Opposition Brief — Florida v. Trody

Petitioner,

* : “% ;

4

PETITION FOR

QUESTION PRESENTED

WHETHER THE POLICE ARE PROHIBITED FROM

INITIATING INTERROGATION ON UNCHARGED OFFENSES

WHERE THE ACCUSED HAS REMAINED IN CONTINUOUS

CUSTODY AFTER REQUESTING AT A JUDICIAL

PROCEEDING THAT HIS ATTORNEY BE PRESENT AT ANY

QUESTIONING “"

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I. QUESTION PRESENTED . ... + + © © © © © © © © © © © @ 8 i

II. TABLE OF AUTHORITIES ... «1. © «© © © © © © © © © © © ol hw ASS

III. STATEMENT OF THE CASE ....+ + © © © © © © © © © © «© » 1

IV. SUMMARY OF ARGUMENT .... + 6+ © © © © © © © © © © @ «8 4

V. ARGUMENT . . © © © © © © © © © © © © © © © © © eo eo oe 4

THIS COURT SHOULD NOT GRANT

CERTIORARI BECAUSE THE DECISION

BELOW IS CORRECT. ... «+4 «© © © «© © © © © @ « 4

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CERTIFICATE OF SERVICE ... + +e 06 © © © © © o-e « Bl

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II. TABLE OF A RITIE

CASES Pe

oberson,

186 U. 3. 675, 108 S. Ct. 2093, 100 L.Ed.2d 704 (1988). . . .passim

v. Aiken,

846 F.2d 255 (4th Cir. 1988), on reconsideration,

864 F.2d 24 (1989), aff’d sub nom. Butler v. McKellar,

__ iU.S. __, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) .... 9

Butler v. McKellar,

U.S. , 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) ....49

Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) .. . passim

Illinois v. Perkins, . -

U.S. , 110 8.Ct. 2394, L.Ed.2d (1990) .. 9, 10

McNeil v. Wisconsin,

U.S. , 111 §.Ct. 340, 112 L.Ed. 305 (1990) .... 4, 6

Michigan v. Jackson,

475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) .. 4, 5,8

Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) ...... 8

. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ae oe

State v. McNeil,

454 N.W.2d 742 (Wisc. 1990), cert. granted,

McNeil v. Wisconsin, U.S. ___, 111 S.Ct. 340,

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IIt. TATEMENT OF THE CASE

On May 25, 1988, Joseph Trody was arrested and charged with

two counts of burglary and two counts of grand theft after pawning

items taken during two separate burglaries. At the time of his

arrest, Trody indicated to the detectives that he was willing to

talk to them about other burglaries he had committed. The

detectives did not avail themselves of Defendant’s offer to talk.

(Pet. App. 3).

On May 26, 1988, Trody was appointed counsel and signed an

invocation of his right to counsel. In that document, Trody stated

that he "desire[d] to have [his] attorney, the Public Defender,

present before and during any questioning of, interviewing of,

and/or conversations with me by any police official . .. . about

any matters relating to this case or any criminal charge pending or

contemplated." (Pet. App. 11). Later that day, he was charged with

two more burglaries. These new charges resulted from a comparison

of Trody’s fingerprints to those found at the scene of other

burglaries. (Pet. App. 3).

The next day, on May 27, Trody appeared before the Court for

a bond hearing on the new charges. He was again appointed counsel

and again invoked his right to counsel. (Pet. App. 3).

On May 31, 1988, the detectives initiated contact with Trody,

who had remained in jail, and charged him with two additional

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charges of burglary and grand theft. At that time, Trody signed a

waiver of his constitutional rights and told detectives that he had

committed other burglaries. The detectives, however, again chose

not to talk to Trody. (Pet. App. 3).

On June 1, 1988, Trody appeared before the Court on the prior

day’s charges. He again invoked in writing his right to an

attorney. (Pet. App. 3).

On June 2, 1988, despite Trody’s three written invocations of

his right to counsel and his being represented by counsel, the

detectives again initiated contact with Trody in jail. (Pet. App.

