Opposition Brief — Delaware v. Wainwright
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EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
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| OUpIeTt ~0O.1 vy
wenn es FILED
ra 4 |
wb ateuee. SCE Ghis JUL 18 1986
JOSEPH F SPANIOL UR |
No. 85-1928 om
IN THE SUPREME COURT
OF THE UNITED STATES
> y aa
October Term, 1985 (GR >
STATE OF DELAWARE,
o—,
Petitioner,
Vv.
PERCY E. WAINWRIGHT,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF DELAWARE
RESPONDENT'S BRIEF IN OPPOSITION TO THE
PETITION FOR CERTIORARI
NANCY JANE MULLEN, ESQUIRE
Assistant Public Defender
Office of the Public Defender
620 N. French Street
Wilmington, Delaware 19801
Telephone: (302) 571-3230
Attorney for Respondent
TABLE OF CONTENTS
TABLE OF CITATIONS...-seseess Coeeceseres eecscccees
QUESTION PRESENTED FOR REVIEW... .cesesesecescscees
OPINION BELOW...seeeees Co ecceresesescesesseeeeeees
JURISDICTION... ceeecceess eee ercerecesescesseseees
CONSTITUTIONAL PROVISIONS INVOLVED..... Coeeeseeees
STATEMENT OF THE CASE..cccccvcscsesssessessses eeee
REASONS FOR DENYING THE WRIT
1. The State of Delaware has neither
accurately and fully set forth the
facts and the Delaware law pertinent
to the question presented, nor the
relevant details of the decision of
the Delaware Supreme Court below.........
2. The question presented here is
predicated upon an issue of fact
which was resolved against the
State of Delaware by the Delaware
Supreme Court in its decision below......
3. There is no “dilemma” posed for police
as a consequence of the decision of
the Delaware Supreme Court below, and
there is no conflict among the lower
courts with respect to whether police
conduct of the type in issue here
constitutes "interrogation" under
4. The police conduct in issue in the
present case constituted the
*initiation” by police of further
Gialogue with the respondent in
violation of the per ge rule
adopted by this Court in
Edwards vy. Arizons
eee eee eee ere
5. The decision of the Delaware Suprene
Court below is predicated on an
independent ground which is not
implicated by the question
presented PPP rTrTrrrrrrrrrrryryn sen eve
i rrr rr rTrTrrrrrrrrrrrrrerrTrs:
APPENDIX .
Opinion Below. seen eeveeeeeeneeeneeeeeeeeeeeeenweeneene
Transcript of the Suppression Hearing
in the Present CASE. .nccccseccesssecsscsseees
Order of the Delaware Supreme Court
Denying the State's Motion to Remand
the Present CASE... scsccccscscesseessesseseses
Excerpt from the Testimony of Detective
Willard Griffith et the Trial of David
DOGGON. ccccccscesssesessseseseseese eee eee **e
12
13
14
21
A-52
(1986) cccccccccccccesceeeeseeseeseseeeeseeees A~-56é
Vv , Md.Sp.App., -- A.2d --
(1986) ccccccccccccesecececeeesesecceceeeeeess A-65
Page
CASES
, Md.Sp.App., 431 A.24 714
(1981), cert. denied, Md.App., 291 Md.
772 (1961), cert. denied, 456 U.S. 949
PEEP Pe ET PCP NTP eT Or er er Pererrryrrrre 24, 25
, 4th Cir., 656 F.2d 68
(1981), cert. denied, 455 U.S. 952 (1982).... 15
Combs vy. Wingo, 6th Cir., 465 F.24 96 (1972)...... 16
, Pa.Supr., 285 A.24
172 bg FPP rrr rr rr ry rT yer errr rT rTrrrrrrerTr 16
, Pa.Supr., 302 A.24 337
ee | PPP Peo rr errr rrr rr rr rer rrr rT rrr rTr 16
, MA.Sp.App., -- A.24 --
| EPP ETT PPT CLL ee rer rr reer rrrT 24
Dodson v. State, Del.Supr., -- A.2d <= (1986)..... 9, 20
Edwards v. Arizona, 451 U.S. 477 (1981)....eeee00- i, 10-12,
17-18, 21-26
Miranda vy. Arizona, 384 U.S. 436 (1966).....eee0- i, 2-5,
9-11, 14-19,
21-22, 24-25
North Caroline v. Butler, 441 U.S. 369 (1979)..... 11, 25-26
Oregon v. Bradshaw, 462 U.S. 1039 (1983).....6006. 23, 26
, N.Y.App., 482 N.¥.S.24 237
PRETTY Tere errr rer rrr rere oP rr er rere 17
, Colo.Supr., 713 P.24 865
(1985) (en banc), cert. granted, 54 U.8.L.W.
3738 (May 5, 1986) (No. 85-1517) ..ccceceseees 15, 18
, Tll.App., 424 N.E.24 985
(1981), cert. denied, 456 U.S. 993 (1982).... 16
Bhode Island vy. Innis, 446 U.6. 291 (1980)........ 1, 11, 14-26
Boss vy. Moffitt, 417 U.5. 600 (1974) ..cececccccees 12
’ 470 U.s. —s 84 L. 24.24 38
DE Sausasekbedaeecinbetekéasdawidscbsnceci 23
, 469 U.S. --, 83 L.Ed.24 488
eh | Pr Py yr rater rer cr re rrrerrTyrrTrT ee 23
Golem v. Stumes, 465 U.S. 638 (1984).........2000- 23
, Ind.App., 442 N.E..24
1131 el) AEP eT ee ee re err er ere reer re 18
, R.I..6upr., 422 A.2d 913
CBOE 0000 FOO 5000.0 066560066 004 006R 08CbOOde006 15
, Md.6p.App., 498 A.2d 676
CISSD) cc ccececec seco eseeseeseeseeseseceseeccoe 24, 25
State vy. White, Me.Supr., 460 A.24 1071 (1983).... 15
iii
, N.C.Supr., 333 &.E.2d
708 (1985) ccccccccccccccccccccccsececesecece 24
’ 472 U.S. —a 86
L.E.24 356 (1985) wccccccccccccccccscccvesecs 12
, D.Del.,
521 F.Supp. 963 (1981), vacated on
undetermined grounds, 3d Cir., 696 F.2d
980 (1982) wccccccccccccccccccccccssesecccees 17
, D.C.App., 428 A.2d
42 (19B1) cccccccccccccccccccccccccseeseesees 17
, 9th Cir., 669 F.2d
1231 (1981) cccccccccccccccccccccccccceccces 20-21
, 9th Cir., 725 F.2d
1228 (19B4) ccccccccccccccesccccccccscesccees 18
, 24 Cir., 655 F.2d
478 (1982) -ccccccccccccccccecccccccescececes 15
, 9th Cir., 704 F.2d
675 recor eevéessae 18
, D.C. Cir., 672 F.2d
115 et voce onscoes pi 20-21
United States v. Johnson, 268 U.S. 220 (1925).... 13
, Sth Cir., 643 F.2d
323 (1981) ccccccccccvccccccccecessccccccess 15
, 9th Cir., 571 F.2d
455 cle er awees 15
, Del.Supr., 504 A.2d
1096 (1986) ccccccccccccccccsccccvcssccceeccs passim
Wyrick v. Fields, 459 U.S. 42 (1982) ....eeeeeeeee 23
STATUTES
28 U.8.C. Sec. 1257 (3) ccccccccccccccscccscsescecse > 12
Md.Ann.Code, Art. 41, Sec. 16 et seg. (1982).... 3
Delaware Superior Court Criminal Rule 4(c)(3)..... 6
Delaware Superior Court Criminal Rule 5(8).....0.. 7
Delaware Superior Court Criminal Rule 5(b)........ 6
Supreme Court Rule 17(1)..ccececcccvessecesesesees 12
iv
QUESTION PRESENTED FOR REVIEW
Do Rhode Island v. Innis and Edwards v. Arizona prohibit
police from explaining to the suspect, during the booking process,
the nature of the offense with which he is charged and the factual
basis for his arrest?
OPINION BELOW
The opinion of the Supreme Court of Delaware is officially
reported at 504 A.2d 1096 (1986). The slip opinion is appended to
the instant brief at A-1-20.
JURISDICTION
The respondent does not contest the jurisdiction of this Court
under 28 Y.S.C. Sec. 1257(3), to review the question presented.
CONSTITUTIONAL PROVISIONS INVOLVED
The respondent concurs with the recitation of the
constitutional, statutory and rules provisions directly or
indirectly involved in the present case, set forth in the petition.
STATEMENT OF THE CASE
In its Statement of the Case in its petition for review, the
State of Delaware correctly notes that the decision of the Delaware
Supreme Court below involved an application of the principles and
rules articulated by this Court in Miranda v. Arizona, 384 U.S. 436
(1966), Edwards v. Arizona, 451 U.S. 477 (1981), and Rhode Island
v. Innis, 446 U.S. 291 (1980), and their progeny, in its conclusion
that certain statements made by the respondent to police were
obtained in violation of his Fifth Amendment right to counsel
during custodial interrogation. In its petition here, however, the
State -- as it did in the Court below -- has ignored or distorted
several portions of the suppression-hearing record which were
explicitly or implicitly relied upon by the Delaware Court in
support of that conclusion, and which are also important to the
question upon wh ich the State seeks review now. In addition, the
State has similarly ignored or distorted several aspects of the
Delaware Court's decision itself. The respondent here will not
recount in its entirety the record relevant to the suppression
issue decided below nor the full analysis of the Delaware Supreme
Court regarding that issue, but will endeavor to correct the
aforementioned omissions and distortions of the record and of the
lower Court's decision, made by the State in its petition.?
