitioner filed a petition for writ of habeas corpus under
28 U.S.C. § 2254 on May 2, 1986 alleging numerous violations of
his constitutional rights. He is currently represented by Dale
Cobb, Esquire, of Charleston. Respondents filed a motion for
summary judgment on June 13, 1986. The Magistrate's Report and
LEA
Recommendation was filed March 9, 1987. In his Report, the
Magistrate recommended that respondents’ motion for summary
judgment be granted. Petitioner filed Objections to this Report
April 10, 1987.
Respondents submit that petitioner has apparently exhausted
all state remedies available and respondents unconditionally
waive the defense of exhaustion as te all issues presented in the
petition.
FACTS
The victim was Pamela Lane, an eighteen year old white
female. At the time of her death, Lane was working as a clerk at
Dodge's, a small convenience store on Highway 17, south of
Charleston. On July 17, 1980 Lane worked the afternoon and
evening shift. During her shift, her sister and brother-in-law
delivered a new Moped to the store for Lane to ride home on. At
10:00 p.m. Lane and another employee closed the store and
prepared to leave. Lane had some difficulty starting the Moped
and called her sister several times. After the last telephone
call at about 10:30 p.m., she successfully started the Moped and
left the store. The other employee told Lane's sister that Lane
was "on her way." Lane was last seen alive heading south on
Highway 17 on her new Moped.
Early the next morning Lane's sister reported her
disappearance. A few hours later several people fishing from a
bridge discovered a body and reported it to the police, who
determined it was the body of Pamela Lane. She had been shot
once in the chest by a small caliber gun. The following day the
we
1608
1s
minister of a local church discovered a Moped partially submergeq
in the pond behind his church. After seeing news reports on the
death of Pamela Lane, he contacted authorities. The Moped was
identified as the one Pamela Lane was riding when last seen,
Six weeks later, on August 30, 1980, Horace Butler was
arrested on ar. unrelated charge and placed in the Charleston,
County Jail. He retained a local attorney, W. McAlister Hill,
who appeared with him at a bond hearing late Sunday evening,
August 31, that same day, but was unable to make bond and
remained in jail. In the early morning of September l, 1980 at
12:50 a.m., Butler was removed from his cell and transported to
the Charleston County Police Department. From that time until
approximately 5:45 a.m., he was interrogated about the murder of
Pamela Lane. During this period Butler made two confessions and
signed two “waiver of rights" forms.! He apparently did not
request his attorney's presence at any time.
In his first confession Butler claimed a friend, named Larry
White, had killed Lane and then sought Butler's help in disposing
of the Moped. After reciting this version, one of the police
officers present told Butler he did not believe the story because
there were too many inconsistencies and because Larry White had
already talked to them. Butler then signed the second waiver
form and confessed to the murder of Pamela Lane. According *°
the second confession, Butler saw Lane on her Moped and followed
her. When he blinked his lights at her she pulled off the road,
1 aA form waiving the rights guaranteed an accused under Miranda
v. Arizona, 384 U.S. 436 (1966).
~* | |
hid the Moped in some bushes and got in his car. After driving
to a wooded area, he claims she suggested sex and began removing
her clothes. After the alleged consensual sex, as she was
redressing, he claims she said she was going to be late getting
home and would cry rape. Butler stated that he panicked and shot
her, then dumped her body off the bridge where it was found. He
claims he then found Larry White who helped him dispose of the
Moped.
After making the second confession, petitioner took police
to the area where these events occurred and identified the actual
scenes where he met the victim, had sexual relations with her and
killed her.
ISSUES
The issues presented in petitioner's Objections are:
1. Ineffective assistance of counsel.
2. Denial of petitioner's Sixth and Fourteenth Amendment
rights to a jury selected from a representative cross section of
the community.
3- Denial of petitioner's Sixth, Eighth and Fourteenth
Amendment rights to a fair and impartial jury by qualifying a
juror who could not vote for a life sentence.
4. Denial of petitioner's Fifth and Fourteenth Amendment
rights to due process by allowing evidence of unrelated prior
crimes.
5. Denial of petitioner's Fifth, Sixth and Fourteenth
Amendment rights by permitting statements to be introduced in
Ll 1610
1611
violation of South Carolina's copy rule (S. C. Code §§ 8-15-50,
19-1-80 and 19-1-90).
6. Denial of petitioner's Fifth and Fourteenth Amendmen+
Tights to due process by failing to instruct the jury thar
voluntary manslaughter was a possible verdict.
7. Denial of petitioner's Fifth, Sixth_and Fourteenth
Amendment rights to be informed of the charges against him
because the state never indicted him for rape.
8. Denial of petitioner's Fourteenth Amendment rights not
to be convicted except upon evidence sufficient to convince a
rational trier of fact of his guilt beyond a reasonable doubt. |
9. Denial of petitioner's Fifth, Sixth and Fourteenth
Amendment rights by use of an impermissible definition for the
term reasonable doubt.
Sixth and Fourteenth
10. Denial of petitioner's Fifth,
Amendment rights by the trial judge's failure to instruct the
i
jury about the consequences of a non-unanimous recommendation of
j
sentence.
{
ll. Denial of petitioner's Eighth Amendment right to an
appropriate review of his death sentence.
12. Denial of petitioner's Fifth, Sixth and Fourteenth
Amendment rights by the impermissible jury instruction presuming
malice from the use of a deadly weapon. |
13. Denial of petitioner's Fifth, Sixth and Fourteenth
Amendment rights by virtue of the trial judge's charging the
definition of rape in lieu of the definition of criminal sexual
conduct during the sentencing phase of petitioner's trial.
pt |
, |
14. Denial of petitioner's Fifth, Sixth and Pourteenth
Amendment rights by the trial judge refusing to charge
circumstantial evidence.
15. Denial of petitioner's Pifth, Sixth ent Pourteenth
Amendment rights by failure of the trial judge to rule on the
petitioner's claims that the statement(s) taken from him were not
the product of a free and vahemtess esiver.
DISCUSSION
l. INEFFECTIVE ASSISTANCE OF COUNSEL.
Horace Butler was represented by William McAlister Hill.
Mr. Hill testified that he had been practicing law in South
Carolina since 1974 and that prior to that time he was a state
magistrate for four and a half years.
Mr. Hill testified that he was initially retained to
represent Butler on an unrelated charge on August 3l, 1980. He
had previously represented Butler in a workman's compensation
case and he had known Butler's father and family for a number of
years.
Petitioner contends that he was denied the effective
assistance of counsel both at the guilt phase of his trial and at
the sentencing phase. Specifically in his Objections, petitioner
has listed seven different areas in which he contends hig trial
counsel was ineffective. ¢
In Strickland v. Washington, 466 U.S. 668 (1984), the United
States Supreme Court gave specific guidance for evaluation of
ineffective assistance of counsel claims:
: 1612
A convicted defendant's claim that counsel's assistance
was so defective as to require reversal of a conviction
or death sentence has two components. First, the
defendant must show that counsel's performance was
deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as
the "counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious
as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a ‘defendant makes
both showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the :
adversary process that tenders the result unreliable.
— ee eee ree 0 ome +
466 U.S. at 687.
The two components of a claim for ineffective assistance *
counsel are commonly called error and prejudice. To senonstrace
error, the "defendant must show that counsel's representation
fell below an objective standard of reasonableness." Id. at 689.
"The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms." Turner v.
Bass, 753 F.2d 352 (4th Cir. 1985). Furthermore, prejudice to
the defense must be present for reversal. Strickland requires
that
[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
error, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
Strickland v. Washington, 466 U.S. at 694; Briley v. Bass, 759
F.2d 1238 at 1247 (4th Cir. 1984).
Strickland noted other areas for courts to be sensitive t°
in its review of these claims. The Court emphasized that
"judicial scrutiny of counsel's performance must be highly
deferential” and that "a court must indulge a strong presumption
Lhe \
that counsel's conduct falls within the wide range of reasonable
professional assiscance," viewing the case as of the time of
counsel's conduct rather than in hindsight, and recognizing
counsel's discretion in the shaping of trial strategy. 466 U.S.
at 689-690.
A. Counsel failed to object to highly prejudicial
testimony regarding the petitioner's propensity “to carry a
pistol.”
At trial the prosecution posed the following question
to Larry White:
Q: Was he [petitioner] known to carry a pistol? The
witness responded affirmatively.
Petitioner contends that failure to object to this
question constitutes ineffective assistance of counsel. The |
South Carolina Supreme Court considered this issue on direct |
appeal.
the admission of the testimony since it was merely
cumulative. Therefore, the admission of this testimony fails
to meet the prejudice prong of the Strickland test.
B. Failing to display even the rudimentary knowledge
of how to proceed with a Jackson v. Denno hearing.
The main contention petitioner advances in this
argument is Mr. Hill's alleged unfamiliarity with the proper
procedure in the suppression hearing. The record reveals
that Mr. Hill was prepared to proceed initially at the
hearing rather than waiting for the state to proceed, as is
customary in such hearings.
1614
Ltr
That court concluded that there was “no error” in
1615
opinion and his understanding of the totality of the
In its consideration of this issue the South Carolina |
Supreme Court concluded that Mr. Hill desired to proceeg
first as a matter of trial tactics based upon an informed
circumstances surrounding the confession. The Strickland
test mandates that this Court recognize counsel's discretion
in the shaping of trial strategy. Nevertheless, inasmuch as
the state proceeded first in presenting its case in the
hearing, there could be no prejudice arising from Mr. Hill's;
intended strategy.
C. Pailure of counsel to recuse himself and testify at’
the Jackson v. Denno hearing.
Petitioner contends that only Mr. Hill knew that he had
warned the police not to talk to the Petitioner. At trial
the police officers specifically denied that counsel told
thdém not to talk to the petitioner. (See Tr. pp. 88, 96,
113).
Nevertheless, the objection is without merit. Any
instruction to the police not to talk to the petitioner
could not have related to the murder charge. At the time of
the alleged instruction none of the individuals knew that
the petitioner was a suspect in the murder investigation.
