Respondents Brief — Arizona v. Roberson

Cae ten

Boe Pe al

» “at ay cor ly

>. ey : 4

* + ‘ es

t re iv Ny

ae a

) Ss : ?

a

EY 46

Ea Sekar ns

_, e. es a

Andee hrcA 2

i 7

i

QUESTIONS PRESENTED FOR REVIEW

Did the trial court and the Court of Appeals properly

hold that since the Respondent had invoked his Fifth

Amendment right to counsel during his initial interroga-

tion and counsel was never provided, that statements

made by Respondent, pursuant to subsequent interroga-

tion, must be suppressed?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED For REVIEW............--- i

TABLE OF CASES AND AUTHORITIES. ...........s0ee00- iii

STATEMENT OF THE CAGE... occ cccccccccccccscosees 1

SUMMARY OF ARGUMENT. ...........ccecccecccceces 2

[PFRODUCTION . ooo cccccccecsceesseunen ne 3

ARGUMEINUES . «occ ccccvecesoecesunennnee 7

I. THE TRIAL Court AND THE CourT Or APPEALS

PROPERLY HELD THaT Mr. ROBERSON’S STATE-

MENTS CouLpD Nort BE UsEp IN THE PRosECcU-

TION’S CASE-IN-CuH1EF By A CorREcT APPLICA-

TION OF MIRANDA V. ARIZONA AND EDWARDS V.

ARIBOUR oc ccccccceccéeessessn ee 7

II. Since THE FirtH AMENDMENT PRIVILEGE

AGAINST SELF-INCRIMINATION Has As Its Focus

THE StaTE OF MIND OF THE SusPEcCT, WHETHER

THE Po.ice OFrFricerRS WuHo INITIATED THE

REINTERROGATION OF THE SUSPECT KNEW OR

Dip Not Know OF THE SusPECcT’s Prior INvoca-

TION OF His FirtH AMENDMENT RiGHuT To Coun-

SEL, AND WHETHER THE REINTERROGATION

FocusEeD ON “CRIME ONE” OR “CRIME Two” ARE

IRRELEVANT IN DETERMINING WHETHER THE

SuSPECT’s FIFTH AMENDMENT RICHTS UNDER

MIRANDA AND EDWARDS WERE VIOLATED ..... 12

III. Tuts Court SHOULD RETAIN Epwarp v. ARI-

ZONA AND Its PER SE RULE AGAINST POLICE-

INITIATED REINTERROGATION OF AN In-

Custopy Suspect AFTER HE Has INVoKED His

F'1FTH AMENDMENT RIGHT To COUNSEL ....... 18

IV. RESPONSE To SoLIciTroR GENERAL’SARGUMENT 23

TABLE OF CASES AND AUTHORITIES

Cases Page

Arizona v. Mauro, _ U.S. ——, 107 S.Ct. 1931,

teenie ccececepucceccccce 18-19

Brown v. Walker, 161 U.S. 591 (1896). ................ 3,4

Cohens v. Virginia, 6 Wheat. 264, 387 (1821) .......... 4

Connecticut v. Barrett, ___. U.S. ——, 107 S.Ct. 828

ee ace sccscccecccceccccce 16, 17

Edwards v. Arizona, 415 U.S. 477, 485, 101 S.Ct. 1880

PEE ih adncapeescecdvececcccccccces passim

Escobedo v. Illinois, 378 U.S. 485 (1963). ............. 4

Haynes v. Washington, 373 U.S. 508, 519............. 5

Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477 (1985)... 17

Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964) ..... 3

Michigan v. Jackson, _. U.S. ——, 106 S.Ct. 1404,

ee dec cecccececcsecesscccece 17

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321 (1975) passim

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

DPEUCER used encesecescoscesccceccces passim

Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135

Ne, es asecestececceces 7, 8, 12, 17

ES, Sccccccccccccserscccccccccccccces 15

Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338 (1984) .. 6

State v. Routhier, 137 Ariz. 90, 669 P.2d 68 (1983)..... 9, 10

United States ex rel. Espinoza v. Fairmen, 813 F.2d 117,

ee ccc ce cescescccceces 17

Westover v. U.S., 384 U.S. 496. ............0 eee eeee 13, 14

Respondent does not take issue with Petitioner's state-

ment of the trial court and Court of Appeals holdings, its

jurisdictional statement and its citation of the constitu-

tional and statutory provisions involved.

STATEMENT OF THE CASE

For the purpose of simplification, Respondent will refer

to the April 16, 1986 burglary as Crime One and the April

15, 1986 burglary as Crime Two.

On April 16, 1986, Respondent was arrested near the

scene of a burglary which had occurred only moments

earlier. At that time, he was advised of his Miranda

rights by the arresting officer, Officer Perez, and “subject

replied that he understood his rights and that he wanted a

lawyer before answering any questions.” (R.T. of April 3,

1986 at 26). After he invoked his right to counsel, another

officer, Officer Garrison, questioned Mr. Roberson at the

scene of the arrest regarding Crime One. (/d. at 23).

