Respondents Brief — Butler v. McKellar

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

eet

lh Ae

. Lv; Z « we

vad 28 abn pie

SE Medes et 2.

$3 tg 5 oe of

nik ee

e *

eS Es

4 ? ¢ -

.) q ¥* 7+ te > P ee 3 =

Batre yror VAS "yoo a tes ;

. “ aes pad ae y a M s - “

ee se has eh a Peg?

my fe.

eos Foe ine

Eee ee Ae

BEST AVAILA

° - a

—— —=a--s SUC

RESPONDENTS' QUESTIONS PRESENTED

Whether his constitutional claim

underlying the proceedings are barred

from habeas review where the state court

determined the same claim was barred -—

from review based upon a procedural

default.

Il.

Whether the situation presented

where a suspect never requested the

assistance of counsel during any

interrogation, though counsel had met

with the suspect prior to the

interrogation, is factually

distinguishable from Arizona v.

Roberson, U.S. , 108 $.Ct. 2093

, and Edwards v. Arizona, 451 U.S.

477 (1981).

Ill.

Whether Arizona v. Roberson, supra,

is to be applied retroactively to cases

on federal habeas corpus review at the

time the decision was announced?

_——— Se eS Ol Fee! ee eee eee ’ ,

TABLE OF CONTENTS

xs, ar. LA - rigs »

Respondents' Questions Presented i

Table of Contents eye ii

Table of Authorities Sie @ « iii

Citation to Opinions Below... 2

Jurisdiction re 3

Constitutional Provision

Involved eeee 3

: Statement of the Case .... 4

Summary of Argument “or ae 23

Argument

I. — ae

II. oa 33

III. ea ae

Conclusion oe ee 66

iii

TABLE OF AUTHORITIES

CASES:

Allen v. Hardy, 478 U.S. 255,

106 S.Ct. 5B78) 92 L.Ed.2d 199

(1986)

Arizona v. Roberson, _U.S.

Ct. 8)

Blum v. Bacon, 457 U.S. 132

(19872)

Boles v. Foltz, 816 F.2d 1132

(6th Cir. 1987)

Butler v. Aiken, No. 87-4004

(4th Cir. June 15, 1988)

Butler v. Aiken, 846 F.2d 255

t YT.

Butler v. Aiken, C/A No.

a. . sie June 9, 1987)

Butler v. Aiken, 864 F.2d 24

t tT.

Butler v. State, 286 S.C. 441,

eB. (1985), cert.

denied, 474 U.S. 1093 (1986)

Caldwell v. Mississippi,

Cervi v. Kemp, 855 F.2d 702

(Iith Cir. 1588)

Commonwealth v. Santiago,

545 A.2d 316 (Pa. Super. 1988)

Page

Passim

CASES:

Connecticut v. Barrett, 479 U.S.

)

Duggar v. Adams, U.S. ,

108 S.ct. L211 (1989)

Dunkins v. Thigpen, 854 F.2d 394

(lith Cir. REED

Edwards v. Arizona, 451 U.S.

477 (1981)

Engle v. Isaac, 456 U.S. 107

)

Francis v. Franklin, 471 U.S.

307 (1985)

Sg eae v. Greer, 481 U.S.

Griffin v. Lynaugh, 823 F.2d 856

(5th Cir. 1587}

Harris v. Reed, U.S. ,

109 S.Ct. 1038 (1989)

Jackson v. Denno, 378 U.S. 368

(1964)

Saat v. Illinois, 406 U.S.

Lofton v. State, 471 S.E.2d

a. App. 1985)

McFadden v. Commonwealth,

~E. a. )

Page

Passim

CASES: Page

Mackey v. U.S., 401 U.S. 667

(1971) Passim

Maine v. Moulton, 474 U.S. 159

) 42,

Mason v. Procunier, 748 F.2d

t r. ) 30

“renee v. Jackson, 475 U.S. 625

Passim

Michigan v. Moseley, 423 U.S.

56 (L873) 62

Miranda v. Arizona, 384 U.S.

436 (1966) Passim

Moran v. Burbine, 475 U.S. 412

(1986) 42

Murray v. Carrier, 477 U.S.

478 (1586) Passim

Penry v. Lynaugh, U.S. __, No.

57-6177 (June 5G” 1989) 56

Pitchess v. Davis, 421 U.S.

>) 32

Rhode Island v. Innis, 446 U.S.

251 (1980) 40

Roper v. State, 375 S.E.2d 600 (Ga.

LD 47

Sandstrom v. Montana, 442 U.S.

9) 59

Shea v. Louisiana, 470 U.S. 5l

(1985) = 34

CASES:

Simmons v. State, 264 S.C. 417,

215 S.E.2d 883 (1975)

Solem v. Stumes, 465 U.S. 638

(1984)

State v. Butler, 277 S.C. 452,

290 S.E.2d & (1982)

State.v. Dampier, 314 N.C. 292,

333 S.E.2d 750 (1985)

State v. Fetterly, 766 P.2d 701

(Idaho 1988)

State v. Newton, 682 P.2d

State v. Norris, 768 P.2d 296

an.

Teague v. Lane, U.S. ,

109 S.Ct. 1060 (1989)

Truesdale v. Aiken, 480 U.S.

527 (1987)

U.S. ex rel. Espinoza v. Fairman,

7 t T.

U.S. v. Gouveia, 467 U.S. 180

(1984)

U.S. v. Halliday, 658 F.2d 1103

(6th Cir. L981)

U.S. v. Johnson, 457 U.S. 537,

(1982)

Page

Passim

44,

48°

Passim

vii

CASES: Page

U.S. v. Missler, 414 F.2d 1293

U.S. v. Roberts, 869 F.2d 70

(2nd Cir. 1989) 44

U.S. v. Skinner, 667 F.2d 1306

(Sth Cir. 1982) 48

Wainwright v. Sykes, 433 U.S.

) 26

Washington v. Yakima Indian Nation,

439 ve. 463 (1979) aes

Whitley v. Bair, 802 F.2d

1487 (4th Cir. 1986) 29

Wyrick:v. Fields, 459 U.S. 42

158) 47

Yates v. Aiken, 484 U.S. 211

(1988) 58

UNITED STATES CODE:

28 U.S.C. § 1257(3) 3

28 U.S.C. § 2254 17

UNITED STATES CONSTITUTION:

Fifth Amendment Passim

Sixth Amendment Passim

IN THE

SUPREME COURT OF THE UNITED STATES

No. 88-6677

October Term 1988

HORACE BUTLER,

Petitioner,

JAMES AIKEN, WARDEN, AND

THE ATTORNEY GENERAL OF

SOUTH CAROLINA, T. TRAVIS

MEDLOCK ,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF RESPONDENTS

The Respondents, above named,

respectfully submit this Brief of

Respondents on Writ of Certiorari to the

United States Court of Appeals for the

Fourth Circuit and would present the

following:

CITATION TO OPINIONS BELOW

The opinion of the 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 Joint

Appendix (J.A.) pages 91-124. 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 reproduced at J.A. pages 125-133.