Petitioner's Sixth Amendment right to counsel had not
yet attached as to the murder charge. Maine v. Moulton, 7
U.S. __, 106 S.Ct. 477 (1985). Furthermore, Miranda “
designed to protect the suspect's Fifth Amendment rightS-
It will not be extended to attorney's communications to the
pbtt
police concerning his client. Moran v. Burbine, U.S.
___-» 106 S.Ct. 1135 (1986).
Therefore, the failure of counsel to recuse himself and
testify about the warnings did not deprive the petitioner of
any constitutional protections. Nor is any prejudice to his
case apparent from this omission.
D. Failure to investigate, prepare and present alibi
witnesses.
Petitioner claims that trial counsel failed to make a
sufficient preliminary investigation into the possibility of
presenting an alibi defense. Mr. Hill testified that he
made a full investigation as to all possible alibi witnesses
for the petitioner. (App. at 287, et seg.). Therefore,
this ground for relief is patently meritless under
Strickland.
E. PFailure to specifically interview Margo Brown.
The error complained of in this assertion is that
counsel failed to interview Ms. Brown, a potential State's
witness. Mr. Hill testified that he had extensive knowledge
of the relationship between Ms. Brown and the petitioner.
He had in fact defended the petitioner in an action brought
by Ms. Brown arising from his allegedly “threatening to
throw her baby in the fire." (App. at 291). Mr. Hill was
acutely aware of her “deep hatred for Horace."
In light of counsel's familiarity with Ms. Brown and
her failure to testify, this Court cannot discern any
prejudice to petitioner's case resulting from failure to
WA 1616
1617
interview Ms. Brown; nor has petitioner demonstrated any
i
such prejudice.
F. Counsel failed to prepare or present Mitigating
testimony despite his avowed knowledge that it wag.
i
available. |
Although Mr. Hill did not present _any mitigation!
testimony, the record is replete with testimony regarding
his consideration of mitigation witnesses, his discussions
with the petitioner regarding these witnesses and his
reasons for not calling each of the witnesses considered.
(See App. 66-74, 161-172, 192-199, 289-290, 314-315,
PP-
350-358, 423). Mr. Hill adequately explained his decision
not to use these witnesses from a strategical point of view.
Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977).!
Petitioner has failed to prove that his tactics were
unreasonable under prevailing professional standards or that
the presentation of such evidence would have rendered a more
favorable sentence.
G. Pailure to have petitioner psychiatrically
evaluated for the sentencing phase of the trial.
At the trial Mr. Hill presented the testimony of the
petitioner's elementary school principal, Mr. Isiah Frazier.
Mr. Frazier testified as to the petitioner's poor |
record and that he left school at age sixteen while he was
in the fourth grade. (Tr. 1004-1008).
PP-
During the post-conviction hearing petitioner presented
int
the testimony of Dr. John Roitzsh, a clinical psychologis*-
bl |
This testimony indicated that petitioner tested as a
borderline mental retardate. 152, 156).
(App. PP-
Like the state court, this Court finds that the failure
to present psychological evaluations does not rise to the
level of ineffective assistance of counsel. Although such
evidence may have been beneficial, it would not have
revealed any additional mitigating evidence. The testimony
of Mr. Frazier, if believed, was sufficient to reveal the
message contained in the psychiatric evaluation, i.e., that
petitioner was impaired by a lack of education and low
intelligence level. The absence of the psychiatric
evaluation did not prejudice petitioner's defense.
2. DENIAL OF PETITIONER'S SIXTH AND FOURTEENTH AMENDMENT
RIGHTS TO A JURY SELECTED FROM A REPRESENTATIVE CROSS SECTION OP
THE COMMUNITY.
Petitioner asserts that the jury for his trial was
improperly selected, in that eight potential jurors were excluded
because they opposed the death penalty, thus denying petitioner a
jury which fairly represented a cross section of the community.
The jury as it was eventually empanelled contained nine whites
(one white,
and three blacks; and there were two alternates one
black). were not a
Petitioner has argued that these jurors
representative cross section of the community because no person
unalterably opposed to the death penalty served on the jury.
McCree,
In the recent case of Lockhart v. 476 U.S. , 90
L.Ed.2d 137 (1986), the Court concluded that jurors who are
unalterably opposed to the death penalty may be excluded from
their exclusion
serving during the penalty phase. Furthermore,
1615
be
from the guilt phase does not infringe on a defendant's right to,
an impartial jury. The Court reiterated in Lockhart that a
defendant is not entitled to a jury which statistically mirrors
the make-up of a community, but only to a jury from which members
of a “distinctive group” have not been systematically excluded.
See also Batson v. Kentucky, 476 U.S. -» 90 Li. E.2d 69 (1986).
Although the Lockhart majority stopped short of defining
"distinctive group," the opinion does indicate that individuals
who could not under any circumstances render a capital sentence
(a.k.a. “Witherspoon excludables") do not constitute such a
"distinctive group” for cross section purposes. 106 S. Ct. at
1765.
Therefore, petitioner's Sixth and Fourteenth Amendment
rights to a jury selected from a representative cross section of
the community have not been violated by the exclusion of jurors
who could not recommend a capital sentence.
3. DENIAL OF PETITIONER'S SIXTH, EIGHTH AND FOURTEENTH
AMENDMENT RIGHTS TO A FAIR AND IMPARTIAL JURY, BY QUALIFYING A
JUROR WHO COULD NOT VOTE FOR A LIFE SENTENCE.
Petitioner next alleges that one juror, Jennings B. Knight,
should have been excluded for cause based on his belief that the
/
death penalty is warranted in all cases of murder. The trial
judge questioned Mr. Knight about his ability to apply the law as
it was charged. After considering the responses to these
questions the trial judge was satisfied that Mr. Knight was
properly qualified to sit as a juror.
(1985), the Court
In Wainwright v. Witt, 469 U.S. 412
indicated that a juror may not be excluded for cause unless his
LEA
SF
views on capital punishment would prevent him from performing his
duties as a juror in accordance with his instructions and his
oath. In reviewing the qualification of a juror the trial
judge's factual finding of the juror's capacity is the
determinative inquiry.
Under 28 U.S.C. § 2254(d) federal courts must accord a
presumption of correctness to state court findings of fact. The
statute provides that "a determination after a hearing on the
merits of a factual issue, made by a state court of competent
jurisdiction ... shall be presumed to be correct."
Petitioner has failed to offer any evidence which undermines
the § 2254(d) presumption on this issue. Based on the record and
the trial judge's satisfaction with Mr. Knight's responses, this
Court concludes that he was properly qualified as a juror.
4. DENIAL OF PETITIONER'S FIPTH AND FOURTEENTH AMENDMENT
RIGHTS TO DUE PROCESS BY ALLOWING EVIDENCE OF UNRELATED PRIOR
CRIMES.
Petitioner next asserts that the trial judge allowed a
prosecution witness, Larry White, to testify about matters which
improperly attacked petitioner's character and connected
petitioner to prior crimes. The testimony giving rise to this
objection was elicited by the prosecutor when he asked whether
the petitioner "was known to carry a pistol?" There was no
objection to the question or the witness' affirmative response.
The South Carolina Supreme Court addressed this issue and
concluded that admission of the testimony constituted no error as
a matter of state law.
1620
vy
Absent “circumstances impugning fundamental fairness or
infringing specific constitutional protections," admissibility o¢
evidence does not present a federal question. Grundler v. North
Carolina, 283 F.2d 798, 802 (4th Cir. 1960). This Court discerns
— -
no such unfairness or constitutional infringement in the
admission of this evidence.
5. DENIAL OF PETITIONER'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS BY PERMITTING STATEMENTS TO BE INTRODUCED IN
VIOLATION OF SOUTH CAROLINA'S COPY RULE (S. C. CODE §§ 8-15-50,
19-1-80 AND 19-1-90).
Under South Carolina law, a person who makes a “statement,"
particularly a witness in a criminal proceeding, must be given a
FF
copy of the statement at the time it is made. C. Code §§
8-15-50 and 19-11-80, 90 (1976). Petitioner signed a confession
on September 1, 1980 but was not given a copy until September 22,
1980. The trial judge nonetheless allowed the confession to be
admitted at trial over objection of counsel. The South Carolina
Supreme Court agreed and construed the statutes to mean that the.
witness (or here, the petitioner)
opportunity to review the statement and, if desired, to refute
the statement.
fulfilled since petitioner had nearly four months to review the.
statement before his trial.
A decision on state law by a state court is entitled to be,
given great weight and where they do not infringe on specific
constitutional protections, violations of state law are not
cognizable under 28 J.S.C. § 2254. Chance v. Garrison, 537 F.2d
1212 (4th Cir. 1976) (citing Grundler, supra).
must be allowed ample)
They found that the purpose of the rule had been,
|
|
L |
6. DBNIAL OF PETITIONER'S FIFTH AND FOURTEENTH AMENDMENT
RIGHTS TO DUE PROCESS BY FAILING TO INSTRUCT THE JURY THAT
VOLUNTARY MANSLAUGHTER WAS A POSSIBLE VERDICT.
Despite requests from the petitioner the trial judge refused
to charge manslaughter as a possible verdict. At trial counsel
argued that the victim's alleged threat to accuse the petitioner
of rape was sufficient provocation to justify instruction on the
like the trial
lesser offense. The South Carolina Supreme Court,
judge, disagreed, specifically finding no "legal provocation” in
these circumstances which would warrant an instruction as to
manslaughter.
The elements of a crime are defined by state law.
Specifically, S.C. Code Ann. § 16-3-19 (1976), defines the crime
of murder. The elements of manslaughter are defined at S. C.
Code Ann. § 16-3-50 (1976). This issue raises a question of
proper jury instructions as a matter of state law. The case of
Grundler v. North Carolina, supra, specifically addresses federal
review of jury instructions. Even if this Court disagreed with
the trial judge's ruling or the state court's interpretation of
the law, the issue is immune from federal scrutiny absent limited
circumstances not present herein.