Shortly thereafter, another officer, Detective Quinn,

questioned Mr. Roberson at the scene of the arrest, again,

regarding Crime One. (R.T. of October 17, 1985).

The officers transported Mr. Roberson to an eastside

police substation, and there, Detective Quinn and another

officer, Detective Wright, engaged in further interroga-

tion of Mr. Roberson regarding Crime One. (/d. at 9-11).

Next, the officers booked Mr. Roberson and put him in

jail. At this point, Mr. Roberson still had not been allowed

to consult with counsel. The next day, still two more

officers approached Mr. Roberson while he was in jail and

further interrogated Mr. Roberson regarding Crime One.

On April 19, still in jail and having been in continuous

custody, another group of officers, Detectives Cota-

Robles, Quinn and Thorson, went out to the jail and

interrogated Mr. Roberson about Crime Two. The detec-

tives read to him his Miranda rights. Mr. Roberson stated

2

that he understood them and wanted to talk. Mr. Reber-

son had not spoken to a lawyer since his arrest on April 16,

1986. (R.T. of April 3, 1986 at pp. 3-7, 15-16).

The trial court and the Court of Appeals suppressed the

statements made by Mr. Roberson during the April 19

questioning in the state's case-in-chief regarding Crime

Two, finding the statements were obtained in violation of

Mr. Roberson’s Fifth Amendment rights. It is those state-

ments made on April 19, regarding Crime Two, which are

the subject of this appeal.

SUMMARY OF ARGUMENT

Miranda and Edwards clearly hold that a defendant’s

right to silence under the Fifth Amendment also entails

the right to have an attorney present before speaking

during custodial interrogation. The bright line rules of

Miranda and Edwards require a finding that where a

defendant remains in custody after requesting counsel,

any subsequent interrogation would be unduly coercive

and, therefore, statements made in subsequent inter-

rogations must be suppressed. The subject matter of

those interrogations is irrelevant under Fifth Amend-

ment analysis since it is the voluntariness of the state-

ments that is the issue. In the present case, Mr. Roberson

clearly decided to speak to counsel before making state-

ments to the officers and indicated as much to the police.

He was then confined for several days and reinterrogated

without speaking to a lawyer. The statements made dur-

ing the subsequent interrogation were properly sup-

pressed. The trial court and the Court of Appeals

correctly held that the statements should be excluded

from the State’s case-in-chief. This Court should affirm

the lower courts’ decisions.

3

INTRODUCTION

Prior to engaging in an analysis of the Petitioner's spe-

cific arguments, it is important to recall some basic princi-

ples of American jurisprudence regarding criminal

procedure laws grounded in the United States Constitu-

tion.

The Fifth Amendment to the United States Constitu-

tion provides that “No person... shall be compelled in

any criminal case to be a witness against himself.” This

privilege against self-incrimination applies to the states

pursuant to the Due Process Clause of the Fourteenth

Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489

(1964). Evidence obtained in violation of this privilege

must be excluded from trial. Edwards v. Arizona, 415

U.S. 477, 485, 101 S.Ct. 1880 (1981).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

(1966), the Court quoted extensively from an early Fifth

Amendment case, Brown v. Walker, 1611 3. 591 (1896),

to point out the reasons why the frame of the United

States Constitution found it so imperat provide each

person the privilege against self-incr tion:

Over 70 years ago our pre’ ors on this Court

eloquently stated:

The maxim nemo tenetur seipsum accusare had

its origin in a protest against the inquisitorial and

manifestly unjust methods of interrogating

accused persons, which [have] long obtained in the

continental system, and, until the expulsion of the

Stuarts from the British throne in 1688, and the

erection of additional barriers for the protection of

the people against the exercise of arbit power,

[were] not uncommon even in England. le the

admission or confessions of the prisoner, when vol-

untarily and freely made, have always ranked high

4

in the scale of incriminating evidence, if an accused

person be asked to explain his apparent connection

with a crime under investigation, the ease with

which the questions put to him may assume an

inquisitorial character, the temptation to press the

witness unduly, to browbeat him if he be timid or

reluctant, to push him into a corner, and to entrap

him into fatal contradictions, which is so painfully

evident in many of the earlier state trials, notably

in those of Sir Nicholas Throckmorton, and Udal,

the Puritan minister, made the system so odious as

to give rise to a demand for its total abolition. The

change in the English criminal procedure in that

particular seems to be founded upon no statute and

no judicial opinion, but upon a general and silent

acquiescence of the courts in a popular demand.

But, however adopted, it has become firmly

embedded in English, as well as in American juris-

prudence. So deeply did the iniquities of the

ancient system impress themselves upon the

minds of the American colonists that the States,

with one accord, made a denial of the right to

question an accused person a part of their funda-

mental law, so that a maxim, which in England was

a mere rule of evidence, became clothed in this

country with the impregnability of a constitutional

enactment. Brown v. Walker, 161 U.S. 591,

596-597 (1896).

