Reply Brief — Arizona v. Roberson

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

MAR 13 1988

| % 2OSEPH F. SPANIOL, aR,

—SERK—

No. 87-354

In The ;

Supreme Court of the United States

October Term, 1987

— —G

THE STATE OF ARIZONA,

Petitioner,

RONALD WILLIAM ROBERSON,

Respondent.

— o—

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ARIZONA

—O— —

ROBERT K. CORBIN BRUCE M. FERG

The Attorney General Asst. Attorney General

315 State Government Bldg.

WILLIAM J. SCHAFER, III 402 West Congress

Chief Counsel Tucson, Arizona 85701-1367

Criminal Division Telephone: (602) 628-5501

Counsel ot Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES 000.

ARGUMENTS:

I. RESPONDENT'S BRIEF, IN EMPHASIZING

If.

THE SUPPOSED INVOLUNTARINESS OF

ROBERSON’S STATEMENT TO DETECTIVE

COTA-ROBLES, BOTH OVERLOOKS THE

FACTS (WHICH DEMONSTRATE ROBER-

SON’S STATEMENT TO HAVE BEEN VOL-

UNTARY), AND EFFECTIVELY CONCEDES

THE NEED TO CHANGE THE PER SE ED-

WARDS RULE, WHICH CURRENTLY

MAKES VOLUNTARINESS IRRELEVANT. .....

TO THE EXTENT THAT THE SIXTH

AMENDMENT IS A SOURCE FOR THE PER

SE RULE OF EVWARDS V. ARIZONA,

PROPER ANALYSIS REQUIRES THE CON-

CLUSION THAT THE STATEMENTS OB-

TAINED IN THIS CASE SHOULD HAVE

ee | ee

TABLE OF CASES AND AUTHORITIES

Page

CasEs

Colorado v. Connelly, — U.S. —, 107 S.Ct.

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

Johnson v. Zerbst, 304 U.S. 458 (1938) .nnnnecnenenennen 4,8

Maine v. Moulton, 474 U.S. 159 (1985) 6

Michigan v. Jackson, 475 US. 625 (1986) ............... 5, 8

Miran2Za v. Arizona, 384 U.S. 436 (1966) 4, 5, 6,7

Moran v. Burbine, 475 U.S. 412 (1986) 6, 7

CoNSTITUTIONAL PROVISIONS

Lt) eee 6,7

Amendment 6... sacrenstiieieenesiitammnasimm 6, 7

ARGUMENTS

RESPONDENT’S BRIEF, IN EMPHASIZING

THE SUPPOSED INVOLUNTARINESS OF

ROBERSON’S STATEMENT TO DETECTIVE

COTA-ROBLES, BOTH OVERLOOKS THE

FACTS (WHICH DEMONSTRATE ROBER-

SON’S STATEMENT TO HAVE BEEN VOL-

UNTARY), AND EFFECTIVELY CONCEDES

THE NEED TO CHANGE THE PER SE ED-

WARDS RULE, WHICH CURRENTLY MAKES

VOLUNTARINESS IRRELEVANT.

The issue before this Court is whether the per se rule

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

applicable to a case where a suspect is ultimately ques-

tioned about a crime wholly separate from the one in view

when he was given his rights warnings and asked for a

lawyer. Necessarily implied by that question is the thresh-

old question whether the per se rule of Edwards should

be applied in any case, a matter addressed by both parties.

(See Petitioner’s Brief at °5-41; Respondent’s Brief at

18-20.) However, the major theme of Respondent’s Brief

seems to be an effort to convince this Court that Rober-

son’s April 19, 1985 statement to Detective Cota-Robles

was not voluntarily given.!

1 Respondent's Brief flatly calls the statement involuntary

at least six times. (See pages 10-11, 13, 15, 16, 20, 23.) It re-

peatedly argues, despite this Court's recent decision in Colorado

v. Connelly, — U.S. —, 107 S.Ct. 515 (1987), that the analytical

focus should be on the suspect's state of mind. (See pages 12,

20, 23.) It refers almost a dozen times to the repeated question-

ing of Roberson. (Pages 1, 10, 11, 13, 14, 16, 18, 19, 20.) It re-

peatedly emphasizes the length of time Roberson was in custody

without counsel before he was questioned by Detective Cota-

Robles. (Pages 1-2, 10, 11, 14, 16, 19, 24.) It even characterizes

the trial court’s action as being a “‘tinding that the confession

was involuntary.” (Page 20.)

Respondent’s zeal to demonstrate involuntariness does

a disservice to this Court in at least two ways. First, it

tends to create a distorted view of the facts of this case.