Petitioner's attempt to transform this state law issue into
a due process violation is unpersuasive. Refusal to charge
manslaughter resulted in no fundamental unfairness nor in any
abrogation of a constitutional protection.
7. DENIAL OF PETITIONER'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO BE INFORMED OF THE CHARGES AGAINST HIM.
Petitioner argues that he was “held to answer" for the crime
of rape without first being indicted, in violation of Article I,
Let
1622
1623
Section ll of the South Carolina Constitution.
presented here is whether a person properly charged with capita)
The guestion
murder must be indicted for the aggravating circumstances brought
ut during the trial.
The South Carolina Supreme Court is responsible for
interpretations of state law, unless-and until those laws
infringe on constitutionally protected rights of the individual.
North Carolina, The petitioner was not "held
Grundler v. supra.
to answer" for the separate crime of rape, even though the
evidence of rape affected the severity of his punishment. The
circumstances which increased the severity of his punishment had
to be proven beyond a reasonable doubt. The state met the
constitutionally dictated burden of proof on every element of the
murder charge and the aggravating circumstances.
8. DENIAL OF PETITIONER'S FOURTEENTH AMENDMENT RIGHTS NOT
TO BE CONVICTED EXCEPT UPON EVIDENCE SUFFICIENT TO CONVINCE A
RATIONAL TRIER OF FACT OF HIS GUILT BEYOND A REASONABLE DOUBT.
Petitioner alleges that his sentence should be reversed
because the evidence does not support a finding that he committed
a rape. In his brief petitioner set forth the five factors in
evidence which tended to prove rape and four factors in evidence
which tended to disprove rape.
The South Carolina Supreme Court found the evidence
sufficient to create a question for the jury. It is 4
well-settled principle of law in this state that the "trial court
is concerned only with the existence of evidence, not its weight.”
State v. Butler, 277 S.C. 452, 290 S.E.2d l, at 4 (1982). “Any
evidence direct or circumstantial reasonably tending to prove the
beh
guilt of the accused creates a jury issue." (emphasis added).
State v. Butler, 290 S.E.2d 1, at 4. Therefore, the five pieces
of evidence which tended to prove rape created a jury issue and
provided a basis on which a rational factfinder could have
arrived at an opinion that, beyond a reasonable doubt, petitioner
committed rape. The standard applied by a federal habeas corpus
court in determining the sufficiency of the evidence neither
permits a court to make its own subjective determination of guilt
or innocence, nor requires scrutiny of the reasoning process
actually used by the factfinder. Jackson v. Virginia, 443 U.S.
307 at fn. 13 (1979). Sufficient evidence existed in the record
that the case should have been submitted to the jury on the
aggravating circumstance of rape. There has been no
constitutional infringement in this regard.
9. DENIAL OF PETITIONER'S PIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS BY USE OF AN IMPERMISSIBLE DEFINITION FOR THE
TERM REASONABLE DOUBT.
Unlike jury instructions which are based on state law,
instructions as to reasonable doubt may rise to the level of
constitutional concern. All criminal defendants are considered
innocent until proven guilty beyond a reasonable doubt, a basic
tenet of the due process guaranteed all people by the Fifth and
Fourteenth Amendments. The Supreme Court has never specifically
considered the propriety of instructions which define reasonable
doubt, although it has noted that the attempt to define
"reasonable doubt" has been criticized. See Taylor v. Kentucky,
436 U.S. 478, 488 (1978), and cites therein. The consensus among
1624
courts is that "reasonable doubt" is a phrase generally
understood by laymen, which needs no further definition.
The judge in the instant case defined reasonable doubt threa
times. During the guilt phase, he instructed the jury that it
was
~-- a doubt for which you have a real reason, not a
frivolous doubt, not a whimsical, fanciful doubt,
because you can doubt any proposition if you wanted to,
but a reasonable doubt is a substantial doubt for which
an honest person seeking the truth can give a real
reason. (Tr. 940, line 24-941, line 3).
During the sentencing phase, he redefined reasonable doubt
using the same language. (Tr. 1022, lines 12-16.) After
instructing the jury as to circumstantial evidence, the trial
judge again defined reasonable doubt in the following manner:
The two phrases “beyond a reasonable doubt" and “proof
to a moral certainty” are basically synonymous and they
are the legal equivalent of each other. These phrases,
however, connote a degree of proof which is
distinguished from an absolute certainty. Proof beyond
a reasonable doubt, which the law in its mercy requires
for the benefit of the accused, is not a weak or slight
doubt, but it is a serious or strong or substantial
well-founded doubt as to the truth of the matters
asserted by the state. (Tr. 1026-1027).
Petitioner accurately asserts that several courts have overturned
convictions where a trial judge has defined reasonable doubt in
such a manner that the defendant's burden of proof was increased.
Smith v. State, 247 S.E.2d 925 (Tenn. 1977); and State v. Davis,
482 S.W.2d 486 (Mo. 1972). Those cases disapproved instructions
which equated reasonable doubt with "substantial" doubt. The
Fourth Circuit Court of Appeals has considered this issue in
Smith v. Bordenkircher, 718 F.2d 1273, cert. denied, 104 S. Ct-
2355 (1983); and in Murphy v. Holland, 776 F.2d 470 (4th Cir-
bth
'
}
Ve2
1985). In both cases, that court agreed that the instructions
were ill-advised, but declined to overturn the convictions. The
instructions given in Murphy are similar to those used here, but
the Court upheld their use.- In essence, although the federal
courts may deplore the attempts to define reasonable doubt, that
assertion alone is not sufficient to warrant granting the writ of
habeas corpus.
10. DENIAL OF PETITIONER'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS BY THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE
JURY ABOUT THE CONSEQUENCES OF A NON-UNANIMOUS RECOMMENDATION OP
SENTENCE.
The jury was told by the trial court that a recommendation
of either the death penalty or of life imprisonment must be made
by a unanimous verdict of the jury. Under South Carolina law,
only the recommendation of the death penalty need be unanimous.
S. C. Code Ann. § 16-3-20(c) (197€, as amended). Petitioner
contends this incorrect instruction undermined the reliability of
the sentencing proceeding required by Woodson v. North Carolina,
428 U.S. 280, at 303 (1976), because the instruction injected an
arbitrary element into the jury deliberations.
After the sentencing verdict was returned, the jury was
polled by the trial judge. All the jurors indicated that they
agreed with and voted for the death penalty. This Court is
unable to discern any prejudice resulting from the trial judge's
failure to more fully instruct the jury on the consequences of
their deliberations procedure. Habeas relief will not be granted
based on speculative injury only.
ll. DENIAL OF PETITIONER'S EIGHTH AMENDMENT RIGHTS TO AN
APPROPRIATE REVIEW OF HIS DEATH SENTENCE.
1626
AQ TOA
1627
S.C. Code Ann. § 16-3-25(c)(3) requires the South Carolina
Supreme Court to review every death sentence and determine
"whether the sentence of death is excessive or disproportionate
to-the penalty imposed in similar cases, considering both the
crime and the defendant.”
In its proportionality reviews, the state supreme court has
chosen to compare a given death penalty case only with other
death penalty cases. Petitioner asserts that his case should be
compared with any case similar in circumstances, including those
where the death penalty was not imposed.
"Although a comparative proportionality review may be a
safeguard against arbitrarily imposed death sentences, it is
not required under the Constitution." Shaw v. Martin, 733 F.2d
304, at 317 (4th Cir. 1984); citing Pulley v. Harris, 465 U.S. 37
(1984). Absent constitutional protections, the necessity and
sufficiency of proportionality review remains a question of
state law. Shaw, supra.
12. DENIAL OF PETITIONER'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS BY THE IMPERMISSIBLE JURY INSTRUCTION PRESUMING
MALICE FROM THE USE OF A DEADLY WEAPON.
Petitioner argues that the judge's charge on malice
impermissibly “presumed away" an element of the offense of murder
when he charged:
Malice may also be inferred or presumed from the use of
a deadly weapon in the commission of the homicide.
(Tr. 943).
471 U.S. 307 (1985), and
Petitioner cites Francis v. Franklin,
Sandstrom v. Montana, 442 U.S. 510 (1979), in support of this
The
Francis speaks of three types of presumptions.
Ltt
exception.
first type is a mandatory or irrebuttable presumption, where the
fact is presumed if the state proves certain predicate facts.
This presumption is unconstitutional because it totally removes
the presumed element of the crime from the case. Francis, supra,
at 355, n.5. The second type of presumption is a mandatory
rebuttable presumption. These are usually considered
unconstitutional because they shift the burden of proof to the
defendant. A rebuttable presumption may be constitutional if it
shifts only the burden of production to the defendant, not the
If the instruction
burden of persuasion. Sandstrom, at 515.
could be interpreted by a reasonable juror as requiring the
defendant to prove by any degree of proof that the element of the
crime is not present, then the State has been relieved of its
responsibility and the instruction is unconstitutional.
Sandstrom, at 517.
The third type of presumption is called a "permissible
inference," which may be constitutional because
--. it still requires the State to convince the jury
that the suggested conclusion should be inferred based
on the predicate facts proven. Franklin, at 353.
A permissive inference may still be unconstitutional if the
conclusion would not be naturally drawn from the predicate facts.
See Ulster County Court v. Allen, 442 U.S. 140, 157-163 (1979).
The Supreme Court in Franklin, supra, found that the jury
there was instructed that the presumption could be rebutted, but
held that this charge still had the effect of shifting the burden
of proof to the defendant. Franklin, at 355.
1628
hbKe
1629
The charge to which petitioner excepts is a permissive
inference. It instructs the jury that if the crime was committed
with a deadly weapon, the jury may infer, or presume, malice.
The Francis Court also instructs that "the potentially
offending words must be considered in the context of the charge
105 s.ct. at 1971.
as a whole." Therefore, other portions of
the charge must also be considered to determine if they mitigate
the potential harmful impact of the suspect portion. The jury
was also told
I hasten to tell you that even if the facts proven in
the case are such as to give rise to the inference or
implication of malice, that implication is strictly
rebuttable. (Tr. 943, lines 13-16).
