Opposition Brief — Davis v. United States

BEST AVAILABLE COPY,

QUESTION PRESENTED

Whether a law enforcement officer may ask questions

limited to clarifying a suspect’s wishes when the suspect

makes an ambiguous comment regarding counsel during

a custodial interrogation.

(I)

TABLE OF CONTENTS

Opinions below ........c.ccessessessecssessessuesuessessesssesseeseesseeseeseeesee

rls a ncn ncessusmsenngcconccoocoscees

a erence ncn sestnsansesestesecoreceocorcooes

TABLE OF AUTHORITIES

Cases:

Edwards v. Arizona, 451 U.S. 477 (1981) ......0000000000..

Maglio v. Jago, 580 F.2d 202 (6th Cir. 1978) oo...

McNeil v. Wisconsin, 111 S. Ct. 2204 (1991) .....00000000000....

Michigan v. Harvey, 494 U.S. 344 (1990) ...0.....000000000000....

Michigan v. Mosley, 423 U.S. 92 (1975) .........0.0006000ccccceees

Minnick v. Mississippi, 498 U.S. 146 (1990) ......0000000.......

Miranda vy. Arizona, 384 U.S. 436 (1966) ............0000000.....

Mueller v. Virginia, 113 S. Ct. 1880 (1993) ........0000000000.....

Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444

i cnscooncocosecs

Oregon v. Bradshaw, 462 U.S. 1039 (1983) .......0..00000000....

Smith v. Illinois, 469 U.S. 91 (1984) 200.0000... ccc

United States v. Fouche, 776 F.2d 1398 (1985), appeal

after remand, 833 F.2d 1284 (9th Cir. 1987), cert.

denied, 486 U.S. 1017 (1988) ..............cccccccccceseeececeeeeeeess

United States v. Gotay, 844 F.2d 971 (2d Cir. 1988) ........

United States v. Mendoza-Cecelia, 963 F.2d 1467 (11th

Cir.), cert. denied, 113 S. Ct. 436 (1992) ..00...000cc.

United States v. Porter, 776 F.2d 370 (ist Cir. 1985) ......

United States v. Riggs, 537 F.2d 1219 (4th Cir. 1976) ......

Statute:

Uniform Code of Military Justice, Art. 118, 10 U.S.C.

a ccsusoncnsoneoses

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-1949

RoBERT L. DAVIS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Military Appeals, Pet.

App. la-lla, is reported at 36 M.J. 337. The opinion of

the Navy-Marine Corps Court of Military Review,

Pet. App. 12a-15a, is not officially reported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on March 11, 1993. The petition for a writ of

certiorari was filed on June 8, 1993. The jurisdiction

of this Court is invoked under 28 U.S.C. 1259(3).

(1)

STATEMENT

Petitioner Davis, a member of the United States

Navy, was convicted at a general court-martial on one

specification of unpremeditated murder, in violation of

Article 118 of the Uniform Code of Military Justice,

10 U.S.C. 918. He was sentenced to confinement for

life, a dishonorable discharge, forfeiture of all pay and

allowances, and a reduction in rank to pay grade E-1.

The convening authority approved the findings and

sentence. The Navy-Marine Corps Court of Military

Review affirmed. Pet. App. 12a-15a. The Court of

Military Appeals granted discretionary review and

affirmed. Pet. App. la-1la.

1. On the evening of October 2, 1988, Seaman Keith

Shackleton played pool with petitioner in the Enlisted

Mens’ Club at the United States Naval Base,

Charleston, South Carolina. Tr. 583, 606, 619-620,

639-641, 714, 728, 746-747. Shackleton lost the game

and a $30 wager, but he refused to pay. After the club

closed, petitioner killed Shackleton by beating him

with a pool cue on the loading dock of the commissary,

a short distance from the club. Tr. 714, 728, 746-747.

Shackleton’s body was found early the next morning

by a milk delivery man. Tr. 662.

