# Respondents Brief — Butler v. McKellar

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 407

## Text

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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 ’ ,

ii

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

47

50

iv

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

27

48

Passim

26

58

31

49

Passim

31

40

63

63

Vv
CASES: Page
Mackey v. U.S., 401 U.S. 667
(1971) Passim
Maine v. Moulton, 474 U.S. 159
) 42,
62

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

vi

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
ta

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

64

12

63

48

63

44,
48°

Passim

55

38

41

46

58

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

35
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,

vs

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

10

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

11

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).

12

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.

13

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

14

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

15

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.

17

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
¢ .

18

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.

~

19

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.

20

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

21

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.

22

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).

23

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.

24

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
I.

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

25

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

26

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 => |

27

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,

28

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

a

29

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,

”

30

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

31

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

32

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

33

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,

34

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

35
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

we
’

36

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.

———

37

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

%."

38

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

39

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.

40

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

41

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.

42

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.

43

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

45

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

46

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

47

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

48

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

49

-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

50

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

51

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

52

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

53

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.

54

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,

55

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

56

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

57

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

58

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
Zz

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

59

(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

60

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

61

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

63

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.

64

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

65

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

66

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,
vs
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
il

5 onal sf
1989.

Cp
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,
vs
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0552%3A7. Public record. Not legal advice.