At this point, the instructions would have read as a mandatory
rebuttable presumption. The trial judge continued, however, to
water down the presumption.
It is not binding on you ladies and gentlemen as a
matter of law. And when all of the facts and
circumstances surrounding the use of a deadly weapon in
a homicide have been brought out and presented to a
jury, the presumption itself vanishes and it then
remains as it always does, your responsibility to make
a determination under the facts and circumstances which
have been proven to you: Did the defendant have malice
in his heart and in his mind at the time of the
(Tr. 943, lines
infliction of the fatal injury.
16-24).
The charge, taken as a whole, creates no more than a permissive
inference allowed by Ulster County Court v. Allen, 442 U.S. 140
(1979).
13. DENIAL OF PETITIONER'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS BY VIRTUE OF THE TRIAL JUDGE'S CHARGING THE
DEFINITION OF RAPE IN LIEU OF THE DEFINITION OF CRIMINAL SEXUAL
CONDUCT DURING THE SENTENCING PHASE OF PETITIONER'S TRIAL.
OO Ee Setanta ene
In 1977 the rape statutes, S.C. Code Ann. §§ 16-3-630 to
ALL-
16-3-650, were replaced by statutes which defined criminal sexual
conduct. Petitioner was tried for murder in early 1981. At the
time of petitioner's trial, the death penalty statute listed rape
as an aggravating circumstance (S.C. Code Ann. § 16-3-20), but
the rape statute had been replaced with one for criminal sexual
conduct. Neither side here disputes that petitioner could not
have been charged with rape since the statute had been repealed.
that the trial court
Petitioner here argues two things: first,
was without jurisdiction to use a repealed statute in determining
his sentence; and second, that use of the rape statute relieved
the state of its burden of proof on all elements of the offense.
At the time of the incident, the behavior in question was a
crime under either statute (rape or criminal sexual conduct).
Only the name of the crime had been changed. The South Carolina
Supreme Court has determined that the legislature meant for the
two terms, rape and criminal sexual conduct, to be used
interchangeably. State v. Elmore, 279 S.C. 417, 308 S.E.2d 781
(1983). Their interpretation of state law is not subject to
review by a federal court unless petitioner can demonstrate that
his constitutional rights were violated by this interpretation.
537 F.2d 1212 (4th Cir.
Chance v. Garrison, 1976).
In support of the above issue, petitioner asserts that
substitution of the rape statute for that on criminal sexual
conduct relieved the state of its burden of proving all elements
of the crime.
Rape was defined as the carnal knowledge of a woman by force
and without her consent. Criminal sexual conduct is defined as
LA 1630
sexual battery accompanied by aggravated force. Petitioner has
Claimed that criminal sexual conduct requires the state to prove
the additional element of aggravation.
nate A comparison of the two definitions confirms the state
supreme court's conclusion that the two terms are synonymous.
The State still had to prove the existence of an act of sexual
intercourse, accompanied by some force either actual or
threatened. Therefore, the State was not relieved of proving any
element of criminal sexual conduct by the trial judge's charge on
rape.
14. DENIAL OF PETITIONER'S FIFTH, SIXTH AND FOURTEENTH
AMENDMENT RIGHTS BY THE TRIAL JUDGE REFUSING TO CHARGE
CIRCUMSTANTIAL EVIDENCE.
At the end of the guilt phase of the trial, the judge
refused to charge the jury on circumstantial evidence. The
petitioner argues that if the jury chose to disregard his
confession as being involuntary, the only remaining evidence was
circumstantial, thus necessitating the requested instruction.
Where the state relies upon direct evidence a trial judge
may properly refuse to charge circumstantial evidence. State v.
White, 272 S.C. 384, 252 S.E.2d 294 (1979).
At trial three witnesses, Larry White, Shirley Williams and
Curtis Williams, all testified that the petitioner told them he
had killed a girl on a Moped. Although their recital of events
differed from petitioner's confession, their testimony represents
direct evidence of the petitioner's culpability. Sufficient
direct evidence was admitted to place the trial judge's refusal
bt
of the charge within the parameters of his discretion under South
Carolina law.
Additionally, an instruction on circumstantial evidence is
not constitutionally mandated where adequate instructions as to
reasonable doubt have been given. Holland v. United States, 348
U.S. 121 (1954). ‘ ei °
15. DENIAL OF PETITIONER'S FIFTH, SIXTH AND POURTEENTH
AMENDMENT RIGHTS BY FAILURE OF THE TRIAL JUDGE TO RULE ON THE
PETITIONER'S CLAIMS THAT THE STATEMENT TAKEN FROM HIM WAS NOT THE
PRODUCT OF A FREE AND VOLUNTARY WAIVER.
Horace Butler was arrested the night of August 30, 1980 on
an unrelated charge of assault and battery with intent to kill
for an incident which occurred several weeks earlier. (Tr. 34).
That charge was later dismissed. (Tr. 118). The four officers
who arrested him were the same four who were present when he
confessed to the murder of Pamela Lane. Twenty-four hours
later, at about 8:30 p.m. on August 31, he appeared with his
attorney at a bond hearing on the unrelated assault charge.
After the bond hearing, he was returned to the Charleston County
Jail. Butler's attorney contends that after the bond hearing he
told the officers not to question Horace (on the unrelated
assault charge). The officers have stated that they do not
remember such an instruction. Approximately four hours later, at
12:15 a.m. on September 1, 1980, he was taken from the jail to
Charleston County Police Headquarters. Between 12:50 a.m. and
2:55 a.m., he was questioned about the death of Pamela Lane and
made his first statement, in which he stated that Larry White
killed Pamela Lane, but that he (Butler) helped hide the Moped.
1632
be
Between 2:55 a.m. and 5:45 a.m., Butler changed his first
statement and confessed to the murder himself.
According to testimony given by police, Butler was never
coerced or intimidated in any way. He was informed, however,
that Larry White had already talked to the police. He was asked
at the jail if he wanted to go to police headquarters. (Tr. 41).
Prior to any interrogation the police informed Butler that they
were charging him with the murder and kidnapping of Pamela Lane.
(Tr. 42). They inquired whether Butler was sleepy and whether he
was under the influence of any drugs or medication. (Tr. 42).
The officers read him his Miranda rights and explained each of
(Tr. 44).
the individual rights sequentially. According to the
police Butler indicated that he understood his rights. (Tr. 45).
He signed two separate waivers of those rights during the course
of the interrogation. (Tr. 44-45, 48 and 56). Two or three
thirty minute breaks were provided throughout the five hour
period during which the police and petitioner consumed coffee,
water and doughnuts. (Tr. 54 and 62). The officers testified
that Butler was never alone with a single officer during the
54 and 114). Throughout the
course of the interrogation. (Tr.
conversations Butler was responsive to the officers' questions.
70). After signing the second confession at 5:45 a.m.,
(Tr.
Butler indicated again that he was not tired and voluntarily led
officers to the scenes where he intercepted the victim, where the
sexual intercourse and shooting occurred and where he dumped the
63). He was returned to the jail at about 10:30 a.m.
body. (Tr.
on September 1, 1980.
.
Butler's version of the events varies considerably. He
claims that when an officer arrived at the jail to pick him up,
he was told he might be going home. (Tr. 97-98). After his
arrival at police headquarters, he asserts the police abused
him verbally and physically. He claims the officers threatened
to arrest his whole family. (Tr. 100).2
After hearing testimony at the suppression hearing
from Butler, the police officers involved, and Butler's former
school principal, who testified about Butler's low intelligence
level (Tr. 91-94), the trial judge made the following findings of
fact (Tr. 122-123):
A. Defendant-petitioner was afforded his Pifth Amendment —
rights required by Miranda; and |
B. The statements he gave were voluntary and admissible at
trial.
Petitioner now asserts that his Fifth and Sixth Amendment |
rights to counsel were violated and raises three specific |
questions as to this issue:
A. Whether the right to counsel had attached;
B. Whether petitioner effectively waived that right; and
C. Whether police conduct violated that right.
Those questions also require that we consider whether or not
petitioner's confession was voluntary.
2 petitioner's father was arrested and charged with being an
accessory after the fact, relating to Lane's murder, on September
1, 1980. (App. 30).
) ee
1634
Ses
(T]he ultimate question of whether, under the totality
of the circumstances, a challenged confession was
obtained in a manner compatible with the requirements
of the Constitution to be a matter not entitled to a
presumption of correctness under 28 U.S.C. § 2254(d)
but rather a matter for independent federal
—~ - determination. Miller v. Fenton, U.S. , 106 Ss,
Ct. 445, 88 L.Ed.2d 405 (1965). In 80 holding the
Court recognized that “subsidiary factual questions
such as ... whether in fact the police engaged in the
intimidation tactics alleged by the defendant ... are
entitled to the § 2254(d) presumption." Milier, 106 Ss.
ct. at 451.
Nathan A. Rice, et al.,
Prederick Wayne Thomas v. Op. No.
85-7552, at p.5 (4th Cir. 5/14/87).
A. Petitioner's Sixth Amendment Right to Counsel.
Despite contradictory versions of the events which occurred
1980, several facts emerge
August 30 through September l,
uncontradicted. All of the events prior to midnight of August 31
(Butler's arrest, detention, retention of counsel, and bond
hearing) apparently pertained only to the unrelated assault
All events occurring after midnight of August 31
(Butler's removal from jail, interrogation,
charge.
and confession)
related to the eventual murder charge. Attention apparently
shifted to Butler because White was also in custody and had
implicated Butler (Tr. 53), but the record is completely devoid
of any indication as to when police attention focused on Butler.
However, there is no evidence that there was any subterfuge by
the police in charging Butler on the original (unrelated) assault
charge.