First, the State notes that, after a Delaware murder warrant
was obtained for the respondent in the Hastings homicide based on
the information provided to Delaware State Police by the
co-defendant, David Dodson, the Maryland State Police, “accompanied
by a Delaware officer," arrested the respondent in Baltimore on
November 11, 1982, and the respondent was thereafter held in
Maryland custody for several days before waiving extradition to
return to Delaware. See State's Petition for Certiorari at pp. 5-6.
Like it did below, however, the State has ignored the fact that
Detective Willard Griffith of the Delaware State Police -- the
officer to whom the respondent's challenged statements were made
six days later -- was the "Delaware officer" who accompanied
Maryland police in connection with the respondent's arrest in
Baltimore. (TS-13; A-31). The State -- as it did below -- has
also ignored the fact that, according to the testimony of Detective
Griffith himself, the respondent was advised of the Miranda
warnings by Maryland police following his arrest as a fugitive, and
“didn't want to talk to" the officer. (TS-13; A-31). Hence, the
record here established that Detective Griffith was aware
immediately after the respondent's arrest in Baltimore, that the
respondent wished to exercise his rights under Miranda and did not
line full transcript of the suppression hearing in the instant
case, which was an abbreviated one, is appended hereto at A-21-51.
2
want to give a statement to police regarding the homicide.
Second, the State concedes here -- but did not below -- that
the respondent would have been apprised of the "nature of the crime
with which he (was) charged" in the instant case, in connection
with his arraignment in Maryland as a fugitive, but suggests that
the Delaware Court in its decision below misunderstood the scope of
the information the respondent would have been given. See State's
Petition for Certiorari at p. 6, n. 5. To the contrary, however,
the Delaware Court accurately recited in its decision the
information the Maryland court was required to give to the
respondent under Md.Ann.Code, Art. 41, Sec. 16, et seq. (1982),
upon his arraignment as a fugitive and also in connection with his
subsequent waiver of extradition. See Wainwright v. State, supra,
504 A.2d at 1102. (A-16).
Third, the State has incompletely recounted -- like it did
below -- the events which occurred upon the respondent's return to
Delaware on November 16, 1982, in the company of Detective
Griffith. See State's Petition for Certiorari at pp. 6-8. More
specifically, according again to Detective Griffith's own
testimony, upon their arrival at Delaware State Police Troop #4 in
Georgetown, Delaware, around noon that day, the respondent "was
first taken to the Troop Commander's Office at Troop 4, where he
was advised why he was brought back to Delaware and what he was
being charged with." (TS-6; A-24). Detective Griffith then read
the respondent his Miranda rights by reciting them from his issue
card, to which the respondent replied that "he would like to have
an attorney present or like to have an attorney." (TS-6~-7;
A-24-25). Detective Griffith testified that, at that point, he
“never asked (the respondent) no more questions," and took him to a
nearby room for processing. (TS-7-8; A-25-26). Before processing,
however, there was a further verbal exchange between the officer
and the respondent, reflected in the following testimony:
By Mr. Sandy: Did you, in fact,
tell him at that point what he was being
charged with?
By Detective Griffith: Yes, sir.
Before he was taken to the processing
3
room, he was advised that he was being
charged with first-degree murder of
William Hastings, which occurred
November 3, 1980, and the reason he was
being charged for that murder was from
the statement of co-defendant David
Dodson.
By Mr. Sandy: When you told that
to the defendant, was that in an effort
to question him or was that an
informative speech?
By Detective Griffith: That was an
informative speech. It was part of the
processing.
(TS-8; A-26). In subsequent testimony, Detective Griffith
elaborated that he informed the respondent that Mr. Dodson "had
given a complete statement how him and Mr. Wainwright had gone to
Lord's Packace Store and Mr. Wainwright ended up shooting sr.
Hastings," and that Mr. Dodson “had admitted going to the package
store with Mr. Wainwright, but in his statement he stated that he
had been going to stay outside the package store while Mr.
Wainwright had gone in, and Mr. Wainwright had been the one that
went inside the package store and committed the murder." (TS-1€-17;
A~-34-35). Detective Griffith indicated that he conveyed the
above-outlined information to the respondent within "five or six
minutes" of when the respondent had been advised of the Miranda
warnings and had invoked his right to counsel. (TS-16-17; A-34-35).
There was no indication that the respondent said or did anything
prior to the aforementioned comments of Detective Griffith, which
prompted the officer to convey that information to hin.
Detective Griffith testified that, following the foregoing
exchange, the respondent did not say anything right away. (TS-17;
A-35). He was processed and held at the troop until the magistrate
returned from lunch at 1:00 PM, during which time he was fed.
(TS-8; A-26). At 1:00 PM, he was transported by police vehicle the
short distance to the magistrate court and, as the car pulled up to
the court, Detective Griffith testified, the respondent "turned to
me and stated to me, explained, 'I didn't kill that man.' He said,
‘He Gtabbed me twice.'" (TS-9, 18-19; A-27, 36-37). Detective
Griffith indicated that he thereupon "advised (the respondent) that
since he had elected to have counsel, I could not talk to him about
4
the case." (TS-9, 19; A-27, 37). He testified that the respondent
replied by asking him "if he could retract (that request)." (TS-9,
19; A-27, 37). Detective Griffith testified that he answered by
telling the respondent that "we would go in and call the District
Attorney, John Sandy .. . and also have a defense attorney
present, and then he could tell his story, and if it was true that
he had not pulled the trigger and killed the man, and if it was
determined by (the District Attorney), that he could possibly be
held as a material witness." (TS-9; A-27). Detective Griffith
indicated that they then went into the magistrate court and he
attempted to contact Mr. Sandy by telephone, without success. He
then returned to the respondent, and "(a)t that point I asked hin,
I said, ‘do you wish to tell me what happened?'" The respondent
thereupon orally related his account of what had occurred at the
time of the homicide, indicating, in substance, that Mr. Dodson had
coerced him into driving him to the package store to rob it and to
waiting outside for him while Mr. Dodscn went into the store and,
for undisclosed reasons, shot the clerk during the robbery attempt.
(TS-11-13; A-29-31). No formal written or recorded statement was
obtained. (TS-23; A-41). Detective Griffith testified that he did
not promise or threaten the respondent to make the aforementioned
statement, that the respondent was not under the influence of
alcohol or drugs, and that he appeared in "full control of all his
faculties" at the time of the statement. (TS-10; A-28). He also
testified that, after asking if he could retract his request for an
attorney, the respondent never again mentioned that he did not wish
to talk without counsel present, or to otherwise remain silent.
(TS-10; A-28). There is no indication in the record that the
respondent was readvised of the full Miranda warnings prior to his
statement inside the magistrate court, however. Moreover,
Detective Griffith conceded that he made no effort to contact an
attorney for the respondent before questioning him at the
magistrate court, despite his indication to the respondent that he
would do so. (TS+22; A-40).
In its Petition for Certiorari at p. 7, n. 7, the State admits
that the Delaware Supreme Court in its decision below "expressed
S
Re Ce ae
some skepticism" about Detective Griffith's testimony that he
always informs suspects of the evidence as well as the charges
against them as a "routine" part of the booking process. Indeed,
the Delaware Court expressly rejected that testimony -- and with
good reason. See Wainwright v. State, supra, 504 A.2d at 1102-1103
(A-16-18). Apart from Detective Griffith's aforementioned
testimony -- which was elicited in response to a patentiy leading
question by the trial prosecutor -- there is not one scintilla of
evidence in the record that informing suspects of the evidence
against them is a “routine” aspect of the processing procedures
utilized by the Delaware State Police. Moreover, the several
"facts" asserted by the State in the above-noted footnote to
bolster the testimony of Detective Griffith in that regard -- not
all of which were advanced by the State to the Court below -- are,
at a minimum, misleading.
In the first instance, Delaware Superior Court Criminal Rule
4(c)(3) does not require an arresting officer who does not have the
arrest warrant in his possession, to inform the defendant being
placed under arrest of the evidence upon which the warrant was
issued, but requires only that he “inform the defendant of the
offense charged and of the fact that a warrant has been issued."
In addition, there is no indication in the record here that
Detective Griffith did not have the arrest warrant for the
respondent in his possession when the respondent was processed. *
Hence, it is not clear that the above rule relied upon by the State
now was even applicable to the arrest and processing of the
respondent in the instant case. Furthermore, Delaware Superior
Court Criminal Rule 5/(b), does require that the committing
2Indeed, since Detective Griffith had personally obtained
custody of the respondent from Maryland authorities earlier that
day, it is likely that he did have the warrant in his pessession to
verify his authority to take custody of the respondent thereunder.
Under Rule 4(c) (3), where an arresting officer does have the arrest
warrant in his possession at the time of an arrest, he need only
show the warrant to the defendant ywpon request of the defendant.
The record in the instant case does not reflect any such request by
the respondent. Moreover, as detailed more fully, infra, the
information included in the affidavit for the arrest warrant here,
was far more abbreviated than the information conveyed orally to
the respondent by Detective Griffith during processing.
6
magistrate at the tize of a defendant's initial eppearance on «
warrant, inform the defendant of, dnter elis, “the complaint
egainst his and of any affidavit filed therewith ..." Under
Deleware Superior Court Criminal Rule 5(a), the initial appearance
of a defendant before a magistrate must take place “without
unreasonable deley.” Thus, ea defendant in Delaware is promptly
informed by e neutral and detached zgagistrete of the evidence upon
which his errest was based, and there is no need for police in
processing ea defendant in the inherently coercive atmosphere of e
police station, to likewise relate such information to his.
In addition, the State's assertion that neither the trial
court nor defense counse)] at the suppression hearing expressed
doubt that informing suspects of the evidence against ther is «
“routine” part of the booking process in Delaware, is not entirely
accurate, in that defense counsel izplicitly challenged Detective
Griffith's testizony in that regard in his argument that the
respondent's statement st the magistrate court was induced by the
officer's recitation to the respondent of Mr. Dodson'’s statezent.