3). Trody signed a waiver of his constitutional rights and the

detectives interrogated him. Trody told them about other

burglaries he had committed. The detectives then drove Trody

around the city so that he could point out the locations of these

other burglaries. (Pet. App. 3).

While in jail, Trody neither telephoned the detectives nor in

any way contacted them. Rather, the detectives initiated each

contact with Trody while he was being held in jail. It was not

necessary for the detectives to have contact with Trody in order to

charge him with the additional cases. The arrest forms could have

routinely been left at the jail without the detectives’ having had

direct contact with Trody. (Pet. App. 5).

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As a result of the information he gave to the detectives,

Trody was charged with, and convicted of, nineteen additional

counts of burglary and twenty additional counts of grand theft.

(Pet. App. 4). Trody appealed those thirty-nine convictions and

sentences after his motion to suppress the evidence regarding them

was denied. (Pet. App. 2).

On March 6, 1990, the District Court of Appeal for the Third

District of Florida reversed Trody’s convictions and sentences upon

a holding that the police had improperly initiated interrogation

after Trody’s assertion of his right to counsel. (Pet. App. 2-5).

Accordingly, the waivers procured by the police of fTrody’s

constitutional rights for those police-initiated interrogations

were invalid. In so holding, the Third District Court of Appeal

applied the bright-line rule that was enunciated in Edwards v.

Arizona, 451 U.S. 476, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and

extended to interrogations about unrelated charges in Arizona v.

Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

(Pet. App. 4-5).

The State then unsuccessfully petitioned the Florida Supreme

Court for review. The Court’s denial of the petition was entered

on December 7, 1990. (Pet. App. 1). The State’s petition to the

United States Supreme Court followed.

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IV. SUMMARY OF ARGUMENT

This Court should deny the State of Florida’s Petition for a

Writ of Certiorari to the Florida Supreme Court. Unlike State v.

McNeil, 454 N.W.2d 742 (Wisc. 1990), cert. granted, McNeil v.

Wisconsin, U.S. __, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990), the

District Court of Appeal of Florida correctly held that the

defendant’s invocation of his right to counsel prohibited the

police from thereafter initiating interrogation about unrelated

offenses. In so holding, the District Court of Appeal properly

applied the bright-line rules laid down by this Court in Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981);

Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631

(1986); and Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100

L.Ed.2d 704 (1988). Accordingly, there is no need for this Court

to exercise its discretionary jurisdiction to review the decision

below.

V. ARGUMENT

THIS COURT SHOULD NOT GRANT CERTIORARI

BECAUSE THE DECISION BELOW IS CORRECT.

This Court should decline to exercise its discretionary

jurisdiction to review the decision below, in which the District

Court of Appeal of Florida correctly held that because the

Defendant, Joseph Trody, had invoked his right to counsel, the

waivers of that right which the police secured during police-

initiated interrogation on unrelated charges were invalid. In so

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holding, the District Court of Appeal correctly applied this

Court’s bright-line rule enunciated first in Edwards v. Arizona,

451 U.S. 477, and later extended in Michigan v. Jackson, 475 U.S.

625, and Arizona v. Roberson, 486 U.S. 675.

In Edwards v. Arizona, this Court held 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 showing only that he responded to

further police-initiated custodial interrogation

even if he has been advised of his rights. :

[A]n accused, ... 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.

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85,

68 L.Ed.2d 378, (1981) (emphasis added; footnote omitted).

Then, in Michigan v. Jackson, the Court extended the rule to

the invocation of counsel at arraignment:

{[I]f police initiate interrogation after a

defendant’s assertion, at an arraignment or

similar proceeding, of his right to counsel, any

waiver of the defendant’s right to counsel for

that police-initiated interrogation is invalid.

Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89

L.Ed.2d 631, (1986).

Finally, in Arizona v. Roberson, the Court extended the Edwards

rule to prohibit police-initiated interrogation on unrelated

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charges after a suspect requests counsel. The Court explained its

rationale:

As a matter of law, the presumption raised by a

suspect’s request for counsel -- that he

considers himself unable to deal with the

pressures of custodial interrogation without

legal assistance -- does not disappear simply

because the police have approached the suspect,

still in custody, still without counsel, about a

separate investigation.