For example, one may read Respondent’s Brief in its en-

tirety without ever finding mention of the fact that the

trial court concluded that Roberson’s statement was volun-

tary, and therefore was admissible as impeachment if

Roberson testified at trial. (R.T. of April 3, 1986, at 43-

36; see also Petitioner’s Brief at 6.) That conclusion was

not challenged in the Arizona Court of Appeals during the

State’s appeal of the suppression order, which was strictly

limited to the Edwards issue. (See the various briefs in-

eluded with the record certified to this Court. ) Therefore,

that Roberson’s statement was indeed voluntary simply

is not open to question in this Court, and Respondent’s

characterization of the trial court’s ruling is manifestly

wrong.

Another example: Respondent’s Brief at 1, 10, 13, and

20 asserts that all of the questioning after Roberson’s

arrest, except Detective Cota-Robles’ interview on April

19, 1985, related to “Crime One’’, the April 16 burglary

during which Roberson was apprehended. This tends to

create an impression of badgering, that culminated in the

statement given to Cota-Robles. However, there actually

is nothing in the record from which it can be positively

determined what the subject matter of each interview was,

but there are strong indications that several of the inter- -

views concerned information about others’ drug offenses

and” robberies, which Roberson was offering to mitigate

the heavy sentence he expected to receive on his burglary,

and were not repeated interrogations about *‘Crime One’’,

in which he had been caught ‘‘red-handed’’. (See R.T. of

Oct. 17, 1985, at 12, 18, 27-28; R.T. of April 3, 1986, at 29-

30.) Thus, Respondent’s Brief has gone to great lengths

to create an aura of involuntariness when the facts indi-

cate, and the trial court found, that Roberson’s statement

to Detective Cota-Robles was wholly voluntary.

This baseless emphasis on supposed involuntariness

is particularly inappropriate in this case, because the es-

sence of Respondent’s position is that the Edwards rule

should be maintained in all its per se rigidity. Voluntari-

ness-in-fact is completely irrelevant if the per se rule of

Edwards remains viable; the point of that case was the

establishment of an absolute rule against police-initiated

renewal of interrogation, so that it simply doesn’t matter

whether Robert Edwards or Ron Roberson or any otuer

suspect is speaking voluntarily, if they don’t get in the

first word. Thus, much of Respondent’s Brief appears

to be a purely emotional appeal, of negligible assistance to

the Court in resolving the issue before it. However, the

inability of Respondent’s Brief to escape voluntariness

analysis, even in the midst of advocacy of the Edwards

per se rule, dramatically demonstrates an intuitive recog-

nition of where the fundamental values of our constitu-

tional criminal law system truly reside. Even the attor-

ney with the greatest imaginable stake in the maintenance

of the Edwards per se rule has implicitly acknowledged

that it is resolution of the issue of voluntariness-in-fact

which permits us to say whether someone was compelled

to incriminate himself (contrary to the Fifth Amendment),

or whether it is fundamentally fair (as required by the

Due Process Clause of the Fourteenth Amendment) for

the person’s statement to be admitted into evidence against

him. Thus, Respondent’s own advocacy supports revision

of the per se rule of Edwards.

his Court has previously been presented with a vari-

ety of reasons why the Edwards rule is ripe for reevalua-

tion. (Sce Petitioner’s Brief at 35-41.) Respondent’s

Brief unwittingly but forcefully supports the proposition

that the Edwards per se rule should be abandoned, by

showing that the rule is not really responsive to the ques-

tion it was supposed to answer—whether it is just in the

constitutional sense to admit the defendant’s statements

against him. That only a voluntariness inquiry can ac-

complish. If the recognized social costs inflicted by utili-

of an exclusionary rule are not substantially out-

~.-d by the benefits to be derived from the use of such

' -. implementation cannot be justified. Seven years

& << rience with the Edwards rule shows that its bene-

maceeptably costly, so it should now be abandoned

or of the traditional rights waiver test of Johnson

Ze vbst, 304 U.S. 458 (1938).

II.

TO THE EXTENT THAT THE SIXTH AMEND-

MENT IS A SOURCE FOR THE PER SE RULE

OF EDWARDS V. ARIZONA, PROPER ANAL-

YSIS REQUIRES THE CONCLUSION THAT

THE STATEMENTS OBTAINED IN THIS

CASE SHOULD HAVE BEEN ADMITTED.

When Respondent does deal with the nature and ef-

fects of Edwards as a per se rule, rather than attempting

to create an emotionally-charged vision of relentless police

‘‘badgering’’, he finds himself on the horns of a dilemma.

