Reply Brief — Butler v. McKellar

- Supreme Court. U.S.

FILED

APR 19 1989

JOSEPH F SPAN OL, UR.

CLERK

ORIGINAL

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988 Hr,

a \

2677 ]

No. 88-—66e4

HORACE BUTLER,

Petitioner,

Vv.

JAMES AIKEN, WARDEN, AND

THE ATTORNEY GENERAL OF

SOUTH CAROLINA, T. TRAVIS

MEDLOCK,

Respondent.

PETITIONER’S REPLY BRIEF TO RESPONDENT'S

BRIEF IN OPPOSITION TO THE PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

JOHN H. BLUME

FRANKLIN W. DRAPER

Attorney at Law

S.C. Death Penalty

Resource Center

P.O. Box 11311

Columbia, SC 29211

(803) 765-0650

Attorneys for Petitioner

\0'

TABLE OF CONTENTS.

TABLE OF AUTHORITIES

ARGUMENT IN REPLY.

1. There is no principled basis to distinguish

this case from Edwards v. Arizona or

Arizona v. Roberson .......+-.:

2. Arizona vy. Roberson is not new law .

CONCLUSION .

-ii

Cases

Arizona v. Roberson, ___—-U.S. __, - 108 S.Ct. 2903 (1988).

Boles v. Foltz, 816 F.2d 1132 (6th Cir. 1987)

Brewer v. Williams, 430 U.S. 387 (1977)

Butler v. Aiken, 846 F.2d 255 (4th Cir.), modified

on panel rehearing (Dec. 12, 1988) eee we

Connecticut v. Barrett, 479 U.S. 523 (1987)

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

Griffith v. Kentucky, 479 U.S. 314 (1987)

Maine v. Moulton, 474 U.S. 159 (1985)

Michigan v. Jackson, 475 U.S. 625 (1986).

Michigan v. Mosely, 423 U.S. 96 (1976).

Shea v. Louisiana, 470 U.S. 51 (1985)

Smith v. Illinois, 469 U.S. 91 (1984)

Teague v. Lane, __—s U.S. _s,:~«109 S.Ct. 1060 (1989)

Yates v. Aiken, 484 U.S. __, 108 S.Ct. 534 (1988).

o #4 <

Page

passim

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3

3, 4

- passim

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

No. 88-6674

HORACE BUTLER,

Petitioner,

v.

JAMES AIKEN, WARDEN, AND

THE ATTORNEY GENERAL OF

SOUTH CAROLINA T. TRAVIS

MEDLOCK,

Respondent .

PETITIONER’S REPLY BRIEF

ARGUMENT IN REPLY

Respondent asserts in its brief in opposition to the

petition for writ of certiorari both that the facts of

petitioner’s case are distinguishable from those in Arizona v.

Roberson, __U.S.__, 108 S.Ct. 2903 (1988), and that Arizona v.

Roberson is new law and should not be applied retroactively to

petitioner’s case. Because respondent’s assertions are

contradicted both by the facts of this case and by the

established precedent of this Court, certiorari should be granted

and the decision of the United States Court of Appeals for the

Fourth Circuit should be reversed.

1. There is no principled basis to distinguish this

case from Edwards v. Arizona or Arizona v. Roberson.

Respondent attempts in its brief in opposition to

distinguish petitioner’s case from Roberson, supra, and Edwards

vy. Arizona, 451 U.S. 477 (1981), on two basic grounds. First,

respondent asserts that because petitioner saw his attorney after

he invoked the right to counsel, the police were free to resume

interrogation. Brief in Opposition at 11. Second, respondent

asserts that because petitioner did not request counsel in the

context of a police interrogation, he did not invoke his Fifth

Amendment right to counsel. Brief in Opposition at 10. Before

discussing respondent’s arguments in more detail, it is important

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to note that the panel of the United States Court of Appeals for

the Fourth Circuit has already rejected respondent’s contentions

concluding, “[a]s an initial matter, we reject respondent’s

assertions to distinguish Roberson factually." v iken,

No. 87-4004 (4th Cir. Dec. 12, 1988) Order at 2, modifying on

panel rehearing Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988).'

The Court of Appeals decision in this regard is compelled by an

application of this Court’s prior decisions to the facts of

petitioner’s case.