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 on

reconsideration of the Order denying

rehedring, and denying rehearing en

banc, concluding that the initial

affirmance of the District Court

decision was appropriate in substance

und denying the Petition for Rehearing

and Suggestion for Rehearing En Banc, is

reported as Butler v. Aiken, 864 F.2d 24

(4th Cir. 1988), and is reproduced at

J.A. pages 134-141.

JURISDICTION

The second 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 apparently

invoked pursuant to 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Fifth

Amendment to the United States

Constitution, which provides in

pertinent part:

. 2 OD we

—

No person ... shall be compelled in

any criminal case to be a witness

against himself, nor be deprived

of life, liberty, or property,

without due process of law ....

STATEMENT OF THE CASE

This matter comes before this Court

on federal habeas corpus proceedings

arising from a 1981 murder conviction in

South Carolina that resulted in a

sentence of death on the Petitioner,

Horace Butler. The trial involved the

July 17, 1980, murder of Pamela Lane in

Charleston Coynty, South Carolina.

A. The Crime.

Miss Lane, a clerk at a convenience

store, was last seen alive when she left

her place of employment at around 10:30

p-m., on July 17, 1980. She was riding

home alone for the first time on her new

moped she received that day. She never

arrived home.

Her sister reported her missing the

next day. A few hours later, her body

was discovered by fishermen near a

bridge. She had been shot once in the

chest by a small calibre pistol. The

following day a minister found her moped

in a pond near his church.

B. The Arrest and Interrogation.

On August 30, 1980, the Petitioner,

Horace Butler, was arrested on an

unrelated charge of assault and battery

and placed in the County Jail. (J.A.

pp. 4-5, 44). He received his “Miranda”

warnings on that charge. (J.A. p. 5).

According to post conviction |

testimony, Butler's sister was called by

him and asked to call Mr. Hill or have

his father go see Mr. Hill (a local

attorney). (J.A. p. 66). Hill was

contacted amd agreed to be retained on

the assault charge and appeared with him

at the bond hearing held at the jail at

approximately 8:30-9:00 p.m., on August

31. (J.A. pp. 65-67). See also (J.A.

ll i et het ee ee Oe, ete Bed Pe ed eee A

p. 38). He was unable to make bond

and he was returned to the County Jail.

(J.A. pp. 56-57).

At approximately 12:15 a.m., on

September 1, 1980, Butler was taken from

the jail and transported to the

Charleston County Police Department. He

was then informed that he was being

charged with the murder of Pamela Lane.

After receiving the warnings regarding

his constitutional rights as required by

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

(J.A. pp. 6-19), he stated that he

understood his rights and then signed

two separate waivers during the

interrogation. (J.A. pp. 9-10, 15-16).

Sergeant Eugene Frazier meticulously

went over the Miranda warnings with the

Petitioner. On the issue of whether he

understood that he could have a Lawyer

appointed, Butler initially stated:

"Yes sir, Mr. Frazier, but I don't need

oe ae ee

mo lawyer because I tell you I didn't do

no killing." (J.A. p. 7). Sergeant

Frazier then further advised him as

follows:

Further, you have a right to have a

lawyer here now. In other words,

'4£ you tell me, Mr. Frazier, yes,

I want a lawyer, after I told him

he had a right to have one present

while we interview him, I says, do

you want one now?' And he said,

"Mr. Frazier, I know about the

lawyer, but I don't need a lawyer

because I didn't did the actual

killing «....'

(J.A. p. 7). Butler then gave a verbal

statement. Butler then was verbally

given the Miranda warnings by Detective

Simpson and he signed a written warning

form which included the phrase "(3) that

I have the right to consult with a

lawyer of my choice before I answer any

question or give any statement and,

also, have him present while I am being

questioned; (4) that if I wish to talk

to a lawyer or have him present, but am

unable to afford or hire a lawyer, one

will be appointed for me free of charge;

(5) that if I do decide to answer any

question or give a statement without

having a lawyer present to represent me,

I have the absolute right during this

interview to stop answering any

questions and remain silent." (J.A. pp.

9-10). Butler then gave a statement

admitting knowledge of the murder, but

placing the principle blame on Larry

White. (J.A. pp. 10-12). This was

reduced to writing at 2:55 a.m.

After further discussion about

Larry White's statement, Butler then

began a third statement after he had

been advised of his Miranda warnings

again and signed a written waiver form

that again listed the warnings. (J.A.

pp- 15-16). In this statement, Butler

admitted that he had shot Pamela Lane.

(J.A. pp. 16-18). After a brief meeting

with Larry White, Butler took the police

to the crime scene. (J.A. pp. 22-23).

At no time during any interrogation for

the Lane murder (or the Kellman assault)

did Butler request the presence of any

attorney.

Butler offered two explanations of

Pamela Lane's death. In his first

confession, he claimed that Larry White

had killed Lane and sought his help in

disposing of the moped. When the police

questioned him further, he offered a

second confession in which he admitted

to killing Lane. According to this

statement, he saw Lane riding on her

moped and followed her. When he blinked

his lights at her, she pulled off the

road, hid the moped in the bushes, and

voluntarily accompanied him to a nearby

wooded area. Butler claimed that Lane

engaged in consensual sex with him and

said she would "cry rape" when she

realized she would get home late.

> tee S “ee Oe te a atl ee

Butler contended that he panicked, shot

Lane with a handgun in his possession,

and then dumped her body off a bridge.

(J.A. p. 17). He also claimed Larry

White helped him dispose of the moped

later. After he signed the second

confession at 5:45 a.m., he indicated 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 body. (J.A. pp.

20-23). He was returned to jail at

about 10:30 a.m., on September 1, 1980.

C. The Trial in January, 1981.

He was subsequently indicted and

brought to trial on murder and sentenced

to death. The confession was introduced

in the guilt phase after a suppression

hearing. During the suppression

hearing, as well as the state version

previously mentioned, the defense

presented Isiah Frazier who testified

that he was Butler's principal in

elementary school and that Butler was

sixteen years old when he left school in

the fourth grade. He described Butler

as having a less than average

intelligence level in the range of 85 to

95. (J.A. p. 43). [The Petitioner

presented testimony in the state post

conviction relief hearing that Butler

had an 1.Q. of 69. Joint Appendix in

Court of Appeals at 1207, 1222]. Butler

testified and denied that his counsel

had told him not to talk with the

police. (J.A. p. 45). He described the

interrogation in markedly different

terms than the state witness and claimed

Sergeant Frazier scared him and struck

him. (J.A. pp. 47-48). Sergeant

Shuster was also called who testified

that "Mr. Hill had made previous visits

to Horace Butler ...." (J.A. p. 55).

Officer John Simpson testified and did

not recall any conversation with counsel

after the bond hearing that Butler was

not to speak with anyone about the

assault charge. (J.A. pp. 56-57). He

denied seeing Butler getting struck by

any police officer or hearing verbal

threats against his family. (J.A. pp.