In the first stage of the ensuing investigation, some

150-250 sailors were interviewed, including peti-

tioner. Tr. 136. During petitioner’s first interview

on October 20, 1988, petitioner said that he was at the

Enlisted Mens’ Club playing pool on the night of the

murder. AXs 28, 36; Tr. 165, 792-796. Petitioner said

that he recognized a photograph of Shackleton and

believed that he had played pool with him. Tr. 792-796.

He also said that two individuals named Wade Bielby

and Bonnie Krusen had told him about Shackleton’s

3

murder just three days after it happened and had told

him that Shackleton had been “beaten with a pool

stick.” Tr. 65, 792-796.' At the end of the interview,

petitioner agreed to turn his pool cues over to the

Naval Investigative Service (NIS) agents. Jbid.

While surrendering his two pool cues and their case,

petitioner pointed out a stain that he said he thought

was either his blood or catsup. AX 28; PX 7; Tr.

795-796.

As the investigation continued, NIS agents discov-

ered that shortly after Shackleton’s murder, peti-

tioner told several fellow sailors that he had

committed the crime. Petitioner’s account of the

murder involved details of the crime that only the

murderer would have known, or otherwise clearly

indicated that he had been involved in the murder.

For example, on October 5, 1988, in a conversation

that petitioner had with Petty Officer David Guidry,

Guidry said he had heard that Shackleton had died by

falling and injuring his head. Petitioner corrected

Guidry, stating that Shackleton had been “beat up and

stuck with a pool cue.” Tr. 269-270, 702. In addition,

on October 27, petitioner told Petty Officer Ronald

Mull that NIS was investigating petitioner for the

murder of the man killed behind the commissary. Tr.

746. When asked directly if he did it, petitioner told

Mull, “Yes, I did.” Jbid. Petitioner told Mull that he

' Both Krusen and Bielby testified that they had not

discussed Shackleton’s murder with petitioner during that time

period. Tr. 852-853, 855.

2 NIS agents had been looking for people who owned their

own pool cues based on preliminary indications that Shackle-

ton’s injuries were consistent with being struck by a pool cue.

Tr. 118, 123. NIS obtained cues from several individuals during

the investigation. Tr. 125.

4

was playing pool at the Enlisted Mens’ Club and “beat

the guy out of $30.00” and that the “guy” did not want

to pay. Tr. 747. The two had an argument, and they

ended up outside the club. /bid. Mull testified that

petitioner related the following, ibid.:

He said that he hit the guy with a pool—his pool

stick a couple of times and he said he thought he

put one of the guy’s eyes out; said it was messed

up pretty bad. He said—I don’t know exactly

where he was at, but he said that he drug the

guy’s body behind the commissary and then he

said he ran down into the woods and left the base

somehow. * * * He said he went to a girlfriend’s

house. * * *

Petitioner told Mull that he had an alibi; he was seen

by several people with “some girl” at the club.

Petitioner also said that NIS had taken his pool cues

and that one of them had a blood stain that he had

tried to wash off and erase with sandpaper. Petitioner

said he was not worried, however, because he had the

same blood type as the victim. /bid.* Petitioner also

made various other, similar incriminating state-

ments.‘

% Petitioner was wrong. His blood type is B; Shackleton’s

was Q. Tr. 997, 908, 914.

* On October 19, 1988 (the day before NIS first interviewed

petitioner), petitioner told Petty Officer Steven Brothers that

he had been accused of murder. Tr. 274, 707. When Brothers

asked why, petitioner said that the authorities had found

someone dead on the base, that he had played pool with the

victim the night before, and that the authorities were accusing

him of beating the victim with a pool cue. Tr. 274, 708.

One day in October 1988, petitioner told Petty Officer

Richard Kuhn that NIS had taken his pool cues because he had

5

With those statements in hand, NIS agents

arrested petitioner on November 4. Tr. 295.° After

receiving the appropriate warnings both orally and in

writing, petitioner agreed to talk with two NIS

agents. AXs 37, 38, 40; Tr. 295-296, 324-325. When

asked if he wanted to have a lawyer present,

petitioner specifically declined. AX 40; Tr. 295.

During the first part of the interview, petitioner

described his activities during October 1 and 2, 1988.