Arizona _v. Roberson, 486 U.S. at , 108 §.Ct. at 2099, 100

L.Ed.2d at

Here, the Defendant invoked his right to counsel on three

separate occasions*’, each time he was arraigned on new charges.

Twice, the police initiated contact with the Defendant while in

jail and while represented by counsel, and on the second instance,

obtained from the Defendant the evidence used to charge him with

and convict him of an additional 19 counts of burglary and 20

counts of grand theft. The police simply crossed the bright-line

rule of Roberson and Edwards. Accordingly, the District Court of

Appeal correctly ruled that the evidence thus obtained should have

been suppressed and reversed the judgments of conviction and

sentences based thereon.

The State of Florida argues that this Court should review the

District Court of Appeal’s decision because certiorari has already

i/ Counsel was invoked pursuant to the Sixth and Fourteenth

Amendments to the United States Constitution and Article I,

$$ 9, 12, and 16 of the Florida Constitution. (Pet. App. 11).

Article I, § 9, specifically concerns the right against self-

incrimination. (Pet. at 3).

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been granted in State v. McNeil, 454 N.W.2d 742 (Wisc. 1990), cert.

granted, McNeil v. Wisconsin, U.S. , 111 S.Ct. 340, 112

L.Ed. 305 (1990). However, this Court need not grant certiorari in

this case because, unlike State v. McNeil, the decision below is

correct. See Rule 10.1(b), Rules of the Supreme Court.

First, the Defendant did, in fact, invoke his right against

self-incrimination and, as a result, his Fifth Amendment rights

attached as of May 26, 1988 -- well before the questioning at

issue.

Second, when an accused requests at an arraignment or similar

judicial proceeding that an attorney be present at any police

questioning, the police are _ prohibited from initiating

interrogation on unrelated offenses. Edwards; Roberson. The

Wisconsin Supreme Court in State v. McNeil erroneously concluded

the opposite -- that a request for counsel at an arraignment

invokes only the Sixth Amendment right to counsel, not that of the

Fifth Amendment, and thus does not preclude police-initiated

interrogation on unrelated offenses. State v. McNeil, 454 N.W. 2d

at 743-745. The court in McNeil improperly limited the scope of

Edwards’ application depending upon which constitutional amendment

was expressly invoked by the accused as the basis for his request

for counsel. State v. McNeil, 454 N.W. 2d at 746.

Whether the defendant’s exercise of his right to counsel is

based on the Fifth Amendment or the Sixth Amendment should not make

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a difference in the scope of the application of that right.

Michigan v. Jackson, 478 U.S. at 631, 106 S.Ct. at 1408 (rejecting

argument that differences in legal principles underlying Fifth

Amendment preclude application of Edwards rule to Sixth Amendment

Claim). This Court has repeatedly recognized that there exists a

danger of “subtle compulsion" when a defendant who requests the

assistance of an attorney is nevertheless subjected to further

interrogation initiated by the police while remaining in custody.

Edwards, 451 U.S. 477; Michigan v. Mosley, 423 U.S. 96, 96 S.Ct.

321, 46 L.Ed.2d 313 (1975); Roberson, 486 U.S. 675; Michigan v.

Jackson, 475 U.S. 625.

That danger is present regardless of the particular

constitutional provision the defendant cites as the basis for his

invocation of the right to counsel. As this Court stated so

clearly in Michigan v. Jackson:

Edwards is grounded in the understanding that

‘the assertion of the right to counsel [is] a

significant event,” and that ‘additional

safeguards are necessary when the accused asks

for counsel.’ We conclude that the assertion is

no less significant, and the need for additional

safeguards no less clear, when the request is

made at an arraignment and when the basis for the

Claim is the Sixth Amendment.

476 U.S. at 636, 106 S.Ct. at 1411

Edwards, 451 U.S. at 485, 484, 101 S.Ct. at 1885,

1884).