57-58). Particularly, the trial court

found that Butler was afforded his Fifth

Amendment rights required by Miranda and

that the statements were "voluntary,

they were made without coercion on the

part of the law enforcement officers,

without any threat, without any promise,

without any inducement to the defendant

. beyond any reasonable doubt." (J.A.

pp. 63-64).

D. The Appeal.

Butler's conviction and sentence

were upheld on direct appeal on February

22, 1982. State v. Butler, 277 S.C.

452, 290 S.E.2d 4 (1982). There was no

issue raised in the direct appeal

concerning whether he had properly

waived his right to counsel under the

Federal Constitution, even though

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

was decided on May 18, 1981, while the

appeal was pending. The only issue

raised concerning the confession was

based entirely on whether a state law

was violated by not providing copies of .

the statements. (J.A. pp. 70, 72). A

Petition for Certiorari was denied on

October 12, 1982.

E. The State Post Conviction

Relief Proceedings.

In 1983, he unsuccessfully pursued

state post conviction relief. (J.A. pp.

68-90). In the state post conviction

relief proceeding, the state hearing

judge concluded that counsel had

performed competently in his preparation

of the hearing to suppress the

confessions. (J.A. pp. 84-85).

Concerning the admissibility of the

confession itself, the state court held

that it was procedurally barred under

Simmons v. State, 264 S.C. 417, 215

S.E.2d 883 (1975), because the court in

post conviction relief lacked

jurisdiction because it was not a

substitute for a direct appeal. (J.A.

p. 89).

The Petitioner then filed a

Petition for Certiorari from the denial

of state post conviction relief to the

Supreme Court of South Carolina raising

four separate issues, pursuant to Rule

50(9) of Rules of the Supreme Court of

South Carolina. He did not raise in the

appeal any issue concerning any

potential violation of either the Fifth

or Sixth Amendment surrounding the

admissibility of the confession nor

challenge the hearing court's conclusion

that the issue was procedurally barred

as a matter of state law. Certiorari

was then granted on the sole issue of

ineffective assistance of sentencing

counsel. State court certiorari was not

granted on the remaining three issues

concerning the competency of counsel at

the guilt phase, the statutory

qualifications of counsel, and adequacy

of the jury instruction in the penalty

phase on the definition of rape. The

Supreme Court of South Carolina

concluded that the Petitioner received

the effective a. sistance of counsel in

the sentencing phase and affirmed the

judgment of the hearing court. Butler

v. State, 286 S.C. 441, 334 S.E.2d 813

(1985), cert. denied, 474 U.S. 1093

(1986).

This Court held in Harris v. Reed,

U.S.__, 109 S.Ct. 1038, 1043 (1989),

that "an adequate and independent

finding of procedural default will bar

federal review of the federal claim,

unless the petitioner can show "cause"

for the default and "prejudice"

attributable thereto. The state hearing

judge, the only state court rendering a

judgment on the issue of the confession

clearly stated its judgment rested on a

state procedural bar. (J.A. p. 89).

The Petitioner has not sought to show

"cause" for the failure to raise in the

direct appeal which was still pending

when Edwards v. Arizona, 451 U.S. 477

(1981), was decided. Here, there was no

ambiguity as in Harris v. Reed, supra.

The plain statement of the state court

was the applicability of a state

procedural bar. Federal review of this

issue should be barred unless the Murray

v. Carrier, 477 U.S. 478 (1986), showing

~of "cause" and "prejudice" is met.

Remand to the lower court is

appropriate. Petitioner is presently

represented on the Brief by direct

appeal counsel, David I. Bruck, who

chose not to pursue the issue on direct

appeal and state post conviction

counsel, Dale T. Cobb, Jr., who chose to

abandon the issue in state court after

the hearing judge ruled the matter

procedurally barred.

F. The Federal Habeas Corpus

Proceedings.

On May 2, 1986, Butler filed a

Petition for a Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254. This

issue, again, was not raised in original

pleadings. Although not amending his

original Petition, he included in his

Memorandum in Opposition to the State's

Motion for Summary Judgment a copy of

his Memorandum in Support of his State

Post Conviction Relief proceeding that

¢ .

raised the Fifth and Sixth Amendment

issue that the State court held to be

procedurally barred. (Joint Appendix to

the Fourth Circuit, pp. 1527, 1532).

The Federal Magistrate in his Report and

Recommendation concluded that his Sixth—

Amendment right to counsel had not

attached on the murder charge and his

Fifth Amendment had been validly waived.

Particularly, the Magistrate found "no

evidence exists that Petitioner ever

attempted to exercise his rights."

(Joint Appendix to the Fourth Circuit,

pp. 1579-1586).

The United States District Court

similarly held that the Fifth Amendment

right to counsel was validly waived and

that his Sixth Amendment right to

counsel had not yet attached to the

murder charge since no formal

proceedings in the prosecution of that

“charge had been instituted. (J.A. p.

123). The District Court granted the

Respondents' Motion for Summary Judgment

on all other grounds. (J.A. pp.

91-124).

The panel decision of the United

States Court of Appeals for the Fourth

Circuit on May 6, 1988, found that the

District Court erred in ruling that the

mandate in Edwards v. Arizona, supra,

did not apply to the Petitioner's case

and concluded that it should be applied

to the Petitioner's case. Butler v.

Aiken, 846 F.2d 255, 257 (4th Cir.

1988). (J.A. p. 129). The panel held

that the confessions were not obtained

in violation of the Fifth Amendment.

Relating to the particular facts of this

case, it stated:

We fail to see how the actions of

the Charleston police could fall

within the intent of the Court in

Edwards .... We see no reason for

a different result simply because

the custody was continuous.

Properly initiated interrogation on

entirely 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 occurred in

this case, the accused then freely

waives any constitutional right to

counsel and provides voluntary

statements of an incriminating

nature, there is no justification

for undermining the search for

truth by suppressing those

statements.

Id. at 258-259. (J.A. pp. 131-132).

The Petition for Rehearing and

Suggestion for Rehearing En Banc was

denied on June 15, 1988. The same day

this Court announced its decision in

Arizona v. Roberson, U.S. __, 108 S.Ct.

2093 (1988). The Petitioner made a

Motion for Reconsideration. On December

2, 1988, the panel considerec the

Petition for Rehearing and was of the

opinion that it should be denied.

Further a majority of the active Court

voted to deny rehearing en banc, and it

was adjudged and ordered that the

Petition for Rehearing and Suggestion

for Rehearing En Banc be denied. (J.A.

pp. 134-137). In its December 2, 1988,

Order, Judge Hall stated:

As an initial matter, we reject

respondents' effort to distinguish

Roberson factually. We assume for

purposes of decision that the

appearance of counsel with Butler

at a bond hearing on the assault

charge for which he was arrested

conclusively demonstrated

invocation of his 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.

(J.A. p. 135). The Order stated that

Butler may not claim any retroactive

benefit from Roberson. Relying upon

Allen v. Hardy, 478 U.S. 255, 106 S.Ct.

2878, 2880, 92 L.Ed.2d 199 (1986), the

Order stated that Petitioner could not

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 1980 |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.