(TS-26-26; A-44-46). Moreover, the response -- or lack thereof --
of the trial court and defense counsel to such testizony does not
esteblish -- es the State suggests --that either the court or
counsel credited that testizony from their own experience, and
certeinly does not constitute evidence with respect to the accuracy
of that testizony.
Finally, the State's indication that the Delaware Supreze
Court refused to rezand the present case upon the State's request
in order to supplement the evidentiary record regarding the
foregoing testizony, is likewise not completely sccurate, in that
the State's motion to remand did not expressly raise that issue.
In addition, that motion was denied by the Delaware Court prizerily
because it did not comply with the rules and practice of the Court.
(A-52).
It is also apparent from the totality of the record in the
instant case thet the purportedly benevolent intent of Detective
Griffith with respect to apprising the respondent of the details of
Mr. Dodson’s stetement is, as the Deleware Supreme Court clearly
+
concluded in its decision, unsupported by the evidence. As the
Court observed there snd as the respondent has pointed out here,
Detective Griffith knew following the respondent's arrest six days
eerlier as a fugitive that he did not want to talk to police about
the homicide -- a position which the respondent expressly
reaffirmed directly to the officer upon his return to Delaware.
Detective Griffith also presumably knew that the respondent would
be informed of the charges against him and of the contents of the
eaffidevit in support of the arrest warrant, upon his initiel
eppearance before the Delaware magistrate scheduled for less than
an hour efter the respondent's arrival at Troop #4. In addition,
Detective Griffith, who was an investigating officer in the
Hastings homicide, alzost certainly doubted the veracity of Mr.
Dodson's implication of the respondent as the triggerman in the
homicide, since -~- as the State itself notes in ite Petition for
Certiorari at pp. 4-5 -- Mr. Dodson was the defendant who gatche4
the description of the subject seen by witnesses outside the
package store before the killing and with the gun efter the
killing; Mr. Dodson was the defendant who had obtained the gun fror
Roger Carl Jeffers sometize earlier, albeit in the company of the
cespondent; and Mr. Dodson was an escapee from « Maryland prison at
the time of the homicide.’ Hence, Detective Griffith sust have at
least strongly suspected thet Mr. Dodson had lied to police with
respect to who fired the fatel shot.*
Despite all of the above,
Detective Griffith nevertheless recounted to the respondent the
full details of Mr. Dodson's statement, including the accusation
that the respondent was the actual killer, within "five or six
winutes” of the respondent's request for counsel. Moreover, the
information he conveyed to the respondent et that time was -- as he
3ur, Dodson was serving time in Marylend for gurder -- a fact
which Detective Griffith had to know prior to his c.ntact with the
respondent in issue here, since, as the Stete points out eat p. 5 of
its Petition for Certiorari, Mr. Dodson was transferred froz
Maryland custody before hie own statement to Delaware police was
made.
*at both the respondent's trial and the later trial of Mr.
Dodson, the State contended, in fact, that Mr. Dodson was the
triggerman in the surder.
é
conceded eat the suppression hearing -- fer more comprehensive than
the information included in the affidavit for the errest warrent in
the case, which simply stated, in pertinent part, that, “(o)n
11-11-82, David Dodson did confess to (the Hastings) murder anc
implicated Co-defendant Wainwright in said surder.” (TS-24-26;
A-42-44). In particuler, there vas no sllegation eat all in that
effidevit that the respondent was the triggerzan in the killing.
Yinally, following the respondent's indication to Detective
Griffith outside the magistrate court that he was willing to talk
to the officer, Detective Griffith did not readvise the respondent
of the complete Mirands warnings; did not fulfill his prorise to
secure counsel for the respondent before questioning hin; and led
the respondent to believe that he may be held only as e “sateria)
witness” in the case if his story was credited by the prosecutor.
The factual basis for the Delaware Supreme Court's rejection of
Detective Griffith's testimony that informing the respondent of the
details of Mr. Dodson's statement had a wholly innocent purpose, is
thus substantial.”
Fourth, the State notes that defense counsel at the
suppression hearing conceded that the respondent's brief comments
to Detective Griffith outside the magistrate court, were
“spontaneous.” (T5-26-28; A-44-46). The State also notes that the
triel court concluded, based primarily on that concession, thet
such comments demonstrated a desire on the part of the respondent
to resume Gislogue with police, and further concluded that the
respondent validly waived his previously-invoked rights under
= although not @ matter of record in the instant case, it is
noteworthy that, in his testimony et the later trial of Mr. Dodson,
Detective Griffith defined the ters “processing” upon inquiry of
the same trial prosecutor, es “advising the defendant what he is
being vith, Singerpeiating, Sees erent t taking his
personal history, and also obtein a statezent from the
defendant." (A-53-57). Detective Griffith thus made no mention at
thet time that informing the defendant of the evidence agsinst his
is a “routine” of the booking process. He did make clear,
however, that ining a statement from the defendant ds an
ordinary component of processing. It is also noteworthy that the
Delaware exe Court in a decision issued June 13, 1986, reversed
the convictions of Mr. Dodson for Mirands error as well. See
Dodson vy. State, Del.Supr., ned A.2¢4 om (1966). (A-58-64).
Mirands, prior to his more detailed oral statement to the officer
inside the magistrate court. (TS-28-30; A-46-48). The State
thereafter asserts that the Delaware Supreme Court in its decision
below, “rejected” the above-noted concession of defense counsel at
the suppression hearing and held that all of the respondent's
statements to Detective Griffith were barred under Edwards. See
State's Petition for Certiorari at pp. 9-10. The State has not
wentioned, however, that counsel for the respondent in the Delaware
Supreme Court abandoned the concession of defense counsel at trial
that the respondent's comments outside the magistrate court were
“spontaneous,” and argued that both defense counsel at trial and
the trial court itself failed to consider whether Detective
Griffith's recitation to the respondent of Mr. Dodson's statenzent,
elsost immediately after the respondent had invoked his Mirands
right to counsel, had induced those comments and constituted the
“initiation” by the officer of further conversation with the
respondent in violation of Edwards. Indeed, because of the clearly
@rroneous concession of defense counsel at trial with respect to
the “spontaneity” of those comments, the Delaware Supreme Court was
required to review the respondent's contentions in that Court under
the “"plain-error” standard. See Wainwright v. State, gupre, 504
A.24 at 1099-1101. (A-8-11). Moreover, the Delaware Court's
“rejection” of defense counsel's concession in that regard at
trial, is manifestly supported by the record, for the reasons
outlined gupre.
Fifth, the Stete notes that the respondent testified at trial
in the present case in accord with his statements to Detective
Griffith, and that testimony was rejected by the jury. See State's
Petition tor Certiorari at p. 9. The State fails to note, however,
that the respondent's statements to that officer were the only
evidence introduced in the State's case-in-chief at trial directly
implicating the respondent in the Hastings homicide, and that the
introduction of those statements clearly precipitated the
respondent's testimony at trial. In addition, the State makes no
mention of the fact thet it effectively conceded in the Delaware
Supreme Court that the admission of the respondent's statezents, if
10
error, could not be considered herniess on the record here. ©
Finally, the State asserts that the Delaware Supreme Court in
its decision below "ignored the legitimate non-investigatory
purpose behind informing suspects of the factual cause for their
errest,” and that, as # consequence of its holding there,
"Gisclosure of such information is always prohibited, at least
where the revealed informetion is highly incriminating.” See
State's Petition for Certiorari at p. 10. It is evident, however,
that no such broad rule was enunciated by the Delaware Court or is
implicit in its decision in the instant case. To the contrary,
that decision was carefully limited to the factual record presente4
here, and constitutes simply a straightforward application of the
principles and rules articulated by this Court in Miranda, Edwards
and Innis and their progeny, to that record. It is likewise
epparent that the Court's conclusion that "the defendant's initial
statement to Detective Griffith made outside the Magistrate's Court
was an elicited response to a statement made a policeman which was
reasonably likely to produce such a response,” is manifestly
supported by the overwhelming weight of the evidence, and that,
since Detective Griffith's comments in issue were undisputedly made
efter respondent's invocation of his Mirands right to counsel, the
Court's holding that the first prong of the Edwards test was not
met here, is clearly correct. See Wainwright v. State, supra, 504
A.2Gd at 1103. (A-16-18).
THe respondent also notes that the indication by the State in
its Petition for Certiorari at p. 10, n. 11, that the Delaware
Supreme Court's observation that the waiver prong of Edwards was
likewise not satisfied in the present case with regard to the
respondent's statement inside the magistrate court, was "apparent
dicta,” also misrepresents the decision of the Court below. In
fact, the Delaware Court explicitly held, based on the totality of
the record here, that the aforementioned statement, even if
®as the Delaware Supreme Court observed in its decision,
"“(e)xcept for (the above) statements, the State's evidence against
Wainwright was essentially circumstantial ..." Wainwright v. State,
Supra, 504 A.2d at 1100. (A-10). -
"separately evaluated” from the officer's earlier comments and the
respondent's reaction thereto, did "not gain admissibility under
the existing standards” of waiver enunciated by this Court in North
Carolina v. Butler, 441 U.S. 369 (1979).’ See Wainwright v. State,
gupre, 504 A.2d at 1103-1104. (A-18-19). That conclusion is also
fully supported by the evidence in the present case, and
constitutes an independent ground for the Court's decision below.
REASONS FOR DENYING THE WRIT
I. The State of Delaware has neither
accurately and fully set forth the
facts and the Delaware law pertinent
to the question presented, nor the
relevant details of the decision of
the Delaware Supreme Court below.
Under 286 U.S.C. Sec. 1257(3), this Court's jurisdiction to
review a state-court judgment on certiorari, is discretionary.