Butler was informed at the start of the interrogation that
"Right now we are charging you with murder and kidnapping." (TT-
According to police accounts, he thereafter waived
1 DA
42, line 8).
his right to counsel and his right to remain silent and,
eventually, confessed to the crime.
There are several questions raised by these facts. The
right to counsel attaches at the start of a custodial
interrogation in order to safeguard a suspect's right to be free
of self-incrimination under the Fifth Amendment. Miranda
v. Arizona, 384 U.S. 436 (1966). The separate right to counsel
under the Sixth Amendment does not attach until a suspect has
Moran v.
formal proceedings initiated, usually by arraignment.
Burbine, U.S. , 106 S. Ct. 1135 (1986). Specifically, the
right to counsel under the Sixth Amendment does not exist prior
to “the initiation of adversary judicial criminal proceedings -
whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment." United Staes v. Gouveia, 467 U.S.
180, 188, quoting Kirby v. Illinois, 406 U.S. 682, 688-689 (1972).
The right may attach as early as the time of arrest, United
States v. MacDonald, 456 U.S. l, 6-7 (1982), but the Court in
Gouveia, supra, at 190, declined to hold that an arrest always
triggers the right to counsel. In short, a defendant has a right
to counsel under both the Fifth and Sixth Amendments, but that
right attaches at different times under each Amendment. See
discussion in Michigan v. Jackson, U.S. , 106 S. Ct. 1404
(1986). A series of recent Supreme Court cases, including Moran
v. Burbine and Michigan v. Jackson, supra, have discussed when
and under what circumstances a suspect's Sixth Amendment right to
counsel attaches.
1636
Lotl-
|
One decision is particularly close to the facts in the
instant case. In Maine v. Moulton, 106 S. Ct. 477
(1985), a
suspect had been indicted for one crime, but was out on bong
awaiting trial. A co-defendant offered to act as an informer and
police arranged to record conversations between the two men.
Evidence was gathered in this manner both. as to-the first crime
and as to a second, planned crime. The Court, in a decision
written by Justice Brennan, held that the information gathered in
this manner was inadmissible as to the first crime because the
suspect's Sixth Amendment right to counsel had attached when he
was formally charged with the crime, and thereafter, police could
not act in any way which circunvented that right.
The Court also
held, however, that the evidence gathered as to the second crime
would be admissible in a trial on those charges, because the
right to counsel had not yet attached as to that crime. Maine v.
Moulton, supra, n. 16. In short, the Sixth Amendment right to
counsel attaches separately for each crime, and its existence for
one charge does not “carry over" to another charge.
In the instant case, petitioner's separate right to counsel
under the Sixth Amendment had attached as to the unrelated
assault charge, but as to the murder charge, no event which
triggers the right to counsel had yet occurred. 3
B. Petitioner's Fifth pmpndnent Rights.
Petitioner's Fifth eneateen rights attached, however, at
the time of his arrest, when he was taken into custody. Part of
3 The arrest warrant was not issued until after petitioner gave
a statement. (App. 437-440).
pt
'
petitioner's Fifth Amendment rights include the right to counsel
to protect his privilege against self-incrimination, but that
right may be waived along with other protections offered by the
Pifth Amendment. Worth Carolina v. Butler, 441 0.S. 369 (1979).
One question is whether police had the right to initiate
questioning about the murder knowing petitioner had retained an
attorney for the assault charge. Police may reinstitute
questioning after a suspect has requested an attorney, as long as
an attorney has been available to the suspect in the interim.
Halliday, 658 F.2d 1103 (5th Cir. 1981), cert. denied,
U.S. V.
454 0.S. 1127 (1981). In short, if a suspect requests an
attorney and is allowed to see one, police may thereafter
attempt further questioning despite the absence of counsel. 4
The suspect still has the right to remain silent or to terminate
the questioning, but police are not prohibited from periodically
inquiring if the suspect will talk. Michigan v. Mosley, 423 U.S.
96 (1975). In Mosley, a suspect arrested on a robbery charge was
given his Miranda warnings and specifically declined to talk to
police officers. Several hours later, he was again given his
Miranda warnings and questioned about a murder, to which he
confessed. Mosley, supra, at 98. The Court allowed the use of
that confession because Mosley never attempted to invoke his
Fifth Amendment rights during the second questioning about a
4 most fact situations in the cases reviewed are similar to the
situation here. The defendant's attorney was not present, but
defendant did not request his presence, in spite of being given
another set of Miranda warnings, nor did defendant attempt to
cut off questioning in any other manner.
bit
1638
petitioner's Fifth Amendment rights include the right to counsel
to protect his privilege against self-incrimination, but that
right may be waived along with other protections offered by the
Pifth Amendment. North Carolina v. Butler, 441 U.S. 369 (1979).
| One question is whether police had the right to initiate
questioning about the murder knowing petitioner had retained an
attorney for the assault charge. Police may reinstitute
questioning after a suspect has requested an attorney, as long as
an attorney has been available to the suspect in the interim.
U.S. v. Halliday, 658 F.2d 1103 (Sth Cir. 1981), cert. denied,
454 U.S. 1127 (1981). In short, if a suspect requests an
attorney and is allowed to see one, police may thereafter
attempt further questioning despite the absence of counsel.4
The suspect still has the right to remain silent or to terminate
the questioning, but police are not prohibited from periodically
inquiring if the suspect will talk. Michigan v. Mosley, 423 U.S.
96 (1975). Im Mosley, a suspect arrested on a robbery charge was
given his Miranda warnings and specifically declined to talk to
police officers. Several hours later, he was again given his
Miranda warnings and questioned about a murder, to which he
confessed. Mosley, supra, at 98. The Court allowed the use of
that confession because Mosley never attempted to invoke his
Fifth Amendment rights during the second questioning about 4
4 most fact situations in the cases reviewed are similar to the
situation here. The defendant's attorney was not present, but
defendant did not request his presence, in spite of being give"
another set of Miranda warnings, nor did defendant attempt t°
cut off questioning in any other.manner.
pit
Mn)
different crime. Specifically, the . second interrogation did not
undercut defendant's earlier decision not to answer inquiries
about the first crime, and the questioning focused only on a
crime different in time, place and nature from the first crime.
Petitioner refers this Court to United States, ex rel.
Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987). For purposes
of this inquiry, whether police may initiate an interrogation
after the Fifth Amendment right to counsel has attached, Espinoza
presents an identical factual situation to the instant case. The
Seventh Circuit Court of Appeals affirmed the habeas relief
granted below for different reasons. The court of appeals
granted relief on the ground that the police violated Espinoza's
Fifth Amendment right to counsel by initiating an interrogation
after Espinoza had impliedly invoked his Fifth Amendment right to
counsel by accepting an attorney at a previous arraignment on an
unrelated charge. The Court held that Espinoza's waiver, even if
otherwise valid, was ineffective since the police violated the
prophylactic rule established by Edwards v. Arizona, 45l U.S. 477
(1981), when they initiated the interrogation.
This Court need not consider the propriety of the principles
established in Espinoza inasmuch as the underlying ruling in
Edwards v. Arizona may not be applied retroactively. Solem v.
Stumes, 465 U.S. 638 (1984). Petitioner was convicted January
24, 1981. The sentencing phase of his trial was concluded on
January 26, 1981. Edwards was decided May 18, 1981.
Having concluded that the police did not wrongfully
reinstitute questioning, the next issues that must be resolved
1640
LA
dad
are whether petitioner made both a voluntary and a knowing and
intelligent waiver of his Fifth Amendment right to counsel,
These are separate inquiries. Wilson v. Murray, 806 F.2d 1232
(4th Cir. 1986).
A confession cannot be held involuntary and therefore
inadmissible under the Due Process Clause unless it is linked to
Connelly, U.S.
coercion by government agents. Colorado v.
, 107 S. Ct. 523 (1986).
Many of the crucial facts concerning this inquiry are
disputed. The police repeatedly testified that they read and
explained petitioner's Miranda rights to him. The officers also
stated that neither verbal nor physical abuse occurred during the
they contended, no one officer was
interrogation. Furthermore,
ever alone with the petitioner. Ostensibly, the reason for this
policy is to guard against the coercive conduct alleged here by
an overzealous officer.
In direct contradiction, the petitioner testified that he
was beaten and verbally abused. His statements regarding
physical abuse are significantly undermined by the fact that his
attorney visited the petitioner within one hour of his return to
jail. (Tr. 108). Despite this narrow time lapse the attorney
did not attempt to testify about the petitioner's condition at
that time or the presence of any marks from the alleged abuse.
Petitioner's credibility is hampered further by his inconsistent
statements relating to advice from his attorney. At ‘he
suppression hearing the petitioner did not remember his attorney
telling him not to speak to the officers. (Tr. 96, ln.
pte
at the post-conviction relief hearing, he clearly remembered the
admonition. (App. 222, ln. 8).
An undisputed fact of importance remains that the petitioner
signed two waiver of rights forms.
According to Miller v. Fenton,
U.S. e 406 8S. Ct. at
451 (1986), a trial judge's conclusion that the police did not
engage in intimidation tactics is entitled to the § 2254(d)
presumption of correctness. At the suppression hearing the trial
judge ruled that the confession was voluntary. (Tr. 121).
This Court concludes based on the record and the trial
judge's ruling that the statements were voluntarily given.
We must next consider whether the waiver of the right to
counsel was a knowing and intelligent waiver. We need not decide
whether petitioner's decision was wise, but only whether it
was made with an understanding of the protections involved.
According to the police, Butler was alert and responsive
throughout the interrogation. (Tr. 42, 62, 63, 70). He appeared
to understand and assented to his understanding of his Miranda
rights as those rights were explained to him. (Tr. 44-45).
Despite the petitioner's statements at his post-conviction relief
hearing that he did not know what a confession or a jury trial
were (App. 229-230), this Court concludes that Butler possessed
the ability to understand and comprehend his legal rights. Both
the petitioner and his attorney indicated that Butler actively
participated in his trial and the negotiations preceding the
trial. Petitioner discussed the following topics at length with
his attorney: the events of his interrogation (App. 229-230),
1642
ys |
guilty plea negotiations (App. 234-235), selection of witnesses
and the substance of their testimony (App. 231-232) and the
strategic implications of his testimony (App. 237).