AXs 38, 40; Tr. 957-958. Specifically, petitioner stated

that he was at the Enlisted Mens’ Club with his

girlfriend. He said he may or may not have played

pool, but that he always has his pool cues with him.

Ibid. Petitioner said that he subsequently went to an

off-base nightclub called “J.W.’s” and then to his

girlfriend’s house. /bid.

played pool with this “guy.” Petitioner also stated that the

“guy” owed him money after the game but did not pay, so

petitioner hit him over the head with a pool cue. Tr. 288, 714.

Petitioner also told Kuhn that he did not know whether the

victim had died, and that he did not care. /bid.

In mid-October 1988, when asked why he was not playing

pool, petitioner told Petty Officer Walter Crayton Biack that

NIS had taken his pool cues. Tr. 272, 728. Petitioner explained

that someone had been killed on the base, that he had been

playing pool with him, that he was the last one seen with him at

the Enlisted Mens’ Club, and that he had won $30 from the

victim but had no reason to be involved in the murder. /bid.

5 Petitioner was arrested as he was released from a psychi-

atric evaluation that his command had ordered because he had

made statements on March 3, 1988, to the effect that he wanted

to kill someone just to see what it was like. AX 31; Tr. 207-208,

1102-1103. In addition, he also told his division officer on

October 20, 1988, that he felt like shooting someone, “[bjetter

yet, a cop because then I know [they] will kill me.” AX 33; Tr.

775. The latter statement was not admitted at trial. /bid.

6

The NIS agents confronted petitioner with his

girlfriend’s statement that she was not at the

Enlisted Mens’ Club that night. Tr. 958-959. Peti-

tioner then changed his stcry, saying that he was at

the Enlisted Mens’ Club with some friends. AXs 38,

40; Tr. 959. NIS then confronted petitioner with a

statement indicating that he had won $30 playing pool

with Shackleton. AXs 38, 40; Tr. 960. Petitioner de-

nied playing pool with Shackleton and denied winning

$30. Ibid. Petitioner explained the presence of a

bloody t-shirt in his locker as the result of the

extraction of wisdom teeth.*®

About 80 minutes into the interview, petitioner

said, “Maybe, I should talk to a lawyer.” AXs 38, 40;

Tr. 297, 304, 309, 324. The agents immediately stopped

all questioning of petitioner and sought to clarify his

request. Specifically, as Special Agent Sentell

testified:

[1] made it very clear that we’re not here to violate

his rights, that if he wants a lawyer, then we will

stop any kind of questioning with him, that we

weren't going to pursue the matter unless we

have it clarified is he asking for a lawyer or is he

just making a comment about a lawyer, and he

said, “No, I’m not asking for a lawyer,” and then

he continued on, and said, “No, I don’t want a

lawyer,” and then he said he didn’t kill the guy and

he said that he was the type of person that if he did

kill the guy, he’d have to tell someone about it.

Tr. 310; see also Tr. 307, 313, 315, 316, 324-325, 331-332.

® The extraction was confirmed by petitioner’s oral surgeon

and by forensic testing establishing that petitioner’s blood, not

the victim’s, was on the t-shirt. DX K; Tr. 1260-1261.

7

After confirming that petitioner did not want a

lawyer, the agents recessed for a short break. Tr.

297, 304. Petitioner was asked if he wanted a drink or

a cigarette. Tr. 297, 303, 329.’

At the beginning of the second portion of the

interview, Special Agents Clark and Sentell reminded

petitioner that he still enjoyed the rights about which

he previously had been advised. Tr. 304-305, 329.

Petitioner began to discuss a conversation that he

had had with Petty Officer Guidry, during which he

told Guidry that the man who died behind the

commissary had been killed with a pool cue. When

asked why he said that, petitioner said he liked to

“mess” with people and make them think he knew

more than they knew. AXs 38, 40; Tr. 961. When

asked why he said that the man had been “hit and

jabbed,” petitioner said that he had added that detail in

order to make his description sound more realistic.

Petitioner then changed his story, stating that

Bielby had told him the details about the pool cue.