Supreme Court Rule 17(1) provides that review on writ of certiorari
“will be granted only when there are important and special reasons
therefor." As the Court observed in Ross v. Moffitt, 417 U.S. 600,
616-617 (1974), its exercise of such discretionary review “depends
on numerous factors other than the perceived correctness of the
judgment (it is) asked to review.” Among those factors, the
respondent submits, should be the candor -- or lack thereof -- with
which the petitioner seeking review presents the facts and the law
relevant to the question presented. See, e.g., Superintendent v.
Hill, 472 U.S. -- , 86 L.Ed.2d 356, 366-369 (1985) (Stevens, J.,
Brennan, 3., and Marshall, J., concurring in part and dissenting in
part) (failure of the Attorney General 41s the State's highest legal
officer to accurately and fully disclose to the Court the state law
pertinent to a question presented, should have resulted in a denial
or dismissal of review).
As detailed in the Statement of the Case, gupra, the State of
Tithe Delaware Court first properly noted that, where the
“initiation” prong of the Edwards test has not been met, there is
no need to address the "waiver" prong of that test. 6ee
v. State, supra, 504 A.2d at 1103. (A-18-19).
12
Delaware in its petition now before this Court, has neither
accurately and fully set forth the facts and the Delaware law
pertinent to the question upon which it seeks review here, nor the
details of the decision of the Delaware Supreme Court below which
are relevant to that question. Under those circumstances, the
respondent submits that this Court should deny review of that
petition.
2. The question presented here is predicated
upon an issue of fact which was resolved
against the State of Delaware by the Delaware
Supreme Court in its decision below.
In connection with the exercise of its discretionary
jurisdiction to grant certiorari review, this Court has long held
that it "(does) not grant a certiorari (writ) to review evidence
and discuss specific facts.” United States v. Johnson, 268 U.S.
220, 227 (1925). In the instant case, though, that is precisely
what this Court would be required to do. More specifically, the
question presented in the State's petition for review is predicated
upon the "fact" that Detective Griffith's recitation of the details
of Mr. Dodson's statement to the respondent, was simply 4 "routine"
part of the booking process used by the Delaware State Police.
That alleged “fact,” however, is not established by the record
here. Indeed, as the respondent pointed out in the Statement of
the Case, supra, Detective Griffith's testimony -- which was whelly
uncorroborated by any other evidence -- that apprising a defendant
of the evidence against him is a “routine” component of the booking
process utilized by that police agency, was clearly rejected by the
Delaware Supreme Court in its decision below, and that conclusion
is manifestly supported by the record. See Wainwright v. state,
gupra, 504 A.2d at 1102-1103. (A-15-18). Compare, United States v.
Hinckley, D.C.Cir., 672 F.24 115, 122-123 (1982) (testimony of
agents that questioning of the defendant “was merely part of
‘standard processing procedures’ and was ‘essentially
administrative,'" was not entitled to credit). Hence, in order to
address the question raised by the State here, this Court would be
required to review -- and, indeed, reverse ~~ the factual
13
conclusion of the Delaware Court in that regard. The respondent
therefore submits that review of the State's petition in the
present case should likewise be denied for that reason.
3. There is no "dilemma" posed for police
as a consequence of the decision of the
Delaware Supreme Court below, and there
is no conflict among the lower courts with
respect to whether police conduct of the
type in issue here constitutes "interrogation"
under Rhode .
In its effort to secure review by this Court of the decision
of the Delaware Supreme Court below, the State in a considerably
confusing and clearly strained analysis, asserts that the Delaware
Court's decision creates a "dilemma" for police regarding whether
they should apprise a defendant in the course of the arrest process
of the charges and evidence against him and risk that such conduct
will be construed as “interrogation” under Rhode Island v. Innis,
Supra, 446 U.S. at 300-301, or should avoid providing such
information to a defendant and thereby call into question the
intelligence of any subsequent waiver by the defendant of his
rights under Miranda. The State further asserts that the lower
courts are in conflict with respect to whether informing a
defendant following an arrest of the charges and evidence against
him, is the type of police conduct that is "normally attendant to
arrest and custody” and therefore "exempt" from the definition of
“interrogation” articulated by this Court in Innis. In order to
resolve the foregoing alleged problems, the State contends that,
"... assuming the legitimacy of a police policy to furnish such
information to all suspects in the arrest process," a
"case-by-case" analysis of the type applied by the Delaware Supreme
Court here regarding whether such conduct constitutes
“interrogation” under Innis, should be rejected in favor of a per
ge rule that such police conduct never constitutes "interrogation"
under that decision when it occurs in the "arrest and booking
context." See State's Petition for Certiorari at pp. 10-18. The
respondent submits, however, that the above-noted assertions of the
State as well as the per ge rule it urges upon the Court here, are
not supported by policy, reason or the case authorities upon which
14
it relies, and review should be denied here on that basis.
In the first instance, it is important to clarify what js not
in issue in the present case as well as what js in issue here.
Specifically, what js not in issue is whether apprising a defendant
in the course of the arrest process of the charges against hir, is
permissible, in that the Delaware Court expressly noted that "it
was Clearly appropriate for Detective Griffith to complete the
formalities of the booking process including, again, advising the
defendant of the charges against him," before taking him to
magistrate court for his initial appearance. Wainwright v. State,
Supra, 504 A.2d at 1103. (A-17). Hence, the decision of the
Delaware Court in the instant case is fully consistent with the
decision of the Colorado Supreme Court in People v. Spring,
Colo.Supr., 713 P.2d 8€5, 872-874 (1985) (en banc), cert. granted,
54 U.S.L.W. 3738 (May 5, 1986) (No. 85-1517), that, "(w)hether, and
to what extent, a suspect has been informed or is aware of the
subject matter of the investigation prior to" a waiver of his
rights under Miranda, is a factor in evaluating the "totality of
the circumstances" with regard to the validity of that waiver. See
also United States v. McCrary, Sth Cir., 643 F.2d 323, 328-320
(1981), and Carter v. Garrison, 4th Cir., 656 F.2d 68, 69-70
(1981), cert. denied, 455 U.S. 952 (1982). In particular, the
decision below poses no "dilemma" for police regarding whether they
can inform a defendant of the charges against him, following his
arrest, to assist him in intelligently deciding if he should
cooperate with police. In addition, that decision is consistent
with the holdings of several other courts which have concluded that
apprising a defendant of the charges against him in connection with
an arrest, does not ordinarily constitute "interrogation" within
the meaning of that term under Innis. See, e.g., United States v.
Gorden, 24 Cir., 655 F.2d 478, 485-486 (1982); State v. Perez,
R.I.Supr., 422 A.2d 913, 915-916 (1960); State v. White, Me.Supr.,
460 A.2d 1017, 1020-1021 (1983). Compare also, United States v.
Wilson, 9th Cir., 571 F.2d 455, 456-457 (1978), a pre-Innis
decision.
What js in issue in the instant case is whether informing a
15
defendant of the evidence against him during the arrest process, is
permissible, in that the Delaware Court also explicitly observed
that, "(i)n going beyond the formalities of the booking process to
describe the State's evidence, particularly the highly
incriminatory accusations of Dodson, Detective Griffith engaged in
a gratuitous and totally unnecessary tactic which was reasonably
calculated to elicit a reaction from the defendant." Wainwright
v. State, supra, 504 A.2d at 1103. (A-17). With respect to that
issue, the respondent first notes that neither Innis nor any other
decision of this Court, or any of the lower court decisions relied
upon by the State in its petition, has expressly or even implicitly
held that apprising a defendant in the course of the arrest and
booking process of the evidence against him, serves any “legitimate
police policy" justifying an "exemption" of such police conduct
from the scope of "interrogation" in all cases, as the State urges
this Court to hold here. Indeed, police practices not amounting to
explicit interrogation which focus -- truthfully or otherwise -- on
impressing upon a defendant the evidence against him, are precisely
the types of "psychological ploys" not-infrequently utilized by
‘authorities to obtain statements, which led this Court in Innis to
conclude that “interrogation” under Miranda could not be limited to
simply “express questioning." See Rhode Island v. Innis, supra,
446 U.S. at 299-300. Indeed, even before this Court clarified the
scope of the term "interrogation" in Innis, the lower courts
generally concluded that confronting a defendant with the evidence
against him, amounted to “interrogation” under Miranda. See, @.g.,
Combs vy. Wingo, 6th Cir., 465 F.2d 96, 97-99 (1972), and its
progeny. See also, Commonwealth v. Hamilton, Pa.Supr., 285 A.2d
172, 174-175 (1972), and Commonwealth v. Mercier, Pa.Supr., 302
A.2d 337, 339-340 (1973). Subsequent to the Court's decision in
FAs pointed out in the Statement of the Case and under
Argument 2, supra, the Delaware Supreme Court in its decision below
rejected the testimony of Detective Griffith that apprising a
defendant of the evidence against him is a "routine" part of the
processing procedure used by the Delaware State Police. For
purposes of the present argument, however, it is assumed that such
police conduct is a “routine” aspect of the booking process
utilized by that agency.
16
Innis, the lower courts have similarly recognized that, in many
instances, such police conduct is "reasonably likely to elicit an
incriminating response from the suspect" of which police should be
aware, and that it is the "functional equivalent" of "express
questioning" in some cases and can thus constitute "interrogation"
under Innis. See, e.g., United States v. Alexander, D.C.App., 428
A.2d 42, 44-52 (1981), and the cases cited therein; United States
ex rel. Abubake v. Redman, D.Del., 521 F.Supp. 963, 972-977 (1981),
vacated on undetermined grounds, 3d Cir., 696 F.2d 980 (1982);
People v. Ferro, N.Y.App., 482 N.Y¥.S.2d 237, 240-241 (1984). In
fact, in United States v. Alexander, supra, 428 A.2d at 44-52 -- a
decision ignored by the State in the Court below and again in its
petition here -- the District of Columbia Court of Appeals
explicitly observed that informing a defendant of the evidence
against him can be a "technique" relied upon by police to evoke an
incriminating response, of the type expressly condemned in Innis.