384 U.S. at 442-43. In the words of Chief Justice Marshall,

5

heavily on a suspect’s confession to a crime. The Court

stated:

We have learned the lesson of history, ancient and

modern, that a system of criminal law enforcement

which comes to depend on the ‘confession will, in the

long run, be less reliable and more subject to abuses

than a system which depends on extrinsic evidence

independently secured through skillful investigation.

As Dean Wigmore so wisely said:

“TA]ny system of administration which permits

the ; namation to trust habitually to compulsory

self-disclosure as a source of proof must itself suf-

fer morally thereby. The inclination develops to

rely mainly upon such evidence, and to be satisfied

with an incomplete investigation of the other

sources. The exercise of the power to extract

answers begets a forgetfulness of the just limita-

tions of that power. The simple and peaceful pro-

cess of questioning breeds a readiness to resort to

bullying and to physical force and torture. If there

is a right to an answer, there soon seems to be a

right to the expected answer,—that is, to a con-

fession of guilt. Thus the legitimate use grows into

the unjust abuse; ultimately, the innocent are

jeo ized by the encroachments of a bad system.

Such seems to have been the course of experience

in those legal systems where the privilege was not

recognized.” 8 Wigmore, Evidence (3d ed. 1940),

by fixing the privilege against self-incrimination in the

Constitution, the precious right was secured “for ages to

come, and ... designed to approach immortality as

nearly as human institutions can approach it.” Cohens v.

Virginia, 6 Wheat. 264, 387 (1821).

Furthermore, the Court in Escobedo v. Illinois, 378

U.S. 485 (1963), recognized that American jurisprudence

has traditionally taken a dim view of the State relying too

309. (Emphasis in original.)

This Court also has recognized that “history amply

shows that confessions have often been extorted to

save law nag 1 oer — -- —- ~y effort

ining valid and independent evidence....

| Sonne Washington, 373 U.S. 503, 519. (Footnotes

omitted. )

378 U.S. at 488-90.

6

In Miranda v. Arizona, supra, the Supeem

recognized that custodial interrogations aie ‘one

ently compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak

where he would not otherwise do so freely.” Id. at 467, 86

S.Ct. at 1624. To combat the compelling pressures which

are involved in xe very nature of custodial interrogations

and to provide an in-custody suspect a full opportunity to

exercise his Fifth Amendment right against self-

incrimination, the Court formulated a set of procedural

safeguards in order to secure the privilege against self-

incrimination. The «rt in Miranda held that prior to

initiating any que=cioning, the State must adequately and

effectively apprise the suspect of his rights, “and the

exercise of those rights must be fully honored.” Id

M tranda goes on to say that when an accused requests to

remain silent, “the interrogation must cease.” If he states

that he wants an attorney, “the interrogation must cease

= an attorney is present.” Jd. at 473-74, 86 S.Ct. at

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880

(1981), the Court formulated another procedural safe-

guard designed to secure the privilege against self-

incrimination. The Court in Edwards adopted the rule

that when an accused has “expressed his desire to deal

with the police only through counsel, [he] is not subject to

further interrogation by the authorities until counsel has

been made available to him, unless the accused himself

initiates further communication, excha.ges, or con-

— with the police.” Jd. at 484-85, 101 S.Ct. at

In a later case, Solem v. Stumes, 465 U.S. 638. 104

- + sarong (1984), the Court explained the effect of

7

Edwards established a bright line rule to safeguard

pre-existing rights, not a new substantive require-

ment. Before and after Edwards a suspect had a

right to the presence of a lawyer, and could waive that

right. Edwards established a new test for when that

waiver would be acceptable once the suspect had

invoked his right to counsel: the suspect had to initi-

ate subsequent communication.

465 U.S. at 646.

ARGUMENTS

I. THE TRIAL COURT AND THE COURT OF APPEALS

PROPERLY HELD THAT MR. ROBERSON’S STATE-

MENTS COULD NOT BE USED IN THE PROSECU-

TION’S CASE-IN-CHIEF BY A CORRECT APPLICA-

TION OF MIRANDA V. ARIZONA AND EDWARDS

V.ARIZONA.

In Miranda and in the cases following Miranda, the

Supreme Court has made a clear distinction among the

cases in which an accused has merely invoked his rignt to

remain silent and those cases in which he has invoked the

right to counsel before answering questions. Where the

accused simply asserts his right to remain silent, the

police may resume custodial interrogation if the right of

the accused to cut off questioning is scrupulously hon-

ored. )ichigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321

(1975); foran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135

(1986). Jn the other hand, where the accused requests

counsel, the interrogation must immediately cease and it

may not resume until the accused is provided with coun-

sel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880

(1981). Discussing the difference between requesting

counsel and merely remaining silent, the Court in

Edwards stated:

Miranda, itself indicated that the assertion of the

right to counsel was a significant event and that once

8

exercised by the accused, “the inte

one until an attorney is present.” 384 'S at 474.