Ibid.

Petitioner said that he knew who had killed

Shackleton, and he named one “Jeff Kaiser.” AXs 38,

40; Tr. 961. Petitioner’s basis for that opinion -was

that Kaiser did not go to the club for almost a month

after the murder because Kaiser was scared and

because he had been “doing acid” that night and may

have done something he did not remember. /bid.

Petitioner finally said that if he had killed someone,

he would have had to tell somebody. AX 40; Tr. 961.

The NIS agents then confronted petitioner with the

fact that he had told someone, and that individual had

7 Petitioner also used the bathroom once during the

interview. Tr. 333.

8

provided a sworn statement to NIS. Tr. 316. At that

point, petitioner said, “I think I want a lawyer before I

say anything else.” The agents immediately ter-

minated the interview. Tr. 310-311; see also AX 40;

Tr. 307, 312-314, 316, 332.

2. Before trial, petitioner moved to suppress his

statements. AX 9, No. 20. The trial judge held an

evidentiary hearing on the motion. The government’s

witnesses testified that petitioner had been properly

advised of his rights; that during the questioning he

made an ambiguous statement regarding counsel; that

the NIS agents ceased their questioning once peti-

tioner made that statement; that petitioner then

denied wanting to speak with counsel; and that when

petitioner later asked to speak to an attorney, all

questioning ceased. Petitioner gave a different

version of the events.*

After the hearing, the trial judge denied peti-

tioner’s motion. Specifically, the trial judge deter-

mined, Tr. 342:

8 According to petitioner, the agents “were talking to me,

and I said, ‘Well, I’d like a lawyer,’ and they said, ‘We'll take a

break,’ and they walked out and left me handcuffed to the

chair.” Tr. 319. Petitioner said that later “[tJhey came back in

and started questioning me again.” Jbid. Petitioner indicated

that, notwithstanding the fact that he understood he had a

right to a lawyer, he didn’t pursue getting a lawyer when

questioning began again because he “really did not understand

* * * what was going on.” Tr. 321. Petitioner stated that he

asked for a lawyer again later using the same words, “I want a

lawyer,” at which time questioning stopped for the most part.

Tr. 321-322. Based on that evidence, petitioner argued that the

government had not established a valid waiver of rights at the

initiation of the interview and that he had requested and been

denied counsel during the interview, in violation of Edwards

v. Arizona, 451 U.S. 477 (1981). Tr. 338-340.

9

I think that pursuant to Military Rule of Evidence

304 that the accused was properly advised of his

rights pursuant to Article 31 and the cases of

Miranda and Tempia, and that he intelligently

and freely waived those rights. Moreover, I find

that the mention of a lawyer by the accused

during the course of the interrogation to have

been not in the form of a request for counsel and

that the agents properly determined that the

accused was not indicating a desire for or invok-

ing his right to counsel. The motion to suppress

the 4 November ‘88 statement is accordingly

denied.

3. The Navy-Marine Corps Court of Military

Review unanimously affirmed the findings and sen-

tence. Pet. App. 12a-15a. Without comment, the court

rejected the error raised here, among others, as

meritless.

4. The Court of Military Appeals affirmed. Pet.

App. la-lla. The court determined that petitioner had

made only a “vague” or “ambiguous” reference to

counsel and that it “required clarification.” Jd. at

10a. Following the majority of other federal courts

that have considered this question, the court held

that law enforcement authorities may make limited

inquiries in order to clarify such an ambiguous

reference to counsel by a person who is being

subjected to a custodial interrogation. /hid. Applying

that rule to the facts of this case, the court found that

the NIS agents’ inquiries were appropriately limited

to that purpose, and that their conduct did not

interfere with petitioner’s right to counsel under

Miranda. Id. at 10a-11a.

10

ARGUMENT

Petitioner urges this Court to grant certiorari to

decide whether a law enforcement officer may make a

limited inquiry of a suspect who has made an

ambiguous remark about counsel during a custodial

interrogation in order to clarify whether the suspect

wishes the assistance of counsel. While we agree

with petitioner that there is some disagreement

among the lower courts on this question, Mueller v.

