# Opposition Brief — Davis v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 452

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0404%3A03. Public record. Not legal advice.