‘wee cases have not abandoned that view. In

: 7 wan v. Mosley, the Court noted that Miranda

ad distinguished between the procedural safe-

guards triggered by a request to remain silent and a

request for an attorney and had required that inter-

rogation cease until an attorney was present only if

be individual stated he wanted counsel. In Fare v

Michael C., the Court referred to Miranda’s “rigid

e that an accused's request for an attorney is per se

an invocation of his Fifth Amendment rights requir-

ing that all interrogation cease.” And just last Term

7 a case where a suspect in custody had invoked his

Miranda right to counsel, the Court again referred

. the “undisputed right” under Miranda to remain

sient and to be free of interrogation “until he had

consulted with a lawyer.” Rhode Island v. Innis. We

reconfirm these views and, to lend them substance

emphasize that it is inconsistent with Miranda and

re progeny for authorities at their instance, to rein-

pi = ee im custody if he has clearly

(Emaphesin saden 0 counsel. (Citations omitted),

451 U.S. at 485.

In amore recent case, Moran v. Burbi

} q ne, 475 U.S. 412,

106 S.Ct. 1135 (1986), the Court again noted the distinc-

tion between a suspect's re

weel quest for counse

to remain silent: a

When a suspect has re

quested counsel, the inter-

rogation must cease, regardless of any question of

waiver, unless the suspect himself initiates the con-

versation. (Emphasis added).

475 U.S. 414, n.1. Because the suspect in Moran simply

requested to remain silent rather than requesting coun-

ms

9

In Michigan v. Mosley, supra, Justice White stated

succinctly in his concurring opinion the reason why the

Court distinguishes between a simple request to remain

silent and a request to remain silent until one can speak

with an attorney:

(T]he reasons to keep the lines of communication

between the authorities and the accused open when

the accused has chosen to make his own decisions are

not present when he indicates inste« that he wishes

legal advice with respect thereto. The authorities

may then communicate with him through an

attorney. More to the point, the accused having

expressed his own view that he is not competent to

deal with the authorities without legal advice, a later

decision at the authorities’ insistence to make a state-

ment without counsel’s presence may properly be

viewed with skepticism. (Emphasis added).

423 U.S. at 110, n.2.

The Arizona court recognized the distinction between a

suspect’s request for counsel and a mere request to

remain silent. The Arizona Supreme Court, in State v.

Routhier, 137 Ariz. 90, 669 P.2d 68 (1983), held that once

an in-custody suspect had invoked his Fifth Amendment

right to counsel, the police could not properly reinterro-

gate the suspect until he was provided with counsel. It did

not expand Edwards. The fact that the renewed question-

ing pertained to a separate crime than the one for which

he was initially arrested was found to be irrelevant. That

fact lacked “any legal significance for Fifth Amendment

purposes,” the court held. Jd. at 96-97, 669 P.2d at 76. The

court in Routhier reached its decision by correctly and

consistently applying well-settled principles of Fifth

Amendment Constitutional Law, as explained in

Miranda and Edwards.

10

In the present case, Mr. Roberson requested a lawyer

immediately after being taken into custody. Instead of

being allowed to speak with a lawyer, he was questioned

four different times regarding Crime One (all in clear

violation of Edwards), spent three days in jail, still with-

out having an opportunity to consult with a lawyer, and on

the third day of his incarceration, a detective approached

Mr. Roberson, not at Mr. Roberson’s request, and ques-

tioned him a fifth time since the invocation of his right to

counsel. The only distinction was that he questioned him

regarding a separate crime. As in Routhier, supra, the

fact that the renewed questioning pertained to Crime Two

is irrelevant and lacks any legal significance for Fifth

Amendment purposes.

A quote from the Arizona Supreme Court in State v.

Routhier, supra, is particularly appropriate here to

explain why the statements made by Mr. Roberson should

be excluded from the State’s case-in-chief:

The assertion of the right to counsel is an expression

by the accused that he is not competent to deal with

the authorities without legal advice. See Edwards v.

Arizona, supra. The resumption of questioning in

the absence of an attorney after an accused , be

invoked his right to have counsel present durin

police interrogation strongly suggests to an sumead

that he has no choice but to answer. Thus, “a later

decision at the authorities’ insistence to make a state-

ment without counsel's presence may properly be _

viewed with skepticism.” es Michigan v.

Mosley, 423 U.S. 96 (1975), White, J., concurring).

Id. at 97-98, 669 P.2d at 76-77.

There is compelling evidence that Mr. Roberson’ state-

ments where involuntary. The type of police misconduct

which occurred in this case was exactly the type which

this Court attempted to prevent in Edwards v. Arizona.

ll

Mr. Roberson’s perception of whether he should talk or

not was not affected by whether he was talking about

“Crime One” or “Crime Two.” Rather, his sense of com-

pulsion came from the oppressive custodial setting, the

fact that he had requested a lawyer and was not provided

with one, and the fact that he was questioned again and

again by police officers after he had requested a lawyer.

All of these factors combined strongly suggested to Mr.

Roberson that he had no choice but to answer. Under

these circumstances, there can be no finding that Mr.