—- Additionally, the petitioner and his elementary school
G. ROSS ERSON, a
principal, Isiah Frazier, testified tht he possessed some UNITED STATES DISTRICT JUDGE
literacy skills. (App. 208; Tr. 93). Lastly, the petitioner was Anderson, South Carolina
not unfamiliar with police procedure. He testified that he had june 5 ™ 1987. ‘ ne 7
been arrested on four previous occasions. (Tr. 104). a A PUD COPY
~-~~~: Ax A. Bireh,
Based on this testimony, this Court concludes that the . wee
petitioner made a knowing waiver of his right to counsel. Having Deputy Cicrk
made a valid waiver of his Fifth Amendment rights, petitioner was
not entitled to an attorney under the Fifth Amendment. His Sixth
Amendment right to counsel had not yet attached for the murder
charge since no formal proceedings in the prosecution of that
charge had been instituted.
CONCLUSION
After reviewing the record, the applicable law, and the
Magistrate's Report, which is hereby adopted in full, the Court
finds that there is no genuine issue as to any material fact and
that the respondents are entitled to judgment as a matter of law.
IT IS, THEREFORE, ORDERED that the respondents' mot.on for
summary judgment be and hereby is granted and this case is
dismissed.
IT IS SO ORDERED.
wo og | ‘©, | 1644
—_— ow
*
BUTLER v. AIKEN 259
Cite as 846 F.2d 255 (4th Cir. 1988)
that might have sent mixed signals regard-
ing his continuing right to request counsel.
Certainly, if Butler had been released on
bond and then rearrested an hour later on
murder charges, the authorities would have
been permitted to engage in proper interro-
gation. We see no reason for a different
result simply because the custody was con-
tinuous.
Properly initiated interrogation on entire-
ly new charges does not intrude into an
accused’s previously invoked rights but
rather offers that accused an opportunity
to weigh his rights intelligently in light of
changed circumstances. When, as oc-
curred in this case, the accused then freely
waives any constitutional right to counsel
and provides voluntary statements of an
incriminating nature, there is no justifica-
tion for undermining the search for truth
by suppressing those statements.
Unlike the Seventh Circuit, we perceive
no conflict between this conclusion and the
Supreme Court’s reasoning in Colorado v.
Spring, supra. A voluntary waiver of
rights by an accused in custody-conclusive-
ly demonstrates that the accused does not
find the general custodial atmosphere un-
duly coercive. The coercive nature of the
custodial environment does not change sim-
ply because the subject of the interrogation
shifts. There is, therefore, as the Court in
Spring recognized, no reason why the au-
thorities should renew the Miranda warn-
ings each time a new topic is raised in
interrogation. The accused has received all
of the “prophylactic” protection to which
he is entitled.
The scope of the invoked fifth amend-
ment right to counsel presents an entirely
distinct conceptual issue. The question is
no longer whether the authorities have met
their responsibility, but whether the ac-
cused wishes to deal with the authorities
Personally or through counsel. Knowledge
of the charges is clearly relevant in this
area. Logically, the decision to seek coun-
sel may change depending upon the ac-
cused’s assessment of his circumstances.
There is, therefore, no compelling reason to
assume that the invocation of a right to
counsel on one offense automatically ap-
plies to later charges brought to the atten-
tion of the accused. Certainly, there is no
reason why the authorities cannot, at least,
inquire if the accused wishes to deal with
the new charges through counsel.
This Court has recently expressed seri-
ous reservations concerning the use of per
se reversal rules in federal habeas proceed-
ings. Perry v. Leeke, 832 F.2d 837 (4th
Cir.), cert. granted, —— U.S. ——, 108 S.Ct.
1269, 99 L.Ed.2d 480 (1988). While a feder-
al habeas court must ensure that a petition-
er’s constitutional rights have been scrupu-
lously observed, it must also be aware of
societal cost attendant to a reversal of a
state criminal conviction. Fidelity to the
law, of course, demands adherence to es-
tablished “bright line” per se rules such as
that articulated in Edwards even when
they result in reversal of otherwise valid
criminal convictions. Unlike the Seventh
Circuit, however, we are not inclined to
extend those rules to circumstances where
they are unjustified and unnecessary
III
We are, therefore, fully satisfied that
petitioner's confessions, preceded by appro-
priate warnings and a voluntary waiver of
fifth amendment protections, were not ob-
tained in violation of his constitutional
rights or the prophylactic rule of Edwards
v. Arizona. Accordingly, the denial of ha-
beas relief to petitioner is affirmed.
AFFIRMED
'
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= BUTLER v. AIKEN O55 iE |
v. : o j ;
Guncnten th tin taints, 00m iH | : at 256 846 FEDERAL REPORTER, 2d SERIES
idams Corp., 198 Va. at 160, 93 ag — As sel on enpraoone —_ of assault — ; é veloped at trial, Lane, a clerk at a conve. White, had killed Lane and then sought his .
might the district pen wane t oe _—— mor - — . rs beet oes nience store north of Charleston, South help in disposing of the moped. When tT
rd as es to the order of events may not be entire: § and there was no reimerrogat Carolina, was last seen alive when she left police told Butler that they did not believe 7
ase t ly accurate, the quoted portions of the sen- offense. ' ~~ =
ry) her place of employment at approximately the story, he offered a second confession in Po
ut it tences are accurate quotes and the sen- 4 ' ee =
san Chamasines ane qubatantialle eamnest Affirmed. 10:30 p.m. on July 17, 1980. At that time, which he admitted to killing Lane. Accord- “y
i ron of the trial testimony Though o she was riding a new moped that had been ing to the second confession, Butler saw 3
. ' ‘ : ai
he showing of actus) malice by clear and con- delivered to her earlier that evening. She Lane riding on her moped and followed her.
Smee vincing evidence could overcome privilege, 1. Courts €100(1) never arrived at her home. When he blinked his automobile lights at
That see The Gazette, Inc. v. Harris, 229 Va. 1, Rule in Edwards v. Arizona that ac- The next morning, Lane's sister reported her, she pulled off the road, hid the moped
yblem: 18, 325 S.E.2d 713, 727 (1985), cert. denied, cused is not subject to further police-initi- her disappearance to the authorities. A in the bushes, and voluntarily accompanied
theo 472 U.S. 1032, 105 S.Ct. 3513, 87 L.Ed.2d ated interrogation, after he has expressed few hours later, near a bridge, fishermen im in a drive to a nearby wooded area.
e Un- 643 (1985), there is nothing in the record desire to deal with police only through discovered a body which was subsequently Butler claimed that Lane engaged in con-
tion,” before us from which we could infer mal- counsel, until counsel has been made avail- identified as that of Pamela Lane. She had %¢nsual sex with him and then threatened
eland, ice. Therefore, the qualified privilege ap- able to him, although not retroactive, does been shot once in the chest by a smal] ‘ “Cry rape” when she realized that she
1 the plies and the summary judgment in favor apply to cases pending on direct appeal at caliber gun. The following day a local would be late getting home. Butler main-
John- of The New Yorker is hereby affirmed. time it was announced by United States minister found a moped submerged in a ‘ained that he panicked, shot Lane with a
reland AFFIRMED IN PART, REMANDED IN Supreme Court. U.S.C.A. Const.Amend. 5. pond behind his church. The moped was handgun in his possession, and then
eceive PART mee, identified as the one Lane was riding when dumped her body off a bridge. He further
i. 0 2. a Se eee . last seen. claimed that Larry White helped him dis-
spira- olice-initiated questioning of suspect . se of the moped. Butler later took police
° about murder did not intrude on suspect’s On August 30, 1980, Butler was arrested P° “ , * ‘
: on an unrelated charge of assault and bat- to Gis anes waeve Hho events aiageny ¢
these previously invoked right to counsel on un- neee end of a " curred and identified the location of Lane’s
‘ related charge of assault and battery ry and placed in the Charleston County death
erson where arrest on assault charges was not a Jail. Butler retained local counsel who ap- i
was a sham and there was no reinterrogation on peared with him at a bond hearing on Au- Butler was subsequently indicted and
same offense. U.S.C.A. Const.Amend. 5. gust 31, 1980. He was unable to make brought to trial on the charge of murder in
B spe Horace BUTLER, Petitioner-Appellant, bond, however, and was returned to custo. the first degree. After a motion to sup
fe . dy in the County Jail. Butler's attorney press his custodial statements was denied,
to lla- : ate , '
Alez- James AIKEN, Warden, Central Correc- Dale Thomas Cobb, Jr. (Belk, Howard, ae = ™ eg a ee pot ca —
. 154 tional Institute; Travis Medlock, Attor- Cobb & Chandler, P.A., on brief). for peti- P —_ nage WOES pene officers , ; ; , s jury
. 154, ) ; not to question Butler further. The offi- found him guilty of Lane’s murder and, in
state- ney General, State of South Carolina, tioner-appellant. “ine ; .
] Respondents—Appellees cers, however, testified that they remem- 28 separate proceeding, sentenced him to
» only ‘ Donald John Zelenka, Chief Deputy Atty. bered no such instruction. death after concluding the murder had oc-
der to No. 87-4004. - i i
pe | 0. 87 Gen., for respondents-appellees. At approximately 12:15 a.m. on Septem- curred while the defendant was engaged in
ascer- United States Court of Appeals, 7 .: ber 1, 1980, Butler was taken from the jail the crime of rape.
