# Opposition Brief — Florida v. Trody

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1025%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 1226

## Text

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 “"

Tew & GARCIA-PEDROSA: MIAMi CENTER~- 20! SOUTH BISCAYNE BOULEVARD: MIAMI, FLORIDA 3313!-4336- TEL. (305) 536-1112

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
eae | ee ee a a a ee |

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

ii

Tew & GARCIA-PEDROSA: MiIAM! CENTER. 20! SOUTH BISCAYNE BOULEVARD: MIAMI, FLORIDA 3313!-4336- TEL. (305) 536-1112

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,
ke RG 6 —E a a Pa Pee

U.S. ex rel. Espinoza v. Fairman,
fe Ot we a a ee er ee ee Pe

TI I P ION.
BEC. V, & SUB) (3), FoR. Comet. «. ws weve nevee se
Pais Te Bees Bs Gee IRMAAGcc cc ttt et B

Gree Be @ Be Ba Oe Ob Fees GOOG + 4 te kt hh hh ere eevee eo S

iii

Tew & GARCIA-PEDROSA: MIAMI CENTER: 20! SOUTH BISCAYNE BOULEVARD: MIAMI, FLORIDA 33131-4336. TEL. (305) 536-1112

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

Tew & GARCIA-PEDROSA: MIAM! CENTER. 20! SOUTH BISCAYNE BOULEVARD: MIAMI, FLORIDA 3313!-4336- TEL. (305) 536-1112

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).

ae . £9. ends . 2 eee eee ase nsi MHSasSOe Ass OsrssSes 21GB H 42esesH A4oeen Sasa Gag e448 4646 Bs Casa Bese, 448202 £a@es Ziman see cc

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.

Tew Rm Cavrra.-Prnenei.. MIAMI! CENTER. 2A: EGRLITHW BIGCCAYNE BOLIL EVARD. MIAMI FLORIDA 33131-4336. 7TEL (208) 6836-1112

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

4

Tew & GARCIA-PEDROSA: MIAM! CENTER: 20! SOUTH BISCAYNE BOULEVARD: MIAMI, FLORIDA 3313!-4336:+ TEL. (3085) 536-1112

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

Tew & GARGCIA-PEDROSA: MIAM! CENTER: 20! SOUTH BISCAYNE BOULEVARD: MIAMI. FLORIDA 3313!-4336:+TEL (308) 536-112

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).

6

Tew & GaRCIA-PEDROSA. MiIAMi CENTER. 20! SOUTH BISCAYNE BOULEVARD. MIAM!, FLORIOA 3313!-4336-TEL. (3085) 536-1112

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

Tew & Garora-PEDROSA. MIAM! CENTER. 20! SOUTH BISCAYNE BOULEVARD: MIAMI, FLORIDA 33/3'-4336-TEL (308) 836-112

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

J

1 Eee
By: rrr (

Harvey J/ \Sepler

Assista ublic Defender

By:

Tew & GaRCIA-PEDROSA: MIAM! CENTER. 20! SOUTH BISCAYNE BOULEVARD. MIAMI, FLORIDA 3313!-4336.- TEL. (3085) 536-1112

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.

a

P:\cd\plead\TRODYBRF .CSD

11

Tew & GARCIA-PEDROSA: MIAMI CENTER: 20! SOUTH BISCAYNE BOULEVARD: MIAMI, FLORIDA 3313!-4336- TEL. (308) 536-1112

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1025%3A2. Public record. Not legal advice.