Roberson made the statements voluntarily and there can

be no finding that Mr. Roberson made any valid waiver of

his right to counsel. For, “[t]o permit the continuation of

custodial interrogation after a momentary cessation

would clearly frustrate the purposes of M tranda by allow-

ing repeated rounds of questioning to undermine the will

of the person being questioned.” Michigan v. Mosley, 423

U.S. 96, 102 (1975).

The purposes of the Fifth Amendment, Miranda, and

Edwards were clearly offended by the present case: A

request for counsel was ignored, four rounds of custodial

questioning took place, the Respondent was held in jail

for three days without any contact with counsel and then

questioned a fifth time. The trial court and the Court of

Appeals properly held that Mr. Roberson’s statements

made during this fifth interrogation could not be used in

the prosecution’s case-in-chief. Likewise, this Court

should so hold.

12

Il. SINCE THE FIFTH AMENDMENT PRIVILEGE

AGAINST SELF-INCRIMINATION HAS AS ITS

FOCUS THE STATE OF MIND OF THE SUSPECT,

WHETHER THE POLICE OFFICERS WHO INITI-

ATED THE REINTERROGATION OF THE SUSPECT

KNEW OR DID NOT KNOW OF THE SUSPECT’S

PRIOR INVOCATION OF HIS FIFTH AMENDMENT

RIGHT TO COUNSEL, AND WHETHER THE REIN-

TERROGATION FOCUSED ON “CRIME ONE” OR

“CRIME TWO” ARE IRRELEVANT IN DETERMIN-

ING WHETHER THE SUSPECT’S FIFTH AMEND-

MENT RIGHTS UNDER MiRANDA AND EDWARDS

WERE VIOLATED.

With a proper understanding of the goals of the Fifth

Amendment privilege against self-incrimination as set

forth in Miranda v. Arizona, and Edwards v. Arizona, it

becomes evident that in analyzing the privilege and the

question of voluntariness of a waiver of the privilege, the

courts should focus solely upon the mental state of the

suspect and his sense of compulsion. This focus is to

assure that any statements made by the suspect are vol-

untary. To that end, “the state of mind of the police is

irrelevant to the question of the intelligence and volun-

tariness of respondent’s election to abandon his rights.”

Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135 (1986).

Similarly, once an in-custody suspect has invoked his

right to counsel, the subject matter of a police-initiated

reinterrogation is irrelevant in determining whether the

suspect’s rights were violated. When the suspect has

requested counsel before answering any questions, the

suspect becomes “off-limits” to the police and the police

may not re-approach him for questioning on any subject

until he has been provided counsel or until he himself

initiates communication or conversation. This rule is

clearly stated in Edwards:

13

[A]lthough we have held that after initially being

advised of his Miranda rights, the accused may him-

self validly waive his rights and respond to interroga-

tion, ... the Court has strongly indicated that

additional safeguards are necessary when the

accused asks for counsel; and we now hold that when

an accused has invoked his right to have counsel

present during custodial interrogation, a valid

waiver of that right cannot be established by showin

only that he responded to further police-initiate

custodial interrogation even if he has been advised of

his rights. We further hold that an accused, such as

Edwards, having 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 police. (Citations and footnote

omitted).

451 U.S. at 484-85.

Mr. Roberson was arrested in Crime One, requested

counsel before answering any questions, was asked ques-

tions about Crime One four times, and then was ques-

tioned a fifth time about Crime Two. When he was asked

about Crime Two, an officer who previously questioned

him regarding Crime One was present and did part of the

questioning. Nothing in these facts indicate Mr. Roberson

acted voluntarily. The State confuses the simple issue

presented in this case by wrongly relying on various prior

cases which distinguish between investigations.

The Petitioner's reliance on the “separateness” of the

investigation which lead to the subject confession is mis-

placed. The Petitioner uses a passage from Westover v.

U.S., acompanion case of Miranda, in support of its case.

It does so by ignoring the clear facts before this Court.

Westover states:

14

A different case would be presented if an accused

were taken into custody by the second authority,

removed both in time and place from his origi

surroundings and then adequately advised of his

rights and given an opportunity to exercise them.

The Court goes on to say:

But here the FBI interrogation was conducted imme-

diately following the State interrogation in the same

— station - in the same compelling surroundings.

us, in obtaining a confession from Westover, the

Federal authorities were the beneficiaries of the pres-

sure applied by the local in-custody interrogation. In

these circumstances, the giving of warnings alone

was not sufficient to protect the privileged. (Empha-

sis added).

384 U.S. at 496-97.

The State actually argues that the fact that Mr. Rober-

son was removed in time and place from his original sur-

roundings are facts in favor of the State’s argument. This

is ridiculous. He was removed from the scene of the

arrest, taken and booked into custody in a jail and never

given an attorney. As set forth in Petitioner's Statement of

Facts, he was questioned five different times after orig-

inally asking to speak only through an attorney. He was

clearly not given an opportunity to exercise his right to

remain silent and to speak only through counsel.

The Petitioner argues that the facts in the present case

are almost identical to those in the hypothetical set forth

above in Westover. However, the facts of the Roberson

case are much more like the actual facts of Westover.