= ond Fourth Circuit. outa daak ieee and and transported to the Charleston County Butler’s conviction was upheld on direct
» offi Argued Jan. 7, 1988. MAN, Circuit Judges. Police Department. He was then informed appeal to the South Carolina Supreme
Mag- Resiind Mar @. 1008 _s for the first time that he was under suspi- Court in 1982. A petition for a writ of
C.Cir. ecidec may 9, K.K. HALL, Circuit Judge: cion for the murder of Pamela Lane. After certiorari was denied by the United States
} S.Ct. Horace Butler, a South Carolina inmate ; receiving the warnings regarding his con- Supreme Court in that same year. In 1983,
Defendant petitioned for habeas cor- currently awaiting execution for the crime stitutional protection against compulsory Butler unsuccessfully petitioned for state
pe a P
chal- pus relief alleging errors in state murder of murder, appeals an order of the district self-incrimination, as required by Miranda post-conviction relief. That denial of relief
least trial which resulted in his conviction and court dismissing his petition for a writ of v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 was also affirmed by the South Carolina
— death sentence. The United States District habeas corpus brought pursuant to 28 U.S. iH L.Ed.2d 694 (1966), Butler indicated that he Supreme Court, and the United States Su-
- that Court for the District of South Carolina, C. § 2254. We affirm. understood his rights and signed two sepa- preme Court again denied a petition for
— George Ross Anderson, Jr., J., dismissed + rate waiver forms. At no time during the certiorari. Butler thereby exhausted his
We ee Defendant appealed. The Court I : ensuing interrogation did Butler request available state remedies.
, of A —
ar that relieel rhe ao el tatead Butler was tried by a South Carolina eee oe Sap 5 De, Seer Ss Se ae
im of einitiated questioning of defen ; y Butler subsequently offered two expla- petition for federal habeas relief pursuant
ant abo
» sub about murder did not intrude on de state court in 1981 for the 1980 murder of nations of Lane’s death. In his first con- to 28 U.S.C. § 2254. The matter was re
azette fendant’s previously invoked right to coun- Pamela Lane. According to the facts de- cali , 7 Bose
fession, he claimed that a friend, Larry
ferred to the United States Magistrate for
BUTLER v. AIKEN 257
Cite as 846 F.2d 255 (4th Cir. 1988)
report and recommendation pursuant to 28
U.S.C. § 636(b1)(B). On May 9, 1987, the
magistrate issued his report finding no ba-
sis for granting relief to Butler. The mag-
istrate also recommended that a motion for
summary judgment presented on behalf of
the respondent state officials be granted
After conducting a lengthy de novo review
of all portions of the magistrate’s report to
which Butler had objected, the district
court also concluded that petitioner did not
merit habeas relief. Accordingly, the dis-
trict court granted the respondent's motion
for summary judgment and dismissed the
petition. This appeal followed
IT.
On appeal, petitioner contends that he is
entitled to habeas relief because (1) his
counsel in the proceedings below was con-
stitutionally ineffective; (2) errors in the
jury selection process violated his rights
under the sixth and fourteenth amend-
ments; (3) his two confessions were im-
properly admitted at trial; (4) the jury at
his trial was improperly instructed; (5) the
prosecution’s use of rape as an aggravat-
ing circumstance justifying the death pen-
alty was improper; and (6) the state of
South Carolina failed to conduct an ade-
quate proportionality review of his case to
determine whether the death penalty was
the appropriate punishment. All of these
contentions were exhaustively considered
and rejected by the district court. We find
the district court’s analysis sound and per-
Suasive in al] respects save its treatment of
the admissibility of petitioner’s confessions.
On that single issue, we conclude that some
further discussion is necessary. On all oth-
er claims advanced by petitioner, however,
we affirm the denial of habeas relief for
Wie reasons expressed by the district court.
Horace Butler v. James Aiken, Warden,
Central Correctional Institution, and
Travis Medlock, Attorney General, State
of South Carolina, C/A No. 86-1093-3
(D.S.C. June 9, 1987).
With regard to his confessions, Butler
contends that the statements elicited from
him by the Charleston Police on September
1, 1980, were obtained in violation of his
fifth amendment right to counsel. He con-
cedes that the warnings mandated by Mi-
randa v. Arizona, supra, were given be-
fore any interrogation concerning Lane’s
death occurred. He further concedes that
he signed waivers in which he agreed to
permit police questioning without »he pres-
ence of an attorney. Petitioner argues,
however, that under the “bright line” rule
established in Edwards v. Arizona, 451
U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378
(1981), the undisputed invocation of his
fift endment right to counsel when he
was first arrested barred the police from
initiating any further uncounseled interro-
gation. The waiver forms were, in petition-
er’s view, presumptively invalid
[1] Noting that Butler’s trial had pre
ceded the decision in Edwards and that the
Supreme Court in Solem v. Stumes, 465
U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579
(1984), had rejected retroactive application
of the rule articulated in Edwards, the
district court summarily rejected this por-
tion of Butler’s petition. Unfortunately,
the district court’s failure to address this
claim on the merits must be regarded as
error. Although Edwards does not have
retroactive effect, it does apply to cases
pending on direct appeal at the time it was
announced. Shea v. Louisiana, 470 US.
51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985).
Butler's appeal was in fact pending at that
time. We must, therefore, consider wheth-
er Butler’s interrogation did produce in-
criminating statements in violation of his
constitutional right to counsel. We are
convinced that it did not.
[2] An immediate factual distinction
may be drawn between Butler’s interroga-
tion and that of the criminal defendant in
Edwards. The defendant therein was ar-
rested on charges of first degree murder.
After some preliminary questioning, he ter-
minated the interrogation by requesting an
attorney. The next morning, police offi-
cers approached the defendant and without
. | ee ”
258 846 FEDERAL REPORTER, 2d SERIES
providing counsel, renewed questioning on
the very offense on which he had previous-
ly requested counsel. In requiring sup-
pression of the resulting confession, the
Supreme Court held that when an accused
has expressed a desire to deal with the
police only through counsel, he “is not sub-
ject to further interrogation by the authori-
ties until counsel has been made available
to him, unless the accused himself initiates
further communication, exchanges, or con-
versations with the police.” Edwards, 451
U.S. at 484-85, 101 S.Ct. at 1885.
In the instant case, the Charleston police
did not attempt to renew their inquiry into
the assault and battery charges on which
Butler had been arrested. Rather, the
questioning initiated on September 1, 1980,
dealt only with a hitherto uncharged of-
fense—the murder of Pamela Lane. Not
surprisingly, Butler argues on appeal that
this factual] distinction is irrelevant to the
constitutional inquiry. Relying upon a re
cent decision from the Seventh Circuit, But-
ler contends that the correct application of
Edwards requires that during continuous
custody, the police refrain from any fur-
ther questioning once an accused has in-
voked a right to counsel on any offense.
See United States ex rel Espinoza v. Fair-
man, 813 F.2d 117 (7th Cir.1987). We are
not persuaded, however, by the Seventh
Circuit’s dramatic extension of Edwards.
The fifth amendment right to counsel
exists throughout the time that an accused
is in police custody in contrast to the pro
tection provided by the sixth amendment
which arises only when formal proceedings
are begun—when the individual becomes
the accused.’ Escobedo v. Illinois, 378
U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977
(1964). The court in Espinoza reasoned
that since the right to counsel extended
continuously through a period of custody,
the invocation of that right, as protected by
Edwards, must be of similar duration. The
1. On September 1, 1980, Butler unquestionably
possessed a sixth amendment right to counsel
with regard to the offense on which he had been
arrested and denied bond. No formal charges
had been filed against him in connection with
court further reasoned that requiring a
crime-by-<rime invocation of the fifth
amendment right would be inconsistent
with the decision in Colorado v. Spring,
479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954
(1987) (waiver of fifth amendment right at
the beginning of interrogation remains val-
id even if police questioning moves without
warning from crime on which defendant
was arrested to an entirely different of-
fense). Although superficially appealing,
we are convinced that the decision of the
Seventh Circuit pursues a false symmetry
while cutting the decision in Edwards away
from its conceptual base.
As the Supreme Court has observed, the
“prophylactic rule” adopted in Edwards
“has only a tangential relation to truthfind-
ing.” Solem, 465 U.S. at 642, 104 S.Ct. at
1341. It was articulated as a reflection of
the Cuurt’s belief that additional procedur-
al safeguards were needed to protect an
accused’s preexisting right to request coun-
se] during custodial interrogation. Jd at
645, 104 S.Ct. at 1342. Such “safeguards”
by their inherent nature are a judicial re
sponse to specific and identifiable condi-
tions that undermine the perceived integri-
ty of the legal system. In Miranda, for
example, the Court sought to insure that
statements made by an accused while in
the unavoidably coercive atmosphere of
custodial interrogation could reasonably be
viewed as truly voluntary. In Edwards,
the Court’s concern lay with police conduct
that might badger an accused into aban-
doning a previously invoked right.
We fail to see how the actions of the
Charleston police could fall within the in-
tent of the Court in Edwards. There is no
suggestion that Butler’s arrest on the as-
sault charges was a sham intended to make
him available for questioning upon a more
serious offense. Neither was there “rein
terrogation” on the same offense, £d-
wards, 451 U.S. at 485, 101 S.Ct at 1885,
Lane's death, however, and thus no sixth
amendment right had arisen in that area. For
that reason, it is essentially irrelevant whether
Butler's counsel in fact instructed police not to
question him further.
APPENDIX C
U.S. Court of Appeals
Fourth Court
Horace Butler
Petitioner - Appellant
versus
James Aiken, Warden, Central
Correctional Institute, Travis
Medlock, Attorney General, State
of South Carolina
Respondents - Appellees
ORDER
Before the Court for reconsideration is Horace Butler's
petition for rehearing with regard to his appeal of the distric:
court's order denying his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Butler, a South Carolina inmate,
was convicted in state court in 1981 for the 1980 murder of
Pamela Lane. After exhausting state remedies, Butler petitionec
for federal habeas relief asserting a broad range of constitu-
tional objections to the state criminal proceedings. Finding no
merit in any of his claims, the district court denied relief and
we affirmed. Butler v. Aiken, No. 87-4004 (4th Cir. May 6,
1988). A petition for rehearing and suggestion of rehearing en
banc was subsequently denied on June 15, 1988.