864 F.2d at 25. (J.A. p. 136). This

Court granted certiorari on May l, 1989.

(J.A. p. 142).

SUMMARY OF ARGUMENT

The Petitioner's underlying claims

under the Fifth and Sixth Amendments

should be considered barred because of

the state procedural defaults that

occurred in the state post conviction

proceedings. The state court made a

fair statement that it relied on the

state procedural bar in dismissing the

claim which was not appealed.

Under the facts in this case, the

rule of Edwards v. Arizona is

inapplicable where the Fifth Amendment

right to counsel was not invoked and the

Sixth Amendment had not attached to the

murder charge. Also, the Petitioner

never invoked his right to remain silent

or request counsel's presence during any

interrogation. Third, counsel was "made

available" during the bond hearing in

satisfaction of Edwards concerns.

Finally, we submit that Arizona v.

Roberson should not be applied to cases

final at the time of its decision. It

developed new law because it was not

dictated from the precedent of Edwards

v. Arizona, Maine v. Moulton, and

Michigan v. Moseley. It created further

a new rule of criminal procedure for law

enforcement when dealing with suspects

_in separate unrelated investigations.

Since it does not meet the critical

exceptions, the decision should not be

given retroactive effect.

ARGUMENT

THE PETITIONER'S FIFTH AND SIXTH

AMENDMENT CLAIMS UNDERLYING THE

CERTIORARI PROCEEDINGS SHOULD BE

CONSIDERED BARRED FROM FEDERAL

HABEAS REVIEW BECAUSE OF THE STATE

PROCEDURAL DEFAULT FOUND IN THE

STATE POST CONVICTION RELIEF

PROCEEDINGS.

In the questions presently pending

before this Court, the Petitioner raises

the question of whether Arizona v.

Roberson, _U.S.__, 108 S.Ct. 2093

(1988), should be retroactively applied

to a murder conviction tried in South

Carolina in January, 1981. As a

threshold matter, the Respondents’

review of the record of the presentation

of the underlying Fifth and Sixth

Amendment claims reveal that even

assuming that applicability of Roberson

to a conviction presented in the time

frame, federal habeas corpus relief

should be barred on the basis of a state

procedural default.

In Harris v. Reed, U.S. __, 109

S.Ct. 1038 (1989), this Court held that

while the mere fact that a federal

habeas corpus claimant failed to abide

by a state procedural rule does not

prevent the Supreme Court from reaching

the federal claim, where the state court

actually relied upon a procedural bar as

a basis for the disposition of the case

federal habeas review should be barred.

In Wainwright v. Sykes, 433 U.S. 72

(1977), the Court held that an adequate

and independent finding of procedural

default will bar federal habeas review

of the federal claim, unless the habeas

petitioner can show "cause" for the

default and "prejudice attributable

thereto," Murray v. Carrier, 477 U.S.

478, 485 (1986), or demonstrate that

failure to consider the federal claim

will result in a "fundamental

miscarriage of justice." Id. at 495.

Engle v. Isaac, 456 U.S. 107, 135

(1982).

This Court has recently held that a

habeas petitioner's state procedural

default precludes federal habeas review,

like direct review, only if the last

state court rendering a judgment in the

case rests its judgment on the

pte => |

procedural default. Harris v. Reed,

supra. See Duggar v. Adams, _U.S._,

109 S.Ct. 1211 (1989); Caldwell v.

Mississippi, 472 U.S. 320 (1985). This

Court recently focused on the scope

purpose of the writ of habeas corpus:

"(T]he Court never has defined the

scope of the writ simply by

reference to a perceived need to

assure that an individual accused

of crime is afforded a trial free

of constitutional error.’ Kuhlmann

v. Wilson, 477 U.S. 436, 447, 106

S.Ct. 2616, 2623, 91 L.Ed.2d 364

(1986) (plurality opinion).

Rather, we have recognized that

interests of comity and finality

must also-be considered in

determining the proper scope of

habeas review. Thus, if a

defendant fails to comply with

state procedural rules and is

barred from litigating a particular

constitutional claim in state court,

the claim can be considered on

federal habeas only if the

defendant shows cause of the

default and actual prejudice

resulting therefrom. age

Wainwright v. Sykes, 4 U.S. at

87-91, SF S.Ct. at 2506-2509. We

have declined to make the

application of the procedural

default rule dependent on the

magnitude of the constitutional

claim at issue, see Engle v. Isaac,

456 U.S. at 129, 102 S.Ct. at 1572,

or on the State's interest in the

enforcement of its procedural rule,

see eet v. Carrier, 477 U.S.

478, mat ’ -CCt. 2639,

2648-2650, 91 L.Ed.2d 397 (1986).

Teague v. Lane, U.S. _, 109 S.Ct.

1060, 1073-1074 (1989).

The strange procedural history

presented in the current case reveals

the matter presented before the Court

was only raised in the state post

conviction relief proceedings. When

presented with the issue, the state

hearing judge concluded:

In allegation VII, the Applicant

contends that his confession was

improperly introduced. This issue

has been substantially disposed of

in the ineffective assistance of

counsel claim. As presented in

this allegation, this Court lacks

jurisdiction based upon the Supreme

Court's mandate in Simmons v.

State, supra. [264 S.C. 417, 215

S.E.2d 3B5 (

1975)]}.

(J.A. p. 89). Im Simmons v. State,

supra, the Supreme Court of South

Carolina held that a post conviction

relief proceeding is not a substitute

for an appeal and particularly that

"errors in a petitioner's trial which

could have been reviewed on appeal may

not be asserted or reasserted in post

conviction proceedings. 264 S.C. at

423. The stated reliance on this case

as depriving the state hearing court of

jurisdiction is a "plain statement"

finding of a state procedural default

where the issue was not raised in the

direct appeal.

Furthermore, he chose not to appeal

to the State Supreme Court on the post

conviction court's conclusion on the

issue now being asserted before this

Court. Similarly, this failure to

appeal the state hearing court's

conclusion of a procedural bar as to

this issue should act as another bar to

federal habeas relief. Whitley v. Bair,

”

802 F.2d 1487 (4th Cir. 1986); Mason v.

Procunier, 748 F.2d 852 (4th Cir. 1984).

Here, the interests of comity would

be best served by applying the state

procedural bar. The petition for habeas

corpus relief sets forth the ground for

relief as follows:

O. Denial of Fifth, Sixth and

Fourteenth Amendments rights by

failure to the trial judge to rule

on the Petitioner's claims that the

statement taken from him were the

product of free and voluntary

waiver.

(Joint Appendix to the Fourth Circuit,

p- 1482). The State, in its Motion for

Summary Judgment, merely stated that,

based upon the record of the trial

judge's findings, "his allegation was

factually incorrect." (Joint Appendix

to the Fourth Circuit, p. 1523). A

Similar understanding of the allegation

in the Petition was found by the District

Court. (J.A. pp. 96, 114). The problem

presented herein is that the analysis of

the courts below, in obiter dicta, went

beyond the allegation in the Petition

that was actually before the Court.