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

spoke of two situations in which interrogation of a suspect

should cease: when he invokes his right to silence and

when he asks for a lawyer. This Court concluded in Mich-

igan v. Mosley, 423 U.S. 96 (1975), that invoking the right

to silence was not an absolute bar to further police ques-

tioning, so long as the suspect’s right was ‘*serupulously

observed’’. It would seem logical that invocation of the

‘‘right to counsel’’, which in the context of interrogation

acts in precisely the same way as invocation of the right

to silence, should have been treated in the same way-—a

voluntary waiver would be acceptable at some point in

time if the right was ‘‘scrupulously observed”’.

Instead, this Court created the per se rule of Edwards,

forbidding any police-initiated renewal of questioning.

This differing treatment was apparently based on a per-

ception that the ‘‘right to counsel’’ was of such value, even

in interrogation situations, that it needed to be more jeal-

ously protected. It is far from clear that, at least in the

context of pre-arraignment interrogation, such a distinc-

tion can properly be drawn. An account of an address

given in 1983 by Yale Kamisar, one of the staunchest sup-

porters of Miranda and its progeny, indicates that even he

cannot rationalize the distinction.

Preliminarily, Kamisar discussed Miranda’s prog-

eny in general, focusing on the Court’s differentiation

between invocation of the right to remain silent in

Michigan v. Mosley, 423 U.S. 3017 [sie] (1975), and in-

vocation of the right to counsel. He termed it ‘‘baf-

fling’’ that the Court has given the police greater lee-

way to resume interrogation when the right to remain

silent has been asserted. Miranda’s language cuts the

other way, he suggested; furthermore, logic would

seem to call for greater protection of the right to re-

main silent since that is the basic right that Miranda

meant to safeguard. The right to counsel is merely

a derivative right in these circumstances.

(34 Crim.L.Rep. at 2101.) However, if extra protection

is to be accorded to an invocation of the ‘‘right to counsel’’,

which on its face appears to be a mere adjunct and off-

shoot of the Fifth Amendment right to silence, whence

comes this additional value which requires special safe-

guards? The only possible source would seem to be an-

other amendment, presumably the Sixth, which in other

contexts generates the right to the assistance of counsel.

And therein lies the rub for Respondent. Sixth

Amendment rights must also have Sixth Amendment lim-

its, unless a logically indefensible attitude of ‘* Heads, I

win; tails, vou lose’’ is adopted, applying to a crimmal

defendant the benefits~but not the strictures of Sixth

Amendment analysis. As pointed out in Petitioner’s Brief

at 31-33, this Court’s decisions in Maine v. Moulton, 474

U.S. 159 (1985), and Moran v. Burbine, 475 U.S. 412

(1986), plainly indicate that the Sixth Amendment requires

a knowing circumvention of an accused’s rights for there

to be a violation, and will not permit an error committed

in one case to be the basis for suppressing evidence in an

unrelated case which contained no error. Such an analysis

would certainly require admission of Roberson’s state-

ment to Detective Cota-Robles, because Miranda was fol-

lowed to the letter and the statement was voluntary, so

there was no basis for exclusion in that case, taken by

itself.

Respondent wants the Edwards rule to remain rigid,

when the only basis for distinguishing the multi-factor

Mosley approach from the per se Edwards approach is

that the Edwards-protected right apparently is at least

partially derived from the Sixth Amendment rather than

solely from the Fifth Amendment—and Sixth Amend-

ment analysis entails admission of Roberson’s statement.

Respondent’s Brief cannot resolve this tension; it merely

mumbles for one paragraph (pages 17-18) and hurries on.

This Court’s intellectual integrity will not permit it to

skirt the issue in this way. If the Sixth Amendment is

indeed one of the sources for Edwards, then Mate v.

Moulton and Moran v. Burbine require the statement in

this case to be found admissible. If the Sixth Amendment

is not a source for Edwards, and the Miranda-generated

‘‘right to counsel’? is merely an adjunct to the Fifth

Amendment right to silence, then logically the per se Ed-

wards rule must be abrogated and a consistent Mosley-

like approach be adopted whenever a Miranda right waiver

is at issue.

_—.

CONCLUSION

Respondent’s Brief discloses no substantial defects in

the reasoning of Petitioner’s Brief. Therefore, this Court

should award one of the alternate forms of relief requested

by Petitioner—either restrict Edwards to one-investiga-

tion cases or (preferably) abrogate altogether the per se

rule of Edwards, substituting an approach like that utiJized

in Michigan v. Mosley and Johnson v. Zerbst, 304 US.

458 (1938).

Resp ctiully submitted,