Virginia, 113 S. Ct. 1880, 1881 (1993) (White, J.,

dissenting from the denial of certiorari), there is no

need for the Court to resolve that disagreement here.

As this Court has noted, the lower courts have

taken three approaches to determining whether law

enforcement officers may question a suspect if he has

made an ambiguous reference to counsel during

custodial interrogation. The approaches are: (1) to

require the officers to cease all questioning once a

suspect refers to counsel, however ambiguous that

reference may be; (2) to require the officers to cease

further interrogation, but to allow them to ask the

suspect questions limited to clarifying his desires

with respect to counsel; and (3) to permit the officers

to continue the interrogation until the suspect makes

an unambiguous request for an attorney. Smith v.

Illinois, 469 U.S. 91, 95-97 n.3 (1984).

In this case, the Court of Military Appeals approved

the use of limited, clarifying questions when a sus-

pect makes an ambiguous reference to a lawyer. That

approach accommodates the interests of suspects and

law enforcement. It vindicates a suspect’s interest in

avoiding the type of police badgering that is the

justification for the bright-line rule of Edwards, see

McNeil v. Wisconsin, 111 S. Ct. 2204, 2208 (1991);

11

Minnick v. Mississippi, 498 U.S. 146, 150 (1990);

Michigan v. Harvey, 494 U.S. 344, 350 (1990); Oregon

v. Bradshaw, 462 U.S. 1039, 1044 (1983) (plurality

opinion), without requiring him to state with preci-

sion that he wishes to consult with an attorney before

further questioning. At the same time, it permits law

enforcement officers to undertake a reasonable

inquiry in order to discern what a suspect truly

desires once he makes an ambiguous reference to an

attorney. Cf. Michigan v. Mosley, 423 U.S. 96, 102

(1975) (“a blanket prohibition against the taking of

voluntary statements or a permanent immunity from

further interrogation, regardless of the circum-

stances, would transform the Miranda safeguards

into wholly irrational obstacles to legitimate police

activity, and deprive suspects of an opportunity to

make informed and intelligent assessments of their

interests.”).° It is a mistake to assume that every

suspect’s ambiguous reference to an attorney in-

dicates a desire to deal with the police only through a

lawyer. As the en banc Fifth Circuit has observed:

“While the suspect has an absolute right to terminate

station-house interrogation, he also has the pre-

rogative to then and there answer questions, if that

be his choice. Some persons are moved by the desire

to unburden themselves [by] confessing their crimes

* Notably, even in Miranda v. Arizona, 384 U.S. 436 (1966),

the Court recognized that a suspect’s invocation of his rights

might be equivocal. The Court cited with approval practices of

the FBI relayed to the Court in a letter from Solicitor General

Thurgood Marshall: “If he is indecisive in his request for

counsel, there may be some question on whether he did or did

not waive counsel. Situations of this kind must be necessarily

left to the judgment of the interviewing Agent.” 384 U.S. at

485.

12

to police, while others want to make their own

assessment of what to say to their custodians.” Nash

v. Estelle, 597 F.2d 513, 517 (en banc), cert. denied, 444

U.S. 981 (1979). For those reasons, it is unsurprising

that the majority of the federal courts of appeals that

have addressed this issue have endorsed the common-

sense approach approved by the Court of Military

Appeals in this case. See, e.g., United States v.

Mendoza-Cecelia, 963 F.2d 1467, 1472 (11th Cir.),

cert. denied, 113 S. Ct. 436 (1992); United States v.

Gotay, 844 F.2d 971, 975 (2d Cir. 1988); United States

v. Fouche, 776 F.2d 1398, 1405 (1985), appeal after

remand, 833 F.2d 1284, 1287 (9th Cir. 1987), cert.

denied, 486 U.S. 1017 (1988); United States v. Porter,

7176 F.2d 370 (1st Cir. 1985) (en banc); Nash v. Estelle,

597 F.2d 513, 517 (5th Cir. 1979); ef. United States v.

Riggs, 537 F.2d 1219, 1222 (4th Cir. 1976).