It is irrelevant to the allegation

presented in the Petition as to whether

the State trial judge ruled on the

voluntariness of the confession [Jackson

v. Denno, 378 U.S. 368 (1964)] on the

retroactivity of Arizona v. Roberson,

supra. The State, in its Motion for

Summary Judgment, stated state remedies

had been exhausted to the claims raised

in the Petition, which did not include

the claims underlying the present

matter. Compare Granberry v. Greer, 481

U.S. 129 (1987).

Here, the Petitioner failed to rely

upon Edwards v. Arizona, 451 U.S. 477

(1981), in the direct appeal that was

decided after the Edwards decision.

Further, when the state post conviction

relief court found that there was a

procedural bar to the present claim

relying upon Simmons v. State, supra, he

chose to not raise the issue in his

appeal to the South Carolina Supreme

Court from the post conviction denial.

Further, the allegation is not even

raised in the Petition for the Writ of

Habeas Corpus filed on ney 2, 1986, upon

which the Motion for Summary Judgment

was made.

This assertion of procedural bar

has not been raised previously in these

proceedings mainly because the

allegation raised in the Petition varied

significantly and is not the "same

claim," Pitchess v. Davis, 421 U.S. 482

(1975), that is underlying the current

presentation of the Petitioner, even

though the Petition has never been

amended. This Court has previously

stated a prevailing party may "defend

its judgment on any ground properly

raised below whether or not that ground

was relied upon, rejected, or even

considered by the District Court or

Court of Appeal." Washington v. Yakina

Indian Nation, 439 U.S. 463, 476 n. 20

(1979). Accord Blum v. Bacon, 457 U.S.

132, 137 n. 5 (1982). We respectfully

submit that for the reasons initially

stated herein, the judgment of the Court

of Appeals should be affirmed or in the

alternative that certiorari should be

dismissed as being improvidently

granted.

Il.

EDWARDS v. ARIZONA, 451 U.S. 477

. LY AND LEGALLY

DISTINGUISHABLE FROM THE INSTANT

CASE WHERE BUTLER NEVER REQUESTED

COUNSEL'S ASSISTANCE DURING ANY

INTERROGATION AND HIS RETAINED

COUNSEL ON THE ASSAULT CHARGE MET

WITH HIM PRIOR TO ANY QUESTIONING

ON THE MURDER CASE.

The issue before this Court is not

whether the Edwards v. Arizona, supra,

decision would apply to a case tried

before the decision and appeal

subsequently concluded in the State

Supreme Court. The matter has been

unequivocally resolved in Shea v.

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

Similarly, the Court of Appeals

recognized that fact in the decision in

the case where it recognized that the

Edwards decision does apply to cases

pending on direct appeal at the time it

was announced. (J.A. p. 129). It will

be argued subsequently in the Brief that

the later decision of this Court in

Arizona v. Roberson, _U.S._, 108 S.Ct.

2093 (1988), does not have retroactive

application to cases pending on

collateral review.

An alternative ground exists in the

record that distinguished Edwards,

supra, and also Roberson, supra, from

Supta

the instant case. This Court has

recognized that a prevailing party may

defend its judgment on any ground

properly raised below. Washington v.

Yakima Indian Nation, supra. We would

submit for the reasons set forth herein

that the judgment below should be

affirmed.

The critical facts of the case more

fully set out in the Statement can be

summarized for pertinent purposes to

this Argument. Butler was arrested on

an unrelated assault charge and placed

in custody in the Charleston County

Jail. He was advised of his Miranda

rights during questioning on that

charge. He appeared at a bond hearing on

August 31, 1980, where he was assisted

by retained counsel o the assault

charge. He was returned to jail after

failing to make bond. That same night,

he was transported from the jail to the

police department where he was informed

’

by the police that he was to be charged

in the murder of Pamela Lane. The

officers went over the Miranda warnings

orally and the Petitioner twice

responded that he knew about the lawyer,

but did not need a lawyer because he did

not do the actual killing. (J.A. p. 7).

The Petitioner then signed a written

waiver of the same rights that he read

out loud. (J.A. pp. 9-10). A statement

was given admitting some involvement in

the case. After further interrogation,

another series of Miranda warnings were

given orally and in writing. (J.A. pp.

15-16). Butler then gave a written

statement admitting greater involvement

in the murder. (J.A. pp. 16-17). Butler

then voluntarily went with the officers

to the crime scene. (J.A. p. 20). As

the Court of Appeals found, at no time

during the interrogation did Butler

request the presence of an attorney.

———

In Edwards v. Arizona, supra, the

Court held under the Fifth Amendment

once an accused has invoked the right to

have counsel present during a custodial

interrogation, further interrogation

must cease until counsel has been made

available, unless the accused initiates

further conversation with the police.

451 U.S. 477, 484-485. Central to the

holding in Edwards was the fact that

after the accused asserted his right to

have counsel present during questioning,

the police resumed the interrogation

without giving Edwards access to an

attorney. Under such circumstances, the

Court concluded that additional -

safeguards were necessary before an

accused may validly waive the right to

counsel. Edwards, 451 U.S. at 484.

We submit that the Petitioner's

analysis of Edwards is inapplicable to

the present situation. First, he has

ieee

%."

overlooked the significant difference

between the Sixth Amendment right to

counsel and the Fifth Amendment right

against self-incrimination. Second,

Butler never invoked his right to remain

silent or have counsel present during

any questioning. Third, unlike Edwards,

counsel was "made available" during the

bond hearing.

A. The Relationship between the

Fifth and Sixth Amendments.

In the argument in the Court of

Appeals, the Petitioner relied heavily

upon the reasoning of the Seventh

Circuit in U.S. ex rel. Espinoza v.

Fairman, 813 F.2d 117 (7th Cir. 1987).

In Espinoza, the court, citing Michigan

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

that individuals who invoke their right

to counsel at an arraignment are deemed

to have invoked both their Fifth and

Sixth Amendment rights. Espinoza, 813

F.2d at 123. Respondents asserted below

that Petitioner's reliance on Jackson,

supra, is misplaced and would assert

that this Court has not adopted that

approach and should not do so.

In Michigan v. Jackscn, supra, the

Court held only that the Sixth Amendment

right to the assistance of counsel

guarantees that right at

post-arraignment interrogations, because

such interrogations represent "critical

stages" of adversary judicial

proceedings to which the Sixth Amendment

applies. Jackson, 475 U.S. at 629-630.

From this, the Court reasoned that a

defendant's invocation of his Sixth

Amendment right to counsel at

post-arraignment interrogations is as

mich protected as is the Fifth Amendment

right to counsel at a custodial

interrogation. Jackson, 475 U.S. at

632.

The court in Jackson merely

extended the rule of Edwards to Sixth

Amendment invocations of the right to

counsel; it did not hold that the

invocation of a Sixth Amendment right to

counsel at an arraignment also invokes a

defendant's Fifth Amendment rights.