Respondent’s second argument is wholly frivolous and will be

disposed of first. The panel on rehearing found 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, occvrring during continuous

custody, was contrary to the Edvards rule as modified

in Roberson.

Order at 2-3.° Nevertheless, respondent asserts that because

petitioner did not invoke the right to counsel during a custodial

interrogation, he did not invoke his Fifth Amendment right to

counsel. This contention is rebutted by an unbroken line of this

Court’s prior decisions which hold that courts should give a

‘The panel of the Court of Appeals, with five judges

dissenting from the denial of rehearing en banc, held that

although it would be compelled to reverse petitioner’s conviction

and sentence of death in light of Roberson if petitioner’s case

were before it on direct review, relief should be denied because

Robsxaon did not apply retroactively to petitioner’s case. Order

at 3-4.

"The facts surrounding this claim are as follows.

Petitioner was arrested on August 30, 1980, on a charge--later

dismissed--unrelated to this offense. The officers brought

petitioner to the county jail, where he remained until his bond

hearing late the following 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. After attorney Hill left the jail, at

approximately 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.

broad rather than a narrow interpretation to a defendant’s

request for counsel. See, e.g., Michigan v. Jackson, 475 U.S.

625, 633 (1986). As this Court stated in Jackson, “[w]jhen an

accused requests an attorney. . . he does not know which

constitutional right he is invoking; he therefore should not be

expected to articulate exactly why or for what purposes he is

seeking counsel." 475 U.S. at 633 nm. 7; gee also Connecticut v.

Barrett, 479 U.S. 523 (1987); Maine v. Moulton, 474 U.S. 159

(1985); Brewer v. Williams, 430 U.S. 387, 404 (1977) (defendant’s

actions in securing counsel revealed that he desired the presence

of counsel before any police interrogation took place); Boles v.

Foltz, 816 F.2d 1132 (6th Cir. 1987) (Defendant’s request for

counsel at arraignment is invocation of the right to have counsel

present at any subsequent police initiated interrogation).

Respondent, in essence, attempts to penalize petitioner for

invoking his right to counsel at the earliest possible

opportunity, i.e., immediately after his arrest on the unrelated

assault charge. Thus according to respondent’s perverse logic,

the only way in which petitioner could have successfully invoked

his Fifth Amendment right to counsel would have been--despite the

fact that he had previously retained counsel to represent him--to

submit to a police interrogation and then reinvoke the right to

counsel during the custodial questioning. This, of course, makes

no sense. Petitioner’s actions in securing attorney Hill to

represent him on the assault charge--and his appearance with Hill

at the bond hearing prior to the police initiated interrogation--

speak louder than words, and clearly demonstrate petitioner’s

assertion of his right to counsel .*

Second, respondent asserts that because Hill saw petitioner

between the invocation of the right to counsel and the

interrogation, that the mandate of Edwards and Roberson was

It is important to remember when reviewing this claim that

petitioner has a mental age between seven and eleven, and an I.Q.

in the high sixties or low seventies. When he completed his

education at the age of sixteen, he had only completed the fourth

grade.

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satisfied. Brief in Opposition at 11-12. Apparently respondent

believes that once an accused invokes the right to counsel, the

police are free to initiate interrogation after the accused has

spoken with his attorney. Again this contention is soundly

rejected by the clear language and logic of this Court’s prior

rulings. In Smith v. Illinois, 469 U.S. 91, 95 (1984) this Court

held that "if the accused invokes the right to counsel, courts

may admit his responses to further questioning only on finding

that he (a) initiated further discussions with the police, and

(b) knowingly and intelligently waived the right he had invoked."

See also Connecticut v. Barrett, 479 U.S. at 527-28 (once

defendant invokes right to counsel then police are forbidden from

engaging in further interrogation that is not initiated by the

defendant; the purpose of this rule is to “erect an auxiliary

barrier against police initiated interrogation"); Michigan v.

Jackson, 479 U.S. at 633 (defendant’s request for counsel at

arraignment carries over to any subsequent police initiated

interrogation).

Respondent’s interpretation of Edwards and Roberson would

undermine the “bright line" quality of the Edwards rule by

permitting the police to reinitiate interrogation of a defendant

following every meeting with his lawyer. A defendant would have

to consistently submit to police interrogation and reassert his

right to counsel after every attorney-client consultation. This

reasoning is totally at odds with the rationale underlying this

basic constitutional principle, which is that when an accused

invokes the right to counsel he is expressing his view that he is

not competent to deal with the authorities without legal advice.