See Rhode Island v. Innis, gupra, 446 U.S. at 301, n. 7. In
addition, as discussed more fully in Argument 4, infra, such police
conduct can improperly precipitate the "initiation" by a defendant
who has asserted his right to counsel under Miranda, of further
dialogue with police, contrary to the dictates of Edwards v.
Arizona, supra, 451 U.S. at 484-485. Indeed, the State itself
implicitly recognizes the "evocative" character of such
information, in conceding that the holding it seeks from the Court
here should be limited to the detailing of that information only in
the "arrest and booking context." See State's Petition for
Certiorari at p. 14, n. 15. Finally, as the respondent noted in
the Statement of the Case, supra, a defendant -- at least in
Delaware -- is informed of the contents of the affidavit in support
of an arrest warrant by ‘ magistrate within a relatively short time
of his arrest.” Hence, given the "evocative" quality of such
She State in its Petition for Certiorari at p. 17, n. 17,
indicates that "if the reasoning of the court below here stands ...
a disclosure (of the evidence against a defendant) by the
magistrate at the initial appearance would constitute
‘interrogation.'" That assertion is unsupportable, however, in
(Footnote Continued)
17
information and the fact that a defendant will be provided with
that information by a neutral source within a reasonable time of
his arrest, it is difficult to fathom what "legitimate police
policy" is served by the police conduct in issue here.
The respondent also points out that the indication by the
State in its petition for review, that the decision of the Delaware
Supreme Court in the present case deprives a defendant and
ultimately his counsel of information regarding the evidence in the
case which may be helpful to them in deciding whether to cooperate
with police, is wholly disingenuous. Clearly, if a defendant
wishes to have that information, he can simply ask for it. The
Delaware Court did not hold, nor would the respondent argue in this
Court, that providing such information to a defendant ypon his
request constitutes "interrogation" under Innis -- at least not in
20 See, e.g., People v. Thomas,
Ill.App., 424 N.E.2d 985, 988-989 (1981), cert. denied, 456 U.S.
993 (1982); United States v, Guido, 9th Cir., 704 F.2d 675, 677-678
(1983); United States v. Crisco, 9th Cir., 725 F.2d 1228, 1231-1232
(1984). In addition, that Court manifestly did not hold, nor would
the vast majority of cases.
the respondent contend here, that apprising a defendant's counsel
of the evidence -- upon his request or gua sponte -- is
impermissible under Innis. Finally, it cannot be disputed that
detailing the charges against a defendant is far less likely to
precipitate an incriminating response from him, than detailing the
evidence in the case. Hence, the rationale underlying the decision
of the Colorado Court in People v. Spring, gupra, is inapplicable
in the latter instance, contrary to the apparent contention of the
(Footnote Continued)
that, as the State itself agrees, any statements made by ea
magistrate to a defendant during the initial appearance do not
occur in the course of "custodial interrogation." Hence, the
prophylactic rules of Miranda and its progeny are simply not
applicable under such circumstances. See, e.g., State v. McClain,
Ind.App., 442 N.E.2d 1131, 1132-1134 (1982).
10nere a defendant previously invoked his right to counsel
under Miranda, a request by him for information regarding the
evidence in the case would also likely constitute the "initiation"
by him of further dislogue with police under the first prong of the
Edwards test applicable under such circumstances. Certainly, the
Delaware Court below did not hold otherwise. See Argument 4,
A4nfra
18
State.
The respondent further notes that the holding the State urges
upon this Court in the instant case could, in fact, threaten
legitimate law-enforcement interests, and would pose far greater
"dilemmas" for police than the decision of the Delaware Court
below. More specifically, if this Court should conclude that
informing a defendant of the evidence against him is important to
the intelligent exercise of his rights under Miranda, that holdinc
would be applicable in the not-uncommon cases where police do not
want to disclose the evidence in the case, as well as in those
cases where they feel free to do s0. Hence, the police could only
maintain the confidentiality of the evidence at the risk of
providing the defendant with a basis to challenge any subsequent
waiver of his rights under Miranda as "unintelligent." Moreover, a
"dilemma" would clearly arise in many cases regarding vidence
must be disclosed to assist the defendant in intelligently deciding
whether to cooperate with police. All of the evidence gathered by
police? Just the "principal" evidence? And what about exculpatory
evidence, such as existed but was not disclosed to the defendant in
the present case? Manifestly, those "dilemmas" are much more
troublesome than the alleged "dilemma" created under the Delaware
Court's decision, of whether any evidence should have been
disclosed at all under the circumstances in issue here.
In addition, the respondent notes that where, as frequently
occurs, the arresting and/or booking officer is not an
investigating officer in the case, he is generally unfamiliar
himself with the evidence underlying an arrest warrant, and is
therefore hardly able to provide that information to the defendant.
Thus, informing a defendant of the evidence against him simply
cannot be a "routine" part of processing in every case.
The respondent also observes that the State does not deny here
that, in many instances, police should and do know that informing a
defendant of the evidence against him is, in fact, "reasonably
likely to elicit an incriminating response" from him, within the
meaning of Innis. The State apparently contends, however, that the
"evocative" character of such information is irrelevant, so long as
19
it is provided to the defendant only in the course of the arrest
and booking process. It is clear, however, that in exempting
“words or actions on the part of the police" which are “normally
attendant to arrest and custody" from the scope of "interrogation"
under Innis, this Court contemplated that such words or actions
would ordinarily be non-"“evocative" in quality.?? Certainly, this
Court did not intend to permit police to insulate their conduct --
regardless of how “evocative” it might be -- from scrutiny under
that decision, by simply affixing the labe) “routine processing" tc
it. Indeed, as the Court held in United States v. Hinckley, supra,
672 F.2d at 122-126, -- a decision also ignored by the State below
and here -- even words or actions on the part of police which
generally are merely part of the arrest and booking process,
constitute “interrogation” under Innis, if police should know they
are likely to elicit an incriminating response. Finally, where, as
in Delaware, a purpose of the "booking process" is to obtain a
statement from a defendant, ?? it would be particularly
inappropriate to exempt the conduct of police in connection with
such process from the scope of "interrogation" under Innis.
Lastly, the respondent points out that this Court in Innis
made clear that the determination of whether the words or actions
of police amounted to “interrogation,” requires an examination of
all the relevant circumstances, including both the conduct of
police itself and the perception as well as susceptibilities of the
defendant. See Rhode Island v. Innis, gupra, 446 U.S. at 300-302.
Hence, euch determination must necessarily be made on a
"case-by-case basis," as even the Ninth Circuit -- upon which the
State has relied so heavily here -- has held. See United States v.
11,5 the District of Columbia Circuit observed in United
States v. Hinckley, gupra, 672 F.2d at 122-123, in most
jurisdictions, "(t)he standard booking process is ‘a predominately
clerical procedure, performed immediately or soon after the suspect
is delivered to the precinct or district station;' its primary
function is ‘recordkeeping.'" Clearly, the words or actions of
police in connection with that type of activity, as well as other
common »stodial activities, are what this Court considered in
Innis . ve “normally attendant to arrest and custody."
12 S60 A-54, and Dodson v. State, supra, -- A.2d at --, (slip
opinion at p. 3 n. 3). (A-60).
20
== eer ‘ aa
.
Booth, 9th Cir., 669 F.2d 1231, 1237-1238 (1982) .27 The
"case-by-case" approach employed by the Delaware Supreme Court in
its decision below, is thus fully consistent with -- and, indeed,
mandated by -- this Court's holding in Innis, and is also in accord
with the approach utilized by the other lower courts in making such
determinations. In fact, none of the cases relied upon by the
State hold that informing a defendant of the evidence against him
-- or, for that matter, any other words or actions of police -- is
police conduct which is exempt jn every instance from the scope of
“interrogation” under Innis. In addition, all of the cases cited
by the State in which apprising the defendant of such information
was determined to not constitute “interrogation,” are
Gistinguishable on their facts from the present case. Hence, the
alleged “conflict” the State has asserted exists among the lower
courts regarding the permissibility of such police conduct under
innis, is wholly illusory.
~
.
The police conduct in issue in the present
case constituted the "initiation" by police
of further dialogue with the respondent in
violation of the per ge rule adopted by this
Court in Edwards y. Arizona.
In the Delaware Supreme Court, the respondent principally
contended that Detective Griffith's conduct in reciting to the
respondent the details of Mr. Dodson's statement, after the
respondent's invocation of his right to counsel under Miranda,
é, constituted the improper “initiation” by the officer of further
1375, Booth -- yet another decision ignored by the State in the
instant case -- the Court also explicitly recognized in the context
of "express questioning” of a purportedly “routine” character, "the
potential for abuse by law enforcement officers who might, under
the guise of seeking ‘objective’ or ‘neutral’ information,
Geliberately elicit an incriminating statement from a suspect," and
therefore emphasized that "the ultimate test for whether
questioning constitutes interrogation is whether, in light of all
the circumstances, the police should have known that a question was
reasonably likely to elicit an incriminating response." Id. at
1238. That analysis is fully in accord with the similar
observations and conclusions of the District of Columbia Circuit in
United States v. Hinckley, supra, 672 F.2d at 122-126, pointed out
by the respondent before. The respondent submits that that
analysis is also applicable where police provide information to a
defendant they should know is likely to elicit an incriminating
response.