Jackson, 475 at 636 n. 10. In Rhode

Island v. Innis, 446 U.S. 291 (1980),

the Court stated that the Fifth

Amendment right to counsel attaches only

to custodial interrogations.

Accordingly, a bond hearing likewise

does not implicate a defendant's Fifth

Amendment right as it involves no

compulsion of the accused to give

evidence having a testimonial

significance. See Kirby v. Illinois,

406 U.S. 682 (1972) (Fifth Amendment not

implicated in a lineup).

A bond hearing has not been held to

be a "critical" stage of the criminal

proceeding by this Court requiring the

defendant the right to be represented by

counsel nor is it an adversarial

judicial proceeding. U.S. v. Gouveia,

467 U.S. 180 (1984).

Because no Fifth or Sixth Amendment

right to counsel attached at the bond

hearing, Butler's representation by

retained counsel at that hearing on the

assault charge must be viewed as only

invoking a Sixth Amendment right to

counsel on the assault charge. The

significance of the distinction between

the invocation of the Sixth Amendment as

opposed to the Fifth Amendment is that

the scope of the rights invoked differ.

The Sixth Amendment right to counsel is

limited to the specific crimes for which

the state has begun prosecution (here,

the assault charge); whereas Fifth

Amendment rights, once invoked, extend

to any subsequent interrogation.

Edwards, supra; Roberson, supra.

Accord, Moran v. Burbine, 475 U.S. 412,

431 (1986); Maine v. Moulton, 474 U.S.

159, 180 vu. 16 (1985). Here, the Sixth

Amendment rights had not attached to the

murder charge for no proceedings of any

nature occurred concerning that charge

at the bond hearing or questioning on

that charge. Consequently, Butler's

retention of counsel under the Sixth

Amendment for the assault charge did not

extend to the murder charge.

Accordingly, Butler's multiple waivers

of his Miranda rights as to the murder

should not be rendered invalid under the

Edwards rule, as no right to counsel

under the Fifth Amendment had been

previously invoked by the defendant to

these charges to bring Edwards into

play.

A. The Failure to Request Counsel

at Any Interrogation.

Secondly, even if Butler is deemed

to have invoked his Fifth Amendment

right to counsel, he did not invoke it

in the context of a custodial

interrogation; therefore, the rationale

of Edwards and also Roberson do not

exist. In Roberson, the Court was

concerned with the discomfort with the

pressures of custodial interrogation

continuing after counsel was requested

to assist in the interrogation.

Roberson, supra, 108 S.Ct. 2099. In

contrast, the assistance of retained

counsel without ever requesting such

assistance during any interrogation

before or after, tells us nothing about

the defendant's belief as to his ability

to deal with the pressures of custodial

interrogation. Even if deemed invoked

at the bond hearing, there would still

not be a justification for extending the

protection of that right to subsequent

police questioning of unrelated crimes.

See U.S. v. Roberts, 869 F.2d 70 (2nd

Cir. 1989); State v. Norris, 768 P.2d

296 (Kan. 1989).

Here, in light of the wholly

voluntary and non-coercive circumstances

surrounding the defendant's statements,

there is no constitutional objective to

be served by suppression. Accord

Connecticut v. Barrett, 479 U.S. 523

(1987). The purpose of Miranda, "to

insulate the exercise of Fifth Amendment

rights from the government compulsion,

subtle or otherwise" was not present.

Id. at 527. Presence of retained

counsel at a bond hearing does not raise

a presumption that the defendant is

unable to deal with custodial

interrogations. The Petitioner never

sought counsel's assistance during any

interrogation when advised of his right

to so request. The judgment below could

be affirmed for this reason.

é. Counsel was "made available"

to Butler.

In Edwards, supra, the court held

that a suspect who has “expressed his

desire to deal with the police only

through counsel is not subject to

further interrogation by the authorities

until counsel has been made available to

him, unless the accused himself

initiates further communication,

exchanges, or conversations with the

police. 451 U.S. 477, 484-485. Here,

after the bond hearing where retained

counsel on the assault charge was

present, and we submit met with counsel,

the Petitioner after successive Miranda

warnings orally waived the assistance of

any counsel and proceeded to give a

statement. Unlike Edwards, Roberson, or

—

Michigan v. Jackson, supra, in which

counsel was requested but not seen, the

Petitioner here had counsel with him

during the bond hearing. Simply put,

counsel was “made available." Edwards

emphasized the necessity of making

counsel “available” or of the defendant

having "access" to counsel, Edwards,

supra, 451 U.S. 484-487, rather than

holding that once the accused requests

counsel he may thereafter be questioned

only in the presence of counsel. See

U.S. v. Missler, 414 F.2d I293 (4th Cir.

1969) (after indictment on a different

charge, defendant's incriminating

statements made out of counsel's

presence did not preclude admission of

statement in prosecution for new crime

committed after the earlier indictment).

In U.S. v. Halliday, 658 F.2d 1103 (6th

Cir. 1981), the court held the Fifth

Amendment was not violated when counsel

was “made available” after a request for

counsel under Edwards. Also, the United

States Supreme Court in Wyrick v.

Fields, 459 U.S. 42 (1982) (per curiam),

the Court limited Edwards to the extent

that its language was interpreted to not

require the "presence" of counsel at an

interrogation after he had met with

counsel. Cf. Roper v. State, 375 S.E.2d

600 (Ga. 1989). Cervi v. Kemp, 855 F.2d

702 (llth Cir. 1988).

Similarly,in Boles v. Foltz, 816

F.2d 1132 (6th Cir. 1987), the Court

rejected a Fifth Amendment challenge

where a defendant advised the trial

court at an arraignment that he had a

lawyer and desired him to appear at 4

preliminary hearing on a larceny charge,

but never sought to have him present

during any interrogation on the other

charges. The Sixth Circuit relied upon

_ Connecticut v. Barratt, 479 U.S. 523

(1987). In Barratt, where a defendant

stated he was willing to give an oral

statement but would not give a written

statement unless his attorney was

present, it held he invoked his right to

counsel for purposes of the

interrogation. In Boles, however, the

Court found that he did not invoke his

right to have counsel present during an

interrogation where his statement at the

arraignment was that he wished to have

his attorney present at the preliminary

hearing.

Further, the lower courts have held

where the accused had a “reasonable

opportunity" to consult with counsel,

such as a break in custody after the

request was made. Dunkins v. Thigpen,

854 F.2d 394, 397 (llth Cir. 1988); U.S.

v. Skinner, 667 F.2d 1306, 1309 (9th

Cir. 1982); State v. Norris, 768 P.2d

296 (Kan. 1989); State v. Fetterly, 766

P.2d 701 (Idaho 1988). In Fetterly, the

-state court held that counsel was

appointed and the defendant had benefit

of him while released on bail. The

court reasoned that when he was later

arrested for murder, he was familiar

with his rights and aware counsel could

be appointed on the new charge and "in

no way disabled or coerced into waiving

his rights." 766 P.2d at 704 n. 2.