Roberson was in the “same compelling surroundings” at

the time of his confession, namely, under arrest and in

custody of the State. Also, the detectives in this case, in

obtaining a confession from Roberson, “were the benefici-

15

aries of the pressure applied by the in-custody interroga-

tion” of others.

Next, the State argues that Michigan v. Mosley, 423

U.S. 96 (1975), should control the outcome of the present

ease. The State fails to recognize clear distinctions

between this case and the facts of Michigan v. Mosley.

The most obvious distinction is that the defendant in

Mosley merely requested to remain silent, rather than

requesting counsel. Michigan v. Mosley itself, as set forth

in direct quotes above, distinguishes between the need to

keep lines of communication open when an accused has

chosen only to be silent, and the lack of such need when

the accused has decided to deal with the authorities only

with legal advice. Since Mr. Roberson decided to deal

with the authorities only through an attorney, Mosley

does not control this case and subsequent statements

made without removal of the coercive atmosphere and

without honoring his request for counsel must be consid-

ered involuntary.

Next, the State misapplies Oregon v. Elstad to the case

at hand. Oregon v. Elstad’s key holding is:

It is an unwarranted extension of Miranda to hold

that a simple failure to administer the warning unac-

companied by any actual coercion or other circum-

stances calculated to undermine the suspect’s ability

to exercise his free-will, so taints the as

process that a subsequent voluntary and informed

waiver is ineffective for some indeterminate period.

The difference between Elstad and the present case is as

follows: Elstad’s first confession was without Miranda

warnings, thus his subsequent waiver of his rights was

not prefaced by a prior request for counsel. Roberson

requested counsel first and thus, the reinterrogation indi-

cated to him that he did not have the choice of consulting

16

an attorney, since he had requested one and his request

was ignored.

The error of the State’s argument is further docu-

mented by this statement found on page 28 of its brief:

The circumstances here (passage of time, change of

place, change of interrogators) include all the factors

which would serve to dissipate the coercive effect of

even an involuntary initial statement, as well as the

proper administration of Miranda warnings by Det.

Cota-Robles which by itself would cure an uncoerced

and voluntary initial statement.

To the contrary, the passage of time and the repeated

interrogations 2 officers only aggravated the

coercive effect. ile Mr. Roberson was waiting for the

lawyer he had requested in order to talk to the police, he

continued in custody without counsel and the repeated

questioning by police did not dissipate the coercive nature

of the situation but clearly added to it. The actions of the

police, and the fact Mr. Roberson was kept in custody

without an attorney implied to him a clear message: Our

statement about your right go an attorney is a lie. That

being the message, the confession was involuntary.

Petitioner argues that Connecticut v. Barrett, __. U.S.

—__., 107 S.Ct. 828 (1987), mitigates in its favor. The

defendant in Barrett clearly indicated the desire to talk

voluntarily without counsel. The restriction he invoked

was that he would not put anything in writing without

counsel and the State complied with that restriction. The

Supreme Court held that there was no reason to interpret

his request for an attorney more broadly than the clear

— language of the request indicated. The court

stated:

To conclude that respondent invoked his right to

counsel for all purposes requires not a broad inter-

pretation of an ambiguous statement, but a disregard

of the ordinary meaning of respondent's statement.

17

107 S.Ct. at 832.

In the present case, Petitioner argues that Mr. Rober-

son invoked his Fifth Amendment rights for the limited

purpose of discussing “Crime One” and not for “Crime

Two.” However, a reading of the record indicates quite the

contrary. When the police arrested Mr. Roberson and

advised him of his Miranda rights, “subject replied that

he understood his rights, and that he wanted a lawyer

before answering any questions.” (R.T. of April 3, 1986 at

p. 26). (Emphasis added). An interpretation of this

request according to its ordinary meaning indicated that

Mr. Roberson fully invoked his right to counsel for all

purposes and all subjects of interrogation.

Indeed, this Court has required that “a broad, rather

than a narrow, interpretation to a defendant’s request for

counsel” be given, Michigan v. Jackson, __ U.S. —_,

106 S.Ct. 1404, 1409 (1986). The Seventh Circuit, in inter-

preting Connecticut v. Barrett, stated “ . . a court must

presume that an individual has invoked the full extent of

his or her constitutional right to counsel.” United States

ex rel. Espinoza v. Fairman, 813 F.2d 117, 123 (7th Cir.

1987).

In addition to Mosley, Elstad and Barrett, Petitioner

cites some Sixth Amendment cases: Michigan v. Jackson,

475 U.S. 625, 106 S.Ct. 1404 (1986); Maine v. Moulton,

474 U.S. 159, 106 S.Ct. 477 (1985); and, Moran v. Bur-

bine, 475 U.S. 412, 106 S.Ct. 1135 (1986). The Fifth

Amendment and the Sixth Amendment encompasses two

very distinct rights. It is true that Fifth Amendment

analysis has been, and continues to be, applied to Sixth

Amendment cases, but no case suggests that Fifth

Amendment rights should be restricted because of Sixth

Amendment analysis. This is a Fifth Amendment case

18

and it should not be restricted by a Sixth Amendment

analysis.