21
dialogue with the respondent regarding the case, in violation of
the per se rule adopted by this Court in Edwards v. Arizona, gupre,
451 U.S. at 484-485. Although the respondent additionally argued
that such conduct also amounted to "interrogation" under the
definition of that term articulated by the Court in Rhode island ~
innis, supra, 446 U.S. at 300-301, the respondent noted to the
Delaware Court that it did not need to reach that question, if it
agreed with his foregoing primary argument. The State, however,
contended to that Court that police do not violate the rule in
Edwards by continuing conversation about the case with a defendant
who has requested counsel, unless nets conduct does amount to
“interrogation” under Innis. In its decision below, the Delaware
Supreme Court did not undertake to resolve the question of whether
‘police conduct not amounting to "interrogation" can constitute the
improper "initiation" by police of further dialogue with a
defendant who has asserted his Miranda right to counsel, nor has
the State presented that question in its petition for review here.
Instead, the Delaware Court held that the conduct of Detective
Griffith gid amount to "interrogation" on the totality of the
record in the present case, and that the "initiation" prong of the
Edwards test had thus not been met here. See Wainwright v. State,
supra, 504 A.2d at 1101-1103. (A-17-18).
In its petition now before this Court, the State -- ina
somewhat less-than-explicit fashion -- has essentially reiterated
its position in the Court below, that no violation of Edwards
arises unless police "interrogate" a defendant who has invoked his
Miranda right to counsel. The State in its discussion of the
question presented here, has thus made no distinction betwee.: cases
in which the Edwards rule |is applicable and those in which it is
not. The respondent likewise reiterates his position advanced
below, however, that the question of whether police conduct amounts
to "interrogatién,” need not be reached, if such conduct
constitutes the improper "initiation" by police of further dialogue |
regarding the case with a defendant who has requested counsel,
contrary to the dictates of Edwards.
The respondent notes that this Court in Edwards and its
22
several subsequent decisions clarifying and applying the rule
articulated in that decision, has never held that police conduct
‘must amount to "interrogation" before an Edwards violation occurs.
f
In Edwards itself, the Court spoke in broad terms of
“communication, exchanges or conversations" as well as simply
"dialogue," in its discussion of the concept of “initiation” there.
See Edwards v. Arizona, gupra, 451 U.S. at 484-485 and 486, n. 9.
Moreover, in Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983), the
Court made clear that the terms "interrogation" under Innis and
“initiation” under Edwards are not synonymous, indicating with
respect to the latter term that “initiation” occurs where any
inquiries or statements by a defendant or a police officer tend to
"open up a more generalized discussion relating directly or
indirectly to the investigation." In Bradshaw, the Court added
that inquiries or statements by a defendant or an officer “relating
to routine incidents of the custodial relationship, will not
generally ‘initiate’ a conversation in the sense in which that word
is used in Edwards." Jbid. See also Edwards v. Arizona, supra, 451
U.S. at 490 (Powell, J., concurring) ("...police do not
impermissibly ‘initiate' renewed interrogation by engaging in
routine conversations with suspects about unrelated matters").
(Emphasis supplied). Cf., Rhode Jsland v. Innis, supra, 446 U.S.
at 300-301, and Argument 3, gupre, regarding the definition of
“interrogation” enunciated there. In addition, the Court has
emphasized that the Edwards ruie is a “prophylactic rule, designed
to protect an accused in police custody from being badgered by
police officers in the manner in which the defendant in Edwards
was." Oregon v. Bradshaw, supra, 462 U.S. at 1044. See also Soler
vy. Stumes, 465 U.S. 638, 646-647 (1984); Smith v. Illinois, 469
U.S. --, 83 L.Ed.2d 488, 493-494 (1984); ad Shea v. Louisiana, 470
U.S. --, 64 L.Ed.2d 38, 43-44 (1985). Hence, the rule in Edwards
affords a defendant the "right to be free of contact with
authorities in the absence of an attorney,” apart from simply
routine custodial matters, as well as the "right to be free of
Anterrogation” regarding the crime charged. Wyrick vy. Fields, 459
U.S. 42, 47 (1982) (emphasis supplied). The concept of
23
"initiation" under Edwards is thus significantly broader that the
concept of “interrogation” under Innig, contrary to the contention
of the State in the Court below and in its argument here.
The respondent notes that, where the Edwards rule has been
applicable, police-initiated statements or actions focusing on the
evidence against the defendant, has apparently occurred only rarely
-- an indication in itself that, in the view of most police
officers, such conduct would be violative of Edwards. In the very
few reported decisions in which it did occur, however, other than
the decision of the Delaware Supreme Court in the instant case, the
courts have uniformly held that such conduct constitutes a
violation of the rule in Edwards, without expressly finding that it
amounted to "interrogation" under Innis. See Bryant v. State,
Md.Sp.App., 431 A.2d 714, 717-720 (1981), cert. denied, Md.App.,
291 Md. 772 (1981), cert. denied, 456 U.S. 949 (1982); State v.
Quinn, Md.Sp.App., 498 A.2d 676, 677-679 (1985); Vv v ‘eo,
Md.Sp.App., -- A.2d -- (1986) (slip opinion at pp. 3-7).24
(A-65-72).
As the Maryland Court observed in Bryant v. State, supra, 431
A.2d at 718 -- a decision not even mentioned by the State in the
present case, even though this Court denied the State of Maryland's
petition for review there -- once a defendent has invoked his right
to counsel under Miranda, “any attempt by the authorities to
‘spark’ the accused's ‘own initiative'" in resuming dialogue with
police regarding the case, will "contaminate" any subsequent waiver
1475 the only decision which has been relied upon by the State
here or has come to the attention of the respondent's counsel that
is arguably to the contrary, the North Carolina Supreme Court in
, N.C.Supr., 333 &§.E.2d 708, 717 (1985), held that
providing the defendant who had requested counsel there with a copy
of the inventory form relating to the search which was conducted,
did not constitute the "initiation" by the officer of further
conversation with the defendant in violation of Edwards. There,
however, the Court emphasized that delivery of a search inventory
form to a defendant is "routine" and, indeed, mandated by North
Carolina law, and there were no surrounding circumstances which
suggested that the officer's conduct was calculated to or likely to
precipitate a response from the defendant. In addition, an
inventory form of the type in issue in Williams, is clearly far
less "evocative" in character than the incriminating statement of a
co-defendant. Williams is thus distinguishable on its facts from
the type of police conduct in issue in the above-noted cases and
here.
24
by him of that right and render such waiver "a nullity” under
Edwards. As the Court in Bryant additionally observed, in making
clear to the defendant who had asserted his right to counsel there
that his confederates were cooperating with police, the officer
“was endeavoring to cause Bryant to retreat from the Miranda
fortress and to surrender his will to the officer because the
battle was lost anyhow. It is precisely that type of ‘persuasion, '
duress, coercion, or intimidation that is forbidden by Miranda and
Edwards." Jd. at 720. Moreover, as that Court noted in State v.
Quinn, supra, 498 A.2d at 678-679, the fact that providing a
defendant with a copy of the statements of his accomplices may be
the "normal practice" of an officer, does not insulate such conduct
from the reach of Edwards, where the defendant has requested
counsel.
In its decision in the present case, the Delaware Supreme
Court expressly relied in part on the observations and conclusions
of the Maryland Court in Bryant and Quinn, and the Delaware Court's
decision is wholly consistent with those decisions in light of the
record here. See Wainwright v. State, supra, 504 A.2d at 1103.
(A-15-18). More importantly, the decisions of the Maryland Court
there and the Delaware Court below are manifestly in accord with
the rationale and rule of this Court's decisions in Edwards and its
progeny. For that reason, there is no need for this Court to even
address the question presented by the State in its Petition for
Certiorari, and review should be denied on that ground.
5. The decision of the Delaware Supreme Court
below is predicated on an independent
ground which is not implicated by the
question presented here.
As noted in the Statement of the Case, gupra, the Delaware
Supreme Court in its decision below held that, even if the conduct
of Detective Griffith which gave rise to the Innis/Edwards issue
involved in the question presented here, was not impermissible, the
respondent's alleged waiver of his Miranda rights prior to his most
damaging statement to that officer inside the magistrate court, did
not meet the standards for waiver enunciated by this Court in North
25
Carolina v. Butler, gupra, 441 U.S. at 373, on the totality of the
record in the instant case, and the "waiver" prong of the Edwards
test was therefore also not satisfied here. See Edwards v.
Arizona, supra, 451 U.S. at 486, n. 9, and Oregon v. Bradshaw,
supra, 462 U.S. at 1044-1045. Hence, that decision is predicated
on an independent ground which is not implicated by the question
before this Court now, and review should be denied for that reason.
CONCLUSION
For the preceding reasons, the respondent respectfully submits
that this Court should decline to grant review of the petition of
the State of Delaware in the present case.
Respectfully submitted,
tite aoe
NANCY JANE MULLEN, ESQUIRE =
Assistant Public Defender
Office of the Public Defender
Carvel State Office Building
820 N. French Street
Wilmington, Delaware 19801
26
IN THE SUPREME COURT OF THE STATE OF DELAWARE
PERCY EWELL WAINWRIGHT, §
&
Defendant Below, iS
Appellant, § No. 365, 1983
«
+, § Court Below: Superior Court
§ of the State of Delaware in
STATE OF DELAWARE, § and for Sussex County
Ԥ Cr.A. Nos. S82-11-0061,
Plaintiff Below, § 1061 and 2061
Appellee, §
Scbeittec: Octobcr 29, 19€5
Decidea: February 21, 1986
Before CHRISTIE, Chief Justice, MCNEILLY, HORSEY, MOORE
and WALSH, Justices, constituting the Court en banc.
Upon appeal from Superior Court. REVERSED and REMANDED
for a New Trial.
Nancy Jane Mullen, Esquire, Assistant Public Defender,
Wilmington. Attorney for Appellant.
Gary A. Myers, Esquire, Deputy Attorney General,
Department of Justice, Georgetown. Attorney for Appellee.