In Griffin v. Lynaugh, 823 F.2d 856

(5th Cir. 1987), it was held that a

suspect's request to speak to a

particular attorney was not an

invocation of a general right to counsel

where the polite honored the request and

resumed the interrogation only after he

had spoken with the attorney. It is

important in Griffin that the police

sought to assure that his request had

been fully honored by inquiring whether

he wished to talk to any other attorney.

He stated he did not wish to speak to

another attorney at that time and

questioning resumed and Miranda rights

waived. In that situation as here:

there is no constitutional objective

that could be served by suppression.

Accord Connecticut v. Barratt, supra.

Similarly, in Commonwealth v.

Santiago, 545 A.2d 316 (Pa. Super.

1988), the state court found Edwards not

to be controlling in a situation where

the accused exercised his rights and

counsel was immediately made available

to him. Importantly, however, the

police officers did not seek to

interview the defendant until after he

had consulted with an attorney. 545

A.2d at 320.

In each of the above cases, the

concerns of the Fifth Amendment right to

have counsel's assistance during a

custodial interrogation were satisfied

when counsel was made available or

circumstances occurred such as a break

in custody with appointment of counsel

that created a “reasonable opportunity”

to consult with counsel. As previously

stated in the earlier arguments, the

concerns of coercion or discomfort that

Edwards suggests are not present under

these facts. Here, counsel met and

talked with Butler at the bond hearing.

When contacted about the new charge he

stated he did not want any lawyer on

numerous occasions and never asked to

see his retained counsel or to see

appointed counsel during the

interrogation. Simply put, the record

is clear that counsel was "made

available" for the purpose he desired,

the bond hearing on the unrelated

assault charge, and the Petitioner did

not desire to involve him during the

interrogation when given the

opportunity. Edwards was satisfied by

these facts.

In summary, Arizona v. Roberson

should not affect this case because

Horace Butler never invoked his Fifth

Amendment ‘ight by requesting counsel to

assist in any interrogation. Counsel

merely appeared with his client at an

unrelated bond hearing and consulted,

although the information exchanged

during the consultation has varied in

the various proceedings. Since no Sixth

Amendment right had attached on the

murder charges and the Petitioner never

sought to have counsel “made available"

after his consultation after the bond

hearing, we submit that the mandate of

Roberson and Edwards has not been

violated. Therefore, we submit that the

Writ of Habeas Corpus was properly

dismissed and denied because the

Petitioner's constitutional rights were

TTT

aaa

not infringed and certiorari should be

IIl.

ASSUMING THAT ROBERSON FACTUALLY

APPLIES TO THE SITUATION, THE

FOURTH CIRCUIT CORRECTLY STATED IN

ITS ORDER, SUA SPONTE, THAT IT DOES

NOT HAVE RETROACTIVE APPLICATION.

In its Order of December 3, 1988,

denying the Petition for Rehearing and

Suggestion for Rehearing En Banc, Judge

Hall stated that "we are fully satisfied

that Butler may not claim any

retroactive benefit from Roberson." The

Order concluded that the interrogation

was conducted in strict accordance with

established law in 1980, and that there

was no support that there was an "actual

violation of his constitutional rights

in 1980." (J.A. p. 136). As the Order

stated:

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 record

reveals that the appellant freely

waived any fifth amendment

p otections in 1980.

(J.A. p. 136). The Order of the Fourth

Circuit reflects its sua sponte

determination that the decision in

Arizona v. Roberson, supra, established

new guidelines for law enforcement and

did not have more than the most

tangential relationship to truth

finding.

This Court has recently looked at

retroactivity in its decision in Teague

v. Lane, U.S. __, 109 S.Ct. 1060

(1989). Justice O'Connor wrote that in

habeas corpus the issue of retroactivity

should be a threshold question "for,

once a new rule is applied to the

defendant in the case announcing the

rule, even-handed justice requires that

it be applied retroactively to all those

similarly situated." Id. at 1069-1070.

In her opinion, a new rule for

retroactivity purposes is when it breaks

new ground or imposes a new obligation

on state or federal Government. "To put

it differently, a case announces a new

rule if the result was not dictated by

precedent existing at the time the

defendant's conviction became final."

Id. at 1070, citing Truesdale v. Aiken,

480 U.S. 527, 528-529 (1987) (Powell,

J., dissenting).

In the habeas corpus context,

Justice O'Connor's analysis adopted

Justice Harlan's view of retroactivity

set forth in Mackey v. U.S., 401 U.S.

667, 675 (1971), for cases on collateral

review. Particularly, the opinion

recognized the frustration of state

courts to faithfully apply existing

constitutional law only to have a

federal court discover, during a

[habeas] proceeding, new constitutional

commands. In Teague, two exceptions to

the general rule on nonretroactivity

were stated:

(1) a new rule should be applied

retroactively if it places "certain

kinds of primary, private

individual conduct beyond the power

of the criminal law making

authority to proscribe;" and

(2) a new rule should be applied

retroactively if it requires the

observance of "those procedures

that ... are implicit in the

concept of ordered liberty."

In Penry v. Lynaugh, _U.S.__, No.

87-6177 (June 26, 1989), the court

relied upon the Teague analysis and

concluded that the finality concerns

underlying Justice Harlan's approach are

applicable in the capital sentencing

context, as are the two exceptions to

his general rule or nonretroactivity set

out above.

As indicated in both Teague and

Penry, the Court must initially

determine whether granting him the

relief he seeks would create a "

new

rule." The suggesticn here is better

put whether this Court's decision in

Arizona v. Roberson, supra, created a

"new rule."

On the issue of whether a matter

would be a "new rule," the Court stated:

Justice Harlan recognized the

inevitable difficulties that will

arise in attempting to determine

whether a particular decision has

really announced a 'new' rule at

all or whether it has simply

applied a well-established

constitutional principle to govern

a case which is closely analogous

to those which have been previously

considered in the prior case law.

Mackey, supra, at 695. [Citations

omitted].

Penry, supra. Application of

constitutional rules not in existence at

the time a conviction became final

seriously undermines the principle of

finality which is essential to the

operation of the criminal justice

system. The Court in Teague, supra, 109

S.Ct. 1075, further recognized that

"state courts are understandably

frustrated when they faithfully apply

existing constitutional law only to have

a federal court discover during a habeas

proceeding new constitutional commands."

In U.S. v. Johnson, 457 U.S. 537,

549 (1982), the Court stated:

When a decision of this Court

merely has applied settled

precedents to new and different

factual situations, no real

questions of retroactivity has

arisen as to whether the later

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 rule in any material way.

Similarly, in Yates v. Aiken, 484 U.S.

211 (1988), the Court held that the rule

of Francis v. Franklin, 471 U.S. 307

(1985), did not announce a new rule

because it "was merely an application of

the principle that governed our decision

in Sandstrom v. Montana, 442 U.S. 510

(1979), which had been decided before

the defendant's trial took place.”

The question raised in this

proceeding is whether the rule of

Arizona v. Roberson, supra, is a new

rule or is it merely an application of

the principle that governed this Court's

decision in Edwards v. Arizona, supra.