In our opinion, we rejected the bulk of Butler's con-
tentions for the reasons soundly expressed below by the district
court. We addressed, in detail, only Butler's claim that his
confession resulting from interrogation on murder charges follow-
ing his arrest and appearance with counsel on an unrelated of-
fense violated the “bright line” rule against reinterrogation
established in Edwards v. Arizona, 451 U.S. 477 (1981). Our
conclusion that Edwards does not bar such interrogation if
properly preceded by appropriate warning and waiver in accordance
with Miranda v. Arizona, 384 U.S. 486, was cast into immediate
and serious doubt by the Supreme Court's decision in Arizona v.
Roberson, 56 U.S.L.W. 4590 (U.S. June 15, 1988). The Roberson
Court expressly held that the Edwards rule does bar police
initiated interrogation following a suspect's request for counsel
in the context of a separate investigation. 56 U.S.L.W. 4593.
J
light of Roberson, we determined that Butler's
=
-
petition for rehearing should be reconsidered. Accordingly, we
directed petitioner and respondents to file supplemental briefs
on this issue. We have now received and examined that supplemen-
tal briefing. The petition for rehearing is, therefore, ripe for
disposition.
As an initial matter, we reject respondents' effort to
distinguish Roberson factually. We assume for purposes of deci-
sion that the appearance of counsel with Butler at a bonc hearing
on the assault charge for which he was first arrested conclusive-
ly demonstrated invocation of Butler's fifth amendment rights.
The subsequent interrogation concerning the Lane murder, occur~
ring during continuous custody, was contrary to the Edwards rule
as modified in Roberson. If this case were before us on direct
appeal, we would in all likelihood be compelled to reverse the
conviction and remand for a new trial. It does not follow,
however, that Butler is entitled to habeas relief based upon a
rule of law that was not in effect at the time of his arrest and
trial.
The retroactive effect of decisions such as Roberson in
collateral proceedings is determined in accordance with three
factors: (1) the purpose of the new rule of law; (2) the extent
of reliance by law enforcement authorities on the old stancarc;
and (3) the effect of retroactive application upon the acminis-
tration of justice. Allen v. Hardy, U.S. , 106 §.Ct.
2878, 2860 (1986). Although all are relevant, it is the first
new judicial formulation “enhances the accuracy of criminal
trials" and "goes to the heart of the truth finding function,
Solem v. Stumes, 465 U.S. 638, 643-45 (1984), that retroactivity
is most appropriate.
Applying this test to the instant case, we are fully
satisfied that Butler may not claim any retroactive benefit from
Roberson. The Edwards-Roberson limitations on police interroga-
tion have only the most tangential relationship to truth finding.
They are, rather, a part of the prophylactic protection accorded
the fifth amendment right to counsel as a means of es-ablishing
"guidelines to the law enforcement profession." Roberson, 56
U.S.L.W. at 4592. The interrogation of appellant, while unques-
tionably contrary tw the present "guidelines, was conducted in
strict accordance with established law in 1980. We, therefore,
conclude that Butler may challenge his presumptively valid con-
viction only by demonstrating that there was an actual violation
of his constitutional rights in 1980. On that dispositive issue,
the record discloses no support for Butler's claim for habeas
relief.
It is undisputed that local authorities provided full
Miranda warnings before questioning Butler on the Lane murder.
It is further undisputed that Butler twice evidenced his knowing
consent to interrogation without the presence of counsel by
executing signed waivers. Every court that has considered this
matter has concluded that the waiver of rights was uncoerced and
utterly voluntary. There is, therefore, no reason to find a
technical violation based upon newly announced law when the
recorad reveals that appellant freely waived any fifth amendment
protections in 1980.
For the foregoing reasons, we conclude that our initial
affirmance of the district court's decision in this matter was
appropriate in substance.
In a requested poll of the Court on the suggestion for
rehearing en banc, Chief Judge Winter, Judge Phillips, Judge
Murnaghan, Judge Sprouse, anc Judge Ervin voted to rehear the
case en banc; and Judce Russell, Judge Widener, Judge Hall, Judge
Chapman, Judge Wilkinson, and Judge Wilkins voted against
rehearing en banc.
As the panel has considered the petition for rehearing
and is of the opinion that it should be denied, and as a majority
of the active circuit judges voted to deny rehearing en banc, it
is ADJUDGED and ORDERED that the petition for rehearing and
suggestion for rehearing en banc are denied. :
ENTERED with the concurrences of Judge Russell anc
Judge Chapman.
/s/ K. K. Hall
K. K. Hall
U. S. Circuit Judge
WINTER, Chief Judge, dissenting:
I respectfully dissent from the denial of rehearing in banc
because I believe that Butler's conviction was obtained in
violation of applicable constitutional law. A life is at stake
in this case. I have no doubt, therefore, that the validity of
Butler's conviction presents a question of "exceptional
importance." F. R. App. P. 35(a).
I.
As the majority correctly states, Butler requested counsel
when questioned about the offense for which the authorities were
holding him. Shortly thereafter, and in the absence of that
counsel, Butler was interrogated about an unrelated offense. The
Government obtained from him self-incriminating statements about
the unrelated offense. There is no evidence that Butler
initiateé the interrogation that resulted in his self-
incriminating statements. He was convicted by the use of those
statements.
The majority expresses the view that if Butler's case were
before it on direct appeal, it would "in all likelihood” be
compelled to reverse the conviction and remand for a new trial.
But, the majority maintains, because Butler's case is before it
on denial of a petition for habeas corpus, he is not entitled to
relief, as the rule of law on which he relies to bar the use of
his uncounselled confession was not in effect at the time of his
arrest and trial. Specifically, the majority's view is that an
interrogation such as Butler's did not violate Edwards v.
-6-
Arizona, 451 U.S. 477 (1981), until Edwards was “modified” in
Arizona v. Roberson, 486 U.S. (June 15, 1988). Because
Roberson was not decided until after Butler's conviction became
final, Butler is entitled to invoke Roberson, in the view of the
majority, only if Roberson is held to be retroactive. The
majority concludes that Roberson does not meet the test for
retroactive application.
In making Butler's entitlement to relief depend upon the
retroactivity of Roberson, the majority, in my view, incorrectly
construes both Edwards and Roberson.
Il.
Imprimis, I think that Butler's confession was
constitutionally inadmissible under Edwards standing alone.
Edwards stated unconditionally that a suspect who has "expressed
his desire to deal with police only through counsel, is net
subject to further interrogation by the authorities until counsel
has been made available to him, unless the accusec himself
initiates further communication.” 451 U.S. at 484-85. It is
true that, in Edwards, the subject about which the accused was
wrongly interrogated wa: the crime for which the authorities were
holding him. But there is not the slightest suggestion in the
Court's opinion that its holding was limited by the subject of
the interrogation. Indeed, the Court in Edwards expressly
reconfirmed its previous characterization of the rule in Miranda
v. Arizona, 384 U.S. 436 (1966), as a command that, upon an
accused's request for counsel, “all interrogation cease."
Edwards, 451 U.S. at 485 (quoting Fare v. Michael C., 442 U.S.
707, 719 (1979) (emphasis added)).
-
-j-
Edwards was decided before Butler's trial. And even when
decided, Edwards did not purport to create new law. Edwards was
simply a reconfirmation of the guideline articulated in Miranda
that if a person held for interrogation “states that he wants an
attorney, the interrogation must cease until an attorney is
present.” Miranda, 384 U.S. at 474. Nothing in Miranda
indicated that application of this rule was to vary with the
subject of the interrogation.
In Edwards, the Court reviewed Miranda and subsequent cases
recapitulating "Miranda's ‘rigid rule that an accused's request
for an attorney is per se an invocation of his Fifth Amendment
rights, requiring that all interrogation cease.'" Edwards, 451
U.S. at %85 (quoting Fare, 442 U.S. at 719 (emphasis added)).
Upon so doing, the Court concluded:
We reconfirm these views and, to lend them substance,
emphasize that it is inconsistent with Miranda and its
for the authorities, at their instance, °
rocate an accused in custody if he has clearly
asserted his right to counsel.
ct
Id. Thus, the Edwards Court did not regard its holding as other
than a "reconfirmation” of Miranda.
Roberson did not alter these rules of law. It simply
rejected Arizona's attempt to change the rules. In the very
opening paragraph of the Court's opinion, Justice Stevens,
writing for the majority, described the case as one in which
"Arizona asks us to craft an exception [to the Edwards rule] for
cases in which the police want to interrogate a suspect about an
offense that is unrelated to the subject of their initial
interrogation.* 486 U.S. at . This the Court declined to do.
Instead, it expressed agreement with an earlier Arizona decision
holding that Edwards was equally applicable whether. the
interrogation was about either the offense giving rise to the
arrest or an unrelated offense. The opinion then documented how
the Court had never departed from its holding in Miranda, as
reconfirmed in Edwards, and set forth the reasons why it would
not do so in the case before it.
In sum, Roberson says that the law is and has been, since
Miranda, that a suspect who has expressed his desire to deal with
the police only through counsel is not subject to further
interrogation about either the crime he is suspected of having
Committed or any other crime until counsel has been made
available, unless the suspect initiates further communication
with the police.” There is thus no retroactivity issue presented
in the instant case. Butler merely seeks to invoke the law in
effect when he was tried and convicted. I think that he has the
right to do so, and that he is entitled to habeas relief.
Judges Phillips, Murnaghan, Sprouse and Ervin authorize me
to say that they join in this dissent.
My reading is reinforced by what Justice Kennedy, who was
joined by the Chief Justice, wrote in dissent in Roberson. He
rejected the majority's characterization of the case as one in
which the Court was asked to "craft an exception” to Edwards. He
asserted instead that Roberson was the first case in which the
Court was "asked to apply Edwards to separate and independent
investigations.” 486 U.S. at __. While the majority in the
instant case obviously prefers this characterization of Roberson,
tT remind the majority that, as an inferior appellate court, we
are bound to follow the Supreme Court majority, whether we agree
or disagree.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.