WALSH, Justice:
The defendant, Percy Ewell Wainwright, was convicted
following a jury trial in Sussex County of first degree
felony murder, 11 Del. C. $636(a)(6), and possession of
a deadly weapon during the commission of a felony. The
State declined, during trial, to seek the death penalty,
and the defendant was sentenced to life imprisonment without
probation or parole on the murder charge with a consecutive
fifteen year sentence on the weapons charge. The charges
stemmed from his participation in the November 3, 1980,
attempted robbery of a Bridoeville liquor store and the
killing of a store clerk. A codefendant, David Wayne Dodson,
was convicted of the same offenses in a separate trial
and sentenced to life imprisonment after a jury declined
to impose the death penalty.
Although the defendant assigns a number of errors
alleged to have occurred at the trial level, we focus on
but one. He argues that certain oral statements were
obtained by the police in violation of his Fifth Amendment
right to counsel under Miranda v. Arizona, 384 U.S. 436
(1955). Since we conclude that it was plain error to deny
suppression of such statements we must reverse and remand
for a new trial.
I
The factual record underlying the admissibility of
the disputed statemexts is drawn from the suppression hearing
at which the only witness was Detective Griffith of the
Delaware State Police. The defendant did not testify at
the suppression hearing.
There were no eyewitnesses to the shooting of the
liquor store clerk, and no identifiable fingerprints were
recovered from the scene of the crime. However, police
investigation led to the arrest of David Dodson on November
11, 1982, for the murder. Dodson told the police that
he and the defendant were present at the time the clerk
was shot, but that the defendant went into the liquor store
to rob it ene shot the clerk while Dodso:r remeinec cuts:ce.
Based on Dodson's statement, a fugitive warrant was issued
and the defendant was arrested at his residence in Maryland
on the same day. Detective Griffith accompanied a Maryland
State Police detective when the warrant was executed.
The Maryland officer read the defendant his Miranda rights
and advised Wainwright about the warrant on file in Delaware
for first degree murder but the defendant declined to give
a statement to Griffith.
The defendant waived extradition and was brought back
to Delaware on November 16, 1982. On the morning of November
16, when Detectives Griffith and Lee of the Delaware State
Police went to Anne Arundel County Prison to pick up the
Gefendant and transport him to Delaware, the Delaware detec-
tives did not read the Miranda rights to the defendant.
The detectives simply transported the defendant in silence
to the Delaware State Police Barracks in Georgetown.
Upon arrival at the Barracks in Georgetown, the
defendant was first taken to the Troop Commander's Office
where he was advised “why he was brought back to Delaware
and what he was being charged with.” Detective Griffith
read the Miranda rights to the defendant from a card issued
to the state police. In response, the defendant stated
that he would like to have an attorney present. At that
point, Detective Griffith stopped questioning the deferndent
ana took him to the processing roonr. Detective Grasfath
testified that before the defendant was taken to the
processing room, however, he advised the defendant that
he was being charged with “murder one of Mr. William Hastings
at Bridgeville, Delaware," and that the reason he was being
chargecé was that codefendant David Wayne Dodson had given
a complete statement describing how he and Wainwright had
gone to Lord's Package Store where Wainwright shot Hastings.
Detective Griffith described the exchange as follows:
Q- And you told him the substance of what
David Dodson had said?
A. Yes, sir.
Q. What was that?
A. That Mr. Dodson had admitted going to
the package store with Mr. Wainwright, but in
his statement he had stated that he had been
going to stay outside the package store while
Mr. Wainwright had gone in, and Mr. Wainwright
-3-
had been the one that went inside the package
store and committed the murder.
Q. So within five or ten minutes after
this man said he wanted an attorney, you were
telling him what David Dodson had said?
A. I was advising him why he was brought
back to Delaware and what he was being charged
with.
Q. And you were telling him the substance
of the statement that the police got from Dodson?
A. Yes, &gir.
@. What was his response to this?
*. There was no response.
After fangerpranting, the defendant was given lunch
and placed in a cell. No conversation took place during
lunch. At about 1:00 p.m., Detective Griffith took the
defendant to the Magistrate Court, located approximately
three hundred yards from the police station. Detective
Griffith testified that as he pulled up to the Magistrate
Court the defendant turned to him and said: "I didn't
kill that man, he stabbed me twice.” At that point, Griffith
advised the defendant that since he had elected to have
counsel, the detective could not talk to him about the
case. The defendant then asked Griffith if he could retract
his request for counsel, and Griffith told the defendant
that he would call the “District Attorney” and have a defense
attorney present, and then the defendant could tell his
story. Griffith next told the defendant that if he had
not pulled the trigger and killed the man, he might be
held as a material witness.
Detective Griffith unsuccessfully attempted to reach
a deputy attorney general but did not attempt to reach
a defense attcrney. Immediately after talking with the
deputy attorney general's secretary, Detective Griffith
asked the defendant whether he wanted to make a statement
or tell the detective what happened. The defendant then
made a statement in which he confessed to driving his pickup
truck thrceugh Bridgeville on the night of the murder, but
maintainec that Dodson stabbed him after he refused toe
stop the truck. The defendant finally stopped the truck,
and Dodson got out of the truck with a twelve-gauge shotgun.
Wainwright waited and a short time later Dodson returned
and told the defendant to "get out of here.”
At the suppression hearing, defense counsel did not
contest the admissibility of the first statement made by
the defendant. Defense counsel conceded that “[cJertainly
the officer cannot be expected to control spontaneous
statements." Instead, defense counsel challenged the ad-
missibility of the defendant's second statement as a viola-
tion of the defendant's right to counsel under Miranda.
At the suppression hearing the prosecutor, citing
Oregon v. Bradshaw, U.S. e 103 S.Ct. 2830 (1983) argued
that the defendant's statement as he arrived at the
Magistrate Court was, itself, initiation of further
communication with the police, and the defendant's subsequent
statement that "I don't want an attorney now" was a valid
waiver of his right to counsel under Miranda, after which
1
he willingly gave a statement. Defense counsel did not
effectively rebut this argument, and the trial judge, after
a recitation of the facts as he understood them, concluded
that:
The only thing that the State has
to show is that the defendant was warned
of his constitutional rights, that
he understood them, and that he waived
them. It is clear thet he understood
them from the fact that he exercised
them the first time, and it is further
clear that he wanted to waive them
by the fact that he asked to waive
them.
In this particular case, it is
clear that he understood them and that
he exercised them, and according to
the testimony of Officer Griffith,
he wanted to initiate a further
conversation and withdraw the exercise
of that right and wanted to make a
statement.... I cannot say that giving
him lunch, informing him of the evidence,
and bringing him to the Justice of
the Peace Court was such overbearing
tactics by the police that he was not
exercising in (sic) free will....
Because defendant's trial counsel conceded that the
Gefendant's first statement was spontaneous, the trial
judge focused only on the waiver aspect of the question
of admissibility and ruled, in effect, that defendant's
@esire to waive his previously invoked right to counsel
was established by his own words.
11
As a threshold consideration we must confront the
qvestion of whether the scope of our review may extend
to claimed error which was not raised at the trial level.
Indeed, the State contends that the concession of partial
admissibility by defense counsel not only misled the trial
court but now requires this Court to rule upon a question
riot fairly raised on the trial record.
This Court, in the exercise of its appellate authority,
will generally decline to review contentions not raised
below and not fairly presented to the trial court for
decision. Supreme Court Rule 8; Jenkins v. State, Del.
Supr., 305 A.2d 610 (1973). On evidentiary issues, ‘wens
general rule is that evidentiary questions may not be raised
for the first time on appeal. Stevenson v. Henning, Del.
Supr., 268 A.2d 872 (1970). Thus, failure to object to
the admissibility of evidence in the trial court may preclude
a party from raising the objection for the first time on
appeal. See Young v. State, Del. Supr., 431 A.2d 1252
(1980); Rochester v. Katalan, Del. Supr., 320 A.2d 704
(1974); Del. R. Evid. 103.
To expedite finality and promote economy in litigation,
Rule 103 of the Delaware Rules of Evidence requires the
parties to raise timely objections tc. evidence in the trial
court or risk losing the right to raise evidentiary issues
on appeal. Failure to make an objection at trial constitutes
@ waiver of the defendant's right to raise that issue on
appeal, unless the error is plain. Goddard v. State, Del.
Supr., 362 A.2d 238 (1977). Rule 103 allows the appellate
court to take notice of "plain errors affecting substantia)
rights” of the parties on appeal, even though the error
was not brought to the attention of the trial court. See
Del. R. Evié. 103(d).
Undc> the plais. error stéerderd of reviev, the errc:
complained of must be s0 clearly prejudicial to substantial
rights as to jeopardize the fairness and integrity of the
trial process. Dutton v. State, Del. Supr., 452 A.2d 127,
146 (1962). Furthermore, the doctrine of plain error is
limited to material defects which are apparent on the face
of the record, which are basic, serious, and fundamental
in their character, and which clearly deprive an accused
of a substantial right, or which clearly show manifest
injustice. Brownwell v. State, Del. Supr., 427 A.2d 884,
693 nn. 12. Recently, claims of error implicating basic
constitutional rights of a defendant have been accorded
review by this Court notwithstanding their nonassertion
at trial. Deputy v. State, Del. Supr., 500 A.2d 5861, 589
(1985); Flamer _v. State, Del. Supr., 490 A.2d 104, 112
(1983).
The significance of the trial judge's ruling on the
admissibility of the defendant's statements to Detective
Griffith is obvious. Except for these statements, the
State’s evidence against Wainwright was essentially circur-
stantial, since Dodson, called as a witness by the defense,
refused to testify on grounds of self-incrimination. It
is equally clear that the question of the admissibility
of Wainwright's statements was one of constitutioréel
Gimension. The U.S. Supreme Court's recent decisio‘s
in Edwards v. Arizona, 451 U.S. 471 (1961) and Oregon v.