Stated another way, did Roberson

announce a new rule that was not

dictated by precedent existing at the

time of the conviction. The Petitioner

contends that Roberson was not a new

rule but merely applied Edwards.

In Edwards, the defendant was

arrested on various charges including

murder. He submitted to interrogation

initially but then requested an

attorney. Questioning ceased, but two

detectives came to the jail the next

morning and a guard advised them to talk

with Edwards. He waived his right to

silence and implicated himself. The

Court reversed holding that an accused

who expresses his desire to face further

questioning with counsel present will

not be subject to further interrogation

until counsel is made available unless

he initiates it. The Court therein was

concerned with the accused's

understanding of his rights and his

willingness to waive them free of

coercion.

The focus of Edwards was to protect

an accused in custody from being

badgered into confessing to the crime he

had been interrogated upon. Subsequent

questioning about a different and

independent investigation presents

little risk of the same concept of

police badgering.

Far different from the focus of

Edwards, the rule announced in Arizona

v. Roberson, supra, focused on two

TWMMMETYYY freeessssseeeeee==**°*SSRRRpp

separate investigations. The only

similarity was continuous custody and

that counsel had not been made

available. As the dissent reasoned in

Roberson,

It is a frequent occurrence that

the suspect is wanted for

questioning for other crimes

unrelated to the one for which he

has been apprehended. The rule

announced today will bar law

enforcement officials, even those

from some other city or other

jurisdiction from questioning a

suspect about an unrelated matter

if is in custody and has

requested counsel to assist in

answering the questions put to him

about the crime for which he was

arrested.

Roberson, supra, 108 S.Ct. 2102

(Kennedy, J., dissenting).

The Roberson decision was the first

to apply the bright line rule to

SS aT Se a :

separate investigation. To the

contrary, in Maine v. Moulton, supra,

the court was careful to note under a

Sixth Amendment analysis that while

evidence that related to invoked charge

would not be admissible, the evidence

pertaining to the charges to which the

Sixth Amendment right had not attached

would be admissible. Accord Michigan v.

Moseley, 423 U.S. 96 (1975). While

admittedly not controlling in the

context presented, these cases indicate

a clear difference concerning separate

investigations. An analysis of those

cases clearly reveals the result in

Roberson was not dictated by Edwards.

The analysis instead reveals that it

should more properly be styled an

extension of Edwards to separate

investigations.

Here, the Order below determined

that the rule of Arizona v. Roberson

announced a new rule by setting new

guidelines for law enforcement officers

by requiring the preclusion of any

interrogation on unrelated conduct after

a suspect in custody had invoked his

right to counsel on the subject of his

custody. (J.A. p. 136). The Supreme

Court had never addressed that setting

although some other state courts had

held that it was not a constitutional

violation. State v. Dampier, 314 N.C.

292, 333 S.E.2d 230 (1985); McFadden v.

Commonwealth, 300 S.E.2d 924 (Va. 1983);

Lofton v. State, 471 S.E.2d 1294 (Fla.

App. 1985); State v. Newton, 682 P.2d

295 (Utah 1984). Roberson, supra, 108

S.Ct. 2093, 2097, n. 3. As Roberson

acknowledged, the statements deemed

inadmissible in Edwards and later cases

applying its doctrine were statements

relating to the same investigation in

which the right to counsel was invoked.

Roberson, supra, at 2102. Here, the new

rule of Roberson was the first opinion

to apply it to separate investigations

which is as much a new rule of criminal

procedure as the Edwards decision was

when it was decided. Solem v. Stumes,

465 U.S. 638 (1984).

The Petitioner contends that the

lower court did not apply Edwards

retroactively. We disagree. As stated

in the panel decision, the Fourth

Circuit unequivocally applied Edwards to

the Butler situation. (J.A. p. 129).

The Court, in reconsideration of the

Petition for Rehearing, stated that it

would not apply the m-ndate of this

Court's decision in Roberson to the

Butler setting. (J.-A. pp. 134-137).

Since Roberson established new

guidelines for law enforcement, we

submit that it should not be applied to

collateral review since it does not fall

within the two exceptions set forth in

Justice O'Connor's opinion in Teague.

Application of the rule in Roberson

would not accord constitutional

protection to any primary, private

individual conduct nor create the

watershed rule of criminal procedure

Mackey, supra, was concerned with.

Here, the suspect received oral warnings

pursuant to Miranda and signed two

written waivers of his constitutional

rights, including his right to have

counsel appointed or assist in the

interrogation. In this record, at no

time did he ever request counsel to

assist the interrogation for this crime

or the unrelated crime he was in custody

for before or during the interrogation.

Simply put, this case does not present

the concerns of “badgering”™ or

coerciveness that Roberson was concerned

cal

with remedying. Now, almost nine years

after the interrogations, the Petitioner

seeks to have a technical change applied

to him where the evidence is undisputed

that he waived his right to have the

assistance of counsel.

CONCLUSION

For all of the foregoing reasons,

we submit that the judgment of the

United States Court of Appeals for the

Fourth Circuit should be affirmed or

certiorari dismissed.. Should the Court

find that Roberson should be

retroactively applied, remand on the

merits of the Roberson claim to the

Court of Appeals may also be

appropriate.

Respectfully submitted,

T. TRAVIS MEDLOCK

Attorney General

* DONALD J. ZELENKA

Chief Deputy Attorney General

* Counsel of &

August 11, 1989

IN THE

SUPREME COURT OF THE UNITED STATES

No. 88-6677

October Term 1988

HORACE BUTLER,

Petitioner,

JAMES AIKEN, WARDEN, AND

THE ATTORNEY GENERAL OF

SOUTH CAROLINA, T. TRAVIS

MEDLOCK ,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AFFIDAVIT OF SERVICE

PERSONALLY appeared before me,

Donald J. Zelenka, who being duly sworn,

deposes and says that he served the

foregoing Brief of Respondents on the

Petitioner by depositing three copies of

the same in the United States Mail,

first class postage prepaid, and

addressed to John H. Blume, Esquire,

South Carolina Death Penalty Resource

Center, Post Office Box 11311, Columbia,

South Carolina 29211. He further

certifies that all parties required to

be served have been served.

This llth day of Aug

Wi [4

5 onal sf

1989.

ll ay pot Augus ,

“Nn fergel (LS)

Notary ic r th lina

My Commission Expi res: Jel, 43 FS.

SWORN to befor

IN THE

SUPREME COURT OF THE UNITED STATES

No. 88-6677

October Term 1988

HORACE BUTLER,

Petitioner,

JAMES AIKEN, WARDEN, AND

THE ATTORNEY GENERAL OF

SOUTH CAROLINA, T. TRAVIS

MEDLOCK ,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AFFIDAVIT OF FILING

PERSONALLY appeared before me,

Donald J. Zelenka, who being duly sworn,

deposes and says that he is a member of

the Bar of this Court and that-on this

date he filed the original and forty

copies of Brief of Respondents in the

above captioned case by depositing same

with Emery & Purolator Worldwide Courier

& Cargo, prepaid, and properly addressed

to the Clerk of this Court.

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.