» Petitioner further confuses the issues by attempting to

apply the independent source doctrine to this case. The

Petitioner argues that the State is placed in a worse

position that it would have been had it not violated Mr.

Roberson’s rights. This presumes Mr. Roberson would

have acted differently if his first Miranda warning

occurred after he was placed in jail. There is no evidence

to support this. Mr. Roberson, we must presume, would

have requested counsel then. It is only after his request

went unheeded that he spoke, giving up a right that to Mr.

Roberson seemed worthless by then. Had Mr. Roberson

been supplied with an attorney before any further inter-

rogation, he and his attorney would have decided to pro-

ceed with his defense and in all likelihood he would not

have made subsequent admissions. The source of Mr.

Roberson’s statements was not independent but rather

caused by continual police custodial interrogation after

assuring Mr. Roberson he had the right to counsel.

Il. THIS COURT SHOULD RETAIN EDWARDS V. ARI-

ZONA AND ITS PER SE RULE AGAINST POLICE-

INITIATED REINTERROGATION OF AN IN-

CUSTODY SUSPECT AFTER HE HAS INVOKED

HIS FIFTH AMENDMENT RIGHT TO COUNSEL.

As noted above, this Court adopted the Edwards per se

rule against police-initiated interrogation as a means of

providing an in-custody suspect a full opportunity to exer-

cise his privilege against self-incrimination. The Court

recently explained that the purpose behind Miranda v.

Arizona and Edwards v. Arizona is “preventing govern-

ment officials from using the coercive nature of con-

finement to extract confessions that would not be given in

an unrestrained environment.” Arizona v. Mauro, ——

19

U.S. ——, 107 S.Ct. 1931, 1936-37 (1987). There is a

supreme interest in ensuring that the Constitution is

upheld, that due process is given to all persons subject to

the court system and to ensure an effective adversary

process. Miranda and Edwards have done well in ensur-

ing the promotion of these interests. Taking awa,

Edwards would be taking a major step backward in ‘he Pa

fair, efficient and consistent application of criminal pro-/

cedure laws grounded in the constitution. Furthermore ’

to not apply Edwards to the present case would be to stm

the suspect’s request for counsel of any meaning and to

give little accord to his Fifth Amendment privilege

against self-incrimination.

There is a great interest in preventing a recurring

pattern of the police behavior which occurred in the pres-

ent case. A suspect’s invocation of his right to speak with

counsel before answering questions would have no mean-

ing whatsoever if the police were allowed to repeatedly

question the suspect before honoring his request for coun-

sel. Repeated custodial interrogations after a request for

counsel gives the suspect the impression that his request

has no practical meaning and that he has no choice but to

answer, regardless of the subject reinterrogation or the

mental state of the interrogator.

The Edwards per se rule is easy to understand and

likewise easy to apply. It is no imposition on the police to

refrain from questioning the suspect until he has been

provided with counsel, once he makes the request. It is

totally unacceptable for the police to hold a suspect for

three days and to engage in reinterrogation before honor-

ing his request. Such a situation easily can be interpreted

as a deliberate attempt to break a suspects’ will and a

means of extracting a confession that otherwise would not

be given.

20

In short, there was a powerful reason to adopt the per

se rule in Edwards and there continues to be a powerful

reason to retain that per se rule.

IV. RESPONSE TO SOLICITOR GENERAL’S ARGU-

MENT.

If one carefully examines the facts of this case, most of

the argument of the Solicitor General does not even apply.

He presumes a simple case where a defendant is arrested

on State Charge One, and then is later interviewed in jail

by a different agency with no contact whatsoever with the

earlier agency in Federal Charge Two. This case is not so

simple. In the present case, Mr. Roberson was questioned

four times on Crime One and then questioned on Crime

Two. The questioning in Crime Two involved one new

officer not present previously and another officer who had

previously violated Mr. Roberson’s right in questioning

him on Crime One. Thus, whether or not the Court

decides to continue the bnght line rule of Edwards from a

policy point of view, the present case clearly involved

badgering by the police and clearly involved facts such

that the trial court’s finding that the confession was invol-

untary should be upheld.

The Solicitor General’s brief, like .4e State’s brief,

makes the error of focusing primarily on the actions of the

police rather than on the state of mind of Mr. Roberson. In

general, when a defendant is being investigated, he is not

informed of the subject of the investigation or whether the

investigation is in any way related to prior questioning.

The main fact that he is aware of is that he is in jail and

persons are asking him questions about crimes. A defend-

ant is not aware, nor should he be required to be aware, of

the intent of the investigator.