The Sixth Circuit adopted a contrary rule in

Maglio v. Jago, 580 F.2d 202, 205 (1978), where it held

that law enforcement officers must halt all question-

ing of any type of a suspect who has made even an

ambiguous reference to counsel. There is no need,

however, to resolve the disagreement between Maglio

and the rule in the other circuits. The Sixth Circuit

adopted its rule before this Court decided Oregon v.

Bradshaw, Michigan v. Harvey, Minnick v. Missis-

sippi, and McNeil v. Wisconsin. In each of those

cases this Court made clear that the justification for

the bright-line rule of Edwards v. Arizona was the

need to prevent the police from badgering a suspect

into waiving his right to counsel. The limited type of

inquiry approved by the Court of Military Appeals in

this case and by the majority of the federal courts of

appeals is not likely to lead to the type of badgering

with which this Court was concerned in Edwards. It

13

therefore is appropriate to afford the Sixth Circuit

the opportunity to revisit the question before this

Court undertakes to answer it.

Following that course will not prejudice petitioner,

because his conviction would be upheld regardless of

the approach endorsed by this Court. The reason is

that any error in the admission of the statements that

petitioner made after his ambiguous reference to

counsel was harmless beyond a reasonable doubt.

The statements that petitioner made after his

ambiguous reference to a lawyer were inconsequen-

tial. After that point in questioning, petitioner

merely repeated what he had previously told the NIS

agents about his October 5 conversation with Petty

Officer Guidry about how Shackleton had died. In

addition, petitioner asserted that a “Jeff Kaiser” had

killed Shackleton. See AXs 38, 40; Tr. 961. Those

limited and basically non-inculpatory remarks con-

sisted of less than half a page of testimony in a trial

record that was more than 700 pages in length.

That evidence was insignificant when compared to

the proof of petitioner’s guilt adduced at trial. For

example, the government presented five witnesses

who placed both petitioner and Shackleford at the

Enlisted Mens’ Club on the night of the murder. Tr.

579-585, 606-607, 619-620, 639-641, 648. Forensic

evidence also tied petitioner to the crime. A forensic

chemist, Judith Flynn, testified that petitioner’s

blood type was B and that Shackleton’s was O. PX 21;

Tr. 907, 914. Flynn found blood of the victim’s type on

petitioner’s pants and spots of blood on petitioner’s

tennis shoes. PX 23; Tr. 911-912. A human blood stain

also was found on petitioner’s pool cue case. PX 21:

Tr. 906. Moreover, at various times petitioner made

statements to fellow sailors in which he either

14

specifically admitted assaulting Shackleton, or

otherwise clearly implicated himself in that crime.

Lieutenant Moss and Petty Officers Guidry, Stephen

Brothers, Scott Richard Kuhn, and Walter Crayton

Black recounted petitioner’s various incriminating

statements. Petty Officer Ronald Mull also retold

petitioner’s confession in which he admitted mur-

dering Shackleton because Shackleton had reneged on

a wager. Tr. 702, 707-708, 714, 728, 746-747, 1103.

Petitioner also gave the NIS agents false exculpatory

statements when he said that he had learned about the

facts of the crime from one Everett Wade Bielby and

one Bonnie Krusen, neither of whom spoke with

petitioner during the relevant period, and when he

said that he had spent the night of the murder with

his girlfriend, who denied that claim. Tr. 852-853, 855,

957-958.

In sum, the record evidence overwhelmingly

establishes that petitioner beat Keith Shackleton

with a pool cue, causing him to fall and suffer fatal

head injuries. Admission of the one-half page of non-

inculpatory information obtained after petitioner’s

comment about counsel could not have had a material

effect on the outcome.

15

CONCLUSION

The petition for a writ of i

Pe of certiorari should be

Respectfully submitted.

Drew S. Days, III

Solicitor General

THEODORE G. HESS

Colonel, USMC

BRETT D. BARKEY

Captain, USMC

Appellate Government Counsel

Appellate Government Division, NAMARA

AUGUST 1993