In contrast to the.State’s argument in its Petition, the reasoning

of Edwards applies with even greater force to requests for counsel

based on the Sixth Amendment, and there is no reason that the

police should be permitted to initiate interrogation on unrelated

offenses after an accused has asserted the right to counsel at an

arraignment or similar proceeding. Michigan v. Jackson, 475 U.S.

at 636, 106 S.Ct. at 1411.

As this Court stated in Roberson, 108 S.Ct. at 2099:

As a matter of law, the presumption raised by a

suspect’s request for counsel -- that he

considers himself unable to deal with the

pressures of custodial interrogation without

legal assistance -- does not disappear simply

because the police have approached the suspect,

still in custody, still without counsel, about a

separate investigation. . .. This discomfort is

precisely the state of mind that Edwards presumes

to persist until the suspect himself initiates

further conversation about the investigation;

unless he otherwise states, there is no reason to

assume that a suspect’s state of mind is in any

way investigation-specific.

Here, the police repeatedly initiated interrogation even though

Trody repeatedly requested that counsel be present at any

questioning. And, Roberson having settled the debate about whether

a request for counsel precludes police-initiated interrogation on

unrelated charges,?/ the District Court of Appeal correctly held

2/ There can be no doubt that this is what Roberson held. See

Butler _v. Aiken, 846 F.2d 255 (4th Cir. 1988) (Edwards

distinguished on the basis that interrogation related to

unrelated crime), on reconsideration, 864 F.2d 24, 25 (1989)

(Butler’s conclusion “cast into immediate and serious doubt”

by Roberson), aff'd sub nom. Butler v. McKellar, U.S. __,

110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (new rule announced in

Roberson not applicable to collateral review); see Illinois v.

, Perkins, U.S. __, __, 110 8.Ct. 2394, 2339, L.Ed.2d

a ~(1990) (“if YTespondent [who was in custody when

questioned] had been formally charged on the unrelated charged

and had invoked his Sixth Amendment right to counsel, he may

have a Sixth Amendment challenge to the admissibility of these

statements”) (Brennan, J., concurring).

that the waiver of the Defendant’s constitutional rights obtained

by the police was ineffective and the evidence obtained in the

improper interrogation should have been suppressed.

Finally, the State of Florida contends that the decision below

should be reviewed because it directly conflicts with Illinois v.

Perkins, __—S6«U«.S. __s,-~ 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990),

which the Stete characterizes as having "disapprove{d] of the

commingling of the Fifth and Sixth Amendment rights to counsel."

Petition for Writ of Certiorari, at 8. Once again, the State has

mischaracterized a case in an effort to demonstrate conflict.

Illinois v. Perkins concerned only the question of whether Miranda

applied to the questioning of an incarcerated suspect by an

undercover agent. There was no request for counsel, either prior

to or during the questioning. Thus, Illinois v. Perkins does not

apply to the decision below, and there is no conflict.

VI. CONCLUSION

For the foregoing reasons, this Court should deny the Petition

for a Writ of Certiorari to the Supreme Court of Florida.

Respectfully submitted,

LAW OFFICES OF THE TEW & GARCIA-PEDROSA

PUBLIC DEFENDER 201 S. Biscayne Boulevard

800 Metro Justice Bldg. Miami Center

1351 N.W. 12th Street Suite 2600

Miami, Florida 33125 Miami, Florida 33131-4336

(305) 536-1112 (305) 536-1112

Kirr been

hristine Stebbins Dahl

Special Assistant Public

Defender

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By: rrr (

Harvey J/ \Sepler

Assista ublic Defender

By:

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F Fr RVICE

I HEREBY CERTIFY that a true and correct of the Respondent’s

Brief was mailed to Robert A. Butterworth, Attorney General, The

Capitol, Tallahassee, Florida 32301; Michael J. Neimand, Esq.,

Assistant Attorney General, and Monique T. Befeler, Assistant

Attorney General, Department of Legal Affairs, Suite N-921, 401

N.W. Second Avenue, Miami, Florida 33128, the day of April,

1991.

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P:\cd\plead\TRODYBRF .CSD

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