21

By eliminating the bright line rule of Edwards as the

Solicitor General suggests, the courts would then have to

inquire into the content of the conversations between the

defendant and all of the investigators. The Court would

have to inquire whether officers knew of prior invocations

by the suspect, and officer credibility would be ques-

tioned. There is also great potential for abuse. The law, as

requested by the Solicitor General, would put a premium

on ignorance. Indeed, if the approach argued for by the

Solicitor General is taken, it is imaginable that law

enforcement agencies would adopt a policy of not inquir-

ing into whether a defendant has requested counsel

before approaching that defendant for questioning in a

situation where he is in custody on another charge. To

take the argument to its most absurd result, a person who

is wanted on various multi-state and multi-agency crimes

could be questioned ten times in a single setting, so long

as the questions were regarding separate investigations

by separate officers. In effect, all the abuses which were

prevented by Edwards wouid be allowed so long as

defendant happened to be the subject of several different

investigations.

The Solicitor General argues that “while law enforce-

ment officials involved in a single investigation can reason-

ably be required to be aware that the suspect has

requested counsel and to treat him accordingly, it is far

more burdensome to require every investigator to deter-

mine whether any suspect he questions in custody has

previously requested counsel in connection with any unre-

lated investigation.” This statement lacks common sense.

Any investigator would have to determine that the sus-

pect was in jail and being held on a certain charge. It

would be very easy to review the arrest information to

determine whether or not the suspect has requested

22

counsel. Indeed, if there were ever a time that it would be

difficult to determine whether a suspect had requested

counsel, it would be during the booking process of a single

incident arrest. This case is on point. Mr. Roberson was

questioned by several officers after he had requested

counsel in response to the Miranda warnings of the first

officer who spoke to him. All four of the officers who

clearly violated Mr. Roberson’s Fifth Amendment rights

were involved in the first investigation and ignorant of his

invocation. This is a burden law enforcement officials have

been required to live with for some time, and it has not

caused any major problems. To require the same of inves-

tigators from different agencies at a time when the

defendant has already been booked into custody would

not be an additional burden.

The Solicitor General aiso argues about the extreme

value of the interrogation process. This Court is referred

to the language cited earlier in this brief about the history

of the Fifth Amendment. Important to that history is the

policy that interrogation is not to be relied on as the

primary tool of law enforcement agencies.

The Solicitor General argues that the defendant may

have a different motivation in the second investigation to

speak. Again, this argument presumes that the suspect

will have been clearly informed of the two different inves-

tigations that are occurring. This was clearly not the case

nor would it be generally. As soon as a suspect is arrested

anu charged with a crime, requests to remain silent and

requests counsel, he will not gain any more information on

any investigation except through counsel. In the event

the defendant needs information, his attorney provides it.

The Solicitor General requests that this Court distinguish

between separate interrogation relating to separate

crimes and a truly “independent investigation.” The Solic-

23

itor General does not give this Court any suggestion as to

how to define “independent investigation.” Any definition

would have to focus on the mind of the defendant, and that

being so, no definition would work. Especially applied to

this case where an investigator from Crime One was

present during the questioning on Crime Two, there

clearly could be no finding that these cases were totally

independent of each other.

Finally, while the Solicitor General and the various

other briefs filed in this matter all argue that there would

be less chance of an involuntary wa ver when the inter-

rogations were related to separate i vestigations and/or

separate crimes, no brief explains wt y. The Solicitor Gen-

eral’s argument should not be accepted by this Court as it

would trade a bright line rule for a very complicated

analysis of whether an investigation was adequately inde-

pendent. It would switch focus from the state of mind of

the defendant to the actions of agencies in determining

whether somebody made a confession voluntarily. This

would be inappropriate since the Fifth Amendment has as

its main purpose an individual's right to remain silent.

Even if the Solicitor General’s arguments are agreed to

in the abstract, that clearly cannot apply to this case

where there were not independent investigations. There

were so many different violations of Mr. Roberson’s rights

that there was unquestionable badgering by the police,

and Mr. Roberson, because of all the facts of the case, did

not make a voluntary confession.

CONCLUSION

This case is a simple one to decide when the confused

analysis of the Petitioner is set aside. Miranda and

Edwards hold that a defendant’s right to silence under the

Fifth Amendment also entails the right to have an

24

attorney present before speaking while in custodial inter-

rogation. The bright line rules of M iranda and Edwards

require a finding that where a defendant remains in

custody after requesting counsel, any subsequent inter-

rogation would be unduly coercive and, therefore, state-

ments made in su!)sequent interrogations must be

suppressed. The subject matter of those interrogations

and the mental state of the police is irrelevant under Fifth

Amendment analysis since it is the voluntariness of the

statements that is the issue. In the present case, Mr.

Roberson clearly decided to speak to counsel before mak-

ing statements to the officers and indicated as much to the

police. He was then confined for several days and reinter-

rogated without speaking to a lawyer. The statements

made during the subsequent interrogation were properly

suppressed.

The trial court and the Court of Appeals correctly held

that the statements should be excluded from the State’s

ease-in-chief. This Court should affirm the lower courts

decisions.

Raspectfully submitted,

ROBERT L. BARRASSO

(Appointed by this Court)

3100 N. Campbell Avenue, #101

Tucson, Arizona 85719

(602) 795-2002