Michigan v. Mosely, 423 U.S. 96, 110 n.2 (1976); see also

Michigan v. Jackson, 476 U.S. at 633-34, n.7. As this Court

stated in Mosely:

The reasons to keep the lines of communication between

the authorities and the accused open when the accused

has chosen to make his own decisions are not present

when he indicates instead that he wishes legal advice

with respect thereto.

a@e

Mosely, 423 U.S. at 110 (emphasis added). Thus there can be no

serious dispute that once an accused invokes the right to

counsel, the police cannot initiate interrogation of the

defendant himself. The police may contact his attorney and

request permission to talk with the accused, or they may talk

with the accused if he initiates the interrogation. However,

they may not force an accused who has previously invoked the

right to counsel to undergo questioning after every meeting with

his attorney. Respondent’s assertions to the contrary are

erroneous.

2. Arizona v. Roberson is not new law.

Respondent, relying on this Court’s recent decision in

Teague v. Lane, __U.S.__, - 109 S.Ct. 1060 (1989), asserts that

Roberson should not be applied retroactively to petitioner’s case

because Roberson is new law. Brief in Opposition at 12-16.°

Again this contention is totally without merit. In Teague, a

majority of this Court concluded that "a case announces a new

rule if the result was not dictated by precedent existing at the

time the defendant’s conviction became final." 109 S.Ct. at

1070. Even a cursory review of Arizona v. Roberson reveals that

it is not new law, but rather a straightforward application of

this Court’s prior decision in Edwards v. Arizona, supra. For

example, in Roberson the majority framed the question presented

as whether the Court should “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 209€. The

majority ultimately concluded that "[pJetitioner’s attempts at

distinguishing the factual setting here from that in Edwards are

unavailing," and affirmed the judgment of the Arizona Court

“In Teague, the plurality held that, in general, new rules

of law should not be applied retroactively to cases in federal

habeas corpus, and that retroactivity should be treated as a

threshold matter in collateral proceedings.

—

of Appeals. 108 S.Ct. at 2100-01.°

Under these circumstances, the question before this Court is

whether the bright-line rule of Edwards v. Arizona applies

retroactively to petitioner’s case. Edwards was decided while

petitioner’s case was pending on direct appeal to the South

Carolina Supreme Court. Thus the retroactivity question

presented in this case has already been resolved. In Shea v.

Louisiana, 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). This

principle was not disturbed by Teague. The Teague plurality and

concurring opinions agreed that an individual is entitled to the

benefit of any decision rendered--whether the decision creates a

new rule of law or not--before his or her conviction becomes

final on direct review. 109 S.Ct. at 1075. 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 petitioner’s case. The

Court of Appeals was incorrect in ruling otherwise, and its

decision cannot be permitted to stand. See Shea, supra.

‘Despite respondent’s contention to the contrary, the Fourth

Circuit panel on rehearing also did not believe that Roberson was

new law as it found that "[t]he subsequent interrogation

concerning the Lane murder, occurring during continuous custody,

was contrary to the Edwards rule as modified in Roberson." The

panel also discussed the "Edwards-Roberson limitations on police

interrogation". Order at 8. The panel on rehearing determined

that Edwards and Roberson did not apply to petitioner’s case

because neither case had been decided at the time of petitioner’s

arrest and trial. Order at 3. This conclusion is at odds with

this Court’s decisions in Griffith v. Kentucky, 479 U.S.314

(1987) and Teague v. Lane, supra. The five judges dissenting

from the denial of rehearing en banc also stated that this

Court’s holding in Roberson was nothing more than an application

of Edwards. Order at 8-9.

» @ «

CONCLUSION

Because the decision of the Court of Appeals conflicts both

with the decisions of this Court and the decisions of other

federal courts of appeal, certiorari should be granted in this

case and the decision of the Fourth Circuit should be reversed.

Respectfully submitted,

‘JOHN H. BLUME

FRANKLIN W. DRAPER

Attorney at Law

S.C. Death Penalty

Resource Center

P.O. Box 11311

Columbia, SC 29211

BY:

A RNEYS FOR PETITIONER

April 11, 1989

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