Bradshaw, ___U.S.__» 103 S.Ct. 2830 (19863) make it clear
that once an accused has exercised his right to remain
silent under Miranda, the determination of whether subsequent
statements are admissible is based on a two-part test.
For such statements to be admissible, the prosecution must
establish that the accused initiated further contact with
the police, and validly waived his previously invoked right
to counsel. The first part of the Edwards test — the
initiation of further communication by the accused —
must be considered before proceeding to decide whether
there was a valid waiver. Edwards, 451 U.S. at 485;
Bradshaw, 103 S.Ct. at 2834.
A vo
In this case, defense counsel's concession that the
Gefendant’s first statement was “spontaneous” probably
caused the trial judge to focus only wpon the “waiver”
part of the Edwards test. Although the prosecutor, in
arguing for the admissibility of the statements, properly
noted that the Bradshaw decision discussed the importance
of determining which party initiated further conversation
after the accused had invoked his right to counsel, the
trial judge ruled that “[t]Jhe only thing that the State
has to show is that the defendant was warned of his constitu-
tional richts, that he understood ther, ané that he weivec
them.” Since this statement reflects an incomplete analysis
of the proper test to determine whether both of the
defendant's statements should have been admitted into evi-
Gence, this error is clearly prejudicial to substantial
constitutional rights of the defendant and jeopardized
the fairness of the trial process. Where there is plain
error, the fact that the error may have been “invited”
by the actions of defense counsel does not render it lees
significant or result in a forfeiture of appellate review.
See State v. Harper, N.J. Super. App. Div., 319 A.2d 771,
cert. denied, 65 N.J. 574, 325 A.2d 708 (1974); cert. denied,
68 N.J. 2864, 344 A.2d 318 (1975).
III
Our review of the record requires that we examine
the evidence presented by the State at the suppression
-10-
A-t
hearing in the light of the State's heavy burden of
demonstrating the voluntary relinguishment by a defendant
of his previously asserted request for counsel. We begin
with the language of Miranda:
Once warnings have been given,
the subsequent procedure is clear.
If the individual indicates in any
manner, at any time prior to or during
guestioning, that he wishes to remain
silent, the interrogation must cease.
If the individual states that he wants
én attorney, the interrogation must
cease until an attorney is present.
* . * *
If the interrogation continues
without the presence of an attorney
and a statement is taken, a heavy burden
rests on the government to demonstrate
that the defendant knowingly and
intelligently waived his privilege
against self-incrimination and his
right to retained or appointed counsel.
Miranda, 364 U.S. at 473-75.
In Edwards the Supreme Court established a bright-line
rule for determining compliance with Miranda. This rule
was further clarified in Smith v. Illinois, .8:.
105 §.ct. 490 (1984). In Edwards, the court established
@ “rigid prophylactic rule” that once an accused in custody
expresses a desire to deal with the police only through
counsel, he “is not subject to further interrogation by
the authorities until counsel has been made available to
him” unless there is a valid waiver of his request for
counsel. Edwards, 451 U.S. at 485-86; Smith, 105 S.Ct.
-ll-
at 492. In Edwards and Smith the Supreme Court clearly,
outlined the analysis which this bright-line rule
establishes.
First, courts must determine whether
the accused actually invoked his right
to counsel. Second, if the accused
invoked his right to counsel, courts
may admit his responses to further
guestioning only on finding that he
(a) initiated further discussions with
the police, and (b) knowingly and in-
telligently waived the right he had
invoked.
Smith, 105 S.Ct. at 493. The purpose of the Edwards rule
is to prevent police badoerino or overreéchine in ér effort
to wear down the accused despite his request for counsel.
Smith, 105 S.Ct. at 494.
The Edwards standard has not proved to be easy in
application and, as the divergence of opinions in Bradshaw
attest, is open to varying interpretations. The plurality
in Bradshaw confirmed Edwards as holding that once the
right to counsel has been asserted by an accused, no further
interrogation should take place “unless the accused himself
initiates further communications.” 103 S.Ct. at 2834.
Justice Powell, in a concurring opinion, opined that the
only new element in Edwards was the emphasis on the prosecu-
tion's burden of proof where “the critical question of
waiver focuses on whether the initial communication by
the police was proper.” 103 S.Ct. at 2838 n. 2.
-12-
2
Fon ad
In his dissenting opinion in Bradshaw, Justice Marshall
claimed that eight Justices cf the Court “manifestly agree"
that Edwards created a per se rule.
* ¢f
The rule is simply stated: unless
the accused himself initiates further
communication with the police, a valid
waiver of the right to counsel cannot
be established. If an accused has
himself initiated further communication
with the police, it is still necessary
to establish as a separate matter the
existence of a knowing and intelligent
waiver under Johnson v. Zerbst, 304
0.8. 6568, 464, S68 S.Ct. 2023; 1023,
62 L.Ed. 1461 (1938). The only Gcispute
betweer the plurality anc the cGissent
in this case concerns the meaning of
‘initiation’ for purposes of Edwards’
per se rule.
103 S.Ct. at 2840 n.2.
Whatever nuances may lurk in Edwards, as interpreted
by Bradshaw, for present purposes the controlling principle
is clear: If the police initiate further questioning after
an accused requests the presence of counsel, resulting
statements are excludable apart from the issue of waiver.
Here it is not disputed that Wainwright actually invoked
his right to counsel and thus activated the requirement
that the State prove that his later incriminatory statements
were the result of discussions initiated by him and were
the product of a knowing and intelligent waiver of his
rights under the Fifth Amendment. Wainwright's contention
that Detective Griffith initiated the discussion which
led to the statements, if supported by the record, would,
-13-
Pee de
‘of course, preclude application of ‘tthe initiation prong
of Edwards and foreclose the State from discharging its
burden of proof on the overall issue of waiver. We turn
then to the question of whether the conduct of the police
in this case amounted to “initiation” within the meaning
of Edwards.
IV
Defendant argues that Detective Griffith's comments
regarding the nature of the charge and his recitation of
the substance of Dodson's statement implicating Wainwright
constitute= initiation cf further conversation by the
officer, after Wainwright had asserted his right to counsel.
The State maintains that Detective Griffith's comments
were mere amplification of the charges made incident to
the routine booking procedure. The State points to the
fact that the defendant's initial incriminating statement
was not made in direct response to Detective Griffith's
comments but . occurred “spontaneously” approximately
forty-five minutes after the defendant had been given lunch,
awaiting the opening of the Magistrate's Court.
In Rhode Island v. Innis, 446 U.S. 291 (1980), the
Court held that “interrogation” under Miranda need not
amount to actual questioning and may instead be the “func-
tional equivalent" of such questioning. The Court defined
the latter to include “any words or actions on the part
-14-
of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.*
446 U.S. at 302.
The State's argument that Detective Griffith's recital
of what Dodson had earlier told _ police concerning
Wainwright's participation in the liquor store robbery
was @ normal part cf the booking processing ignores what
hac already occurred up to that point. Wainwright had
been arrested in Maryland six days earlier on the strength
of a fugitive warrant. At the time of his arrest in
Maryland, Wainwright, in Detective Griffith's presence,
had been advised generally of the charges against him and
had been read his Miranda rights. Presumably at the time
of his court appearance to waive extradition, the defendant
was ayain advised of the charges awaiting him in Delaware.
lin Maryland, under the Uniform Criminal Extradition
Act, after arrest the accused must be taken before a judge
of a court of record who is required to inform the accused
of the demand made for his surrender and the crime with
which he is charged, and that the accused has the right
to demand and procure legal counsel; and if the accused
states that he desires to test the legality of his arrest,
the judge must fix a reasonable time within which the accused
can apply for a writ of habeas corpus. Md. Ann. Code art.
41 $1 et seq. (1982). The accused may waive the issuance
and service of the Governor's warrant for the arrest and
all other procedure incidental to extradition proceedings
by executing a writing in the presence of a judge which
states that the accused consents to return to the demanding
state. The judge must, however, inform the accused of
his rights to the issuance and service of a warrant of
extradition and of his right to obtain a writ of habeas
corpus. Id. at §39.
-15-
A-~7e
Upon his arrival in Delaware the defendant was hardly
in ignorance of why he was being processed. Notwithstanding
the defendant's generalized knowledge of the charges against
him, however, it was clearly appropriate for Detective
Griffith to complete the formalities of the booking process
including, again, advising the defendant of the charges
against him before taking him to the nearest available
Justice of the Peace for his initial appearance as required
by 11 Del. C. §1909 and Superior Court Rule 5(a). In going
beyond the formalities of the booking process to describe
the State's evidence, perticularly the highly incririnéccry
accusations of Dodson, Detective Griffith engaged in a
gratuitous and totally unnecessary tactic which was rea-
sonably calculated to elicit a reaction from the defendant.
The fact that Wainwright's elicited reaction came
not immediately but forty-five mintues later when taken
from his cell to the magistrate court does not sanitize
it. The response made: "I didn't kill him, he stabbed
me twice" was understood by Detective Griffith to be a
denial of the killing but also a claim by Wainwright that
Dodson had stabbed Wainwright. Clearly Wainwright's state-
ment was directly responsive to Dodson's claim, as recited
by Detective Griffith, that Wainwright had been the trigger-
man while Dodson had remained outside. Even though the
statement tended to be exculpatory, in fact it was highly
-16-
aAn~7)
inculpatory because it placed Wainwright at the scene and
thus corroborated Dodson's statement to that effect.
Nor does the fact that the defendant's statement was
made after he was placed alone in a cell render it a purely
spontaneous one. Indeed, the opportunity to mull over
the effect of Dodson‘s accusatory statements could reasonably
have had the opposite effect — to impress upon the defendant
the seriousness of his predicament and the need to rebut
his codefendant’s accusations. Any attempt to “spark”
the accusec's initiative to make a stetement in the absence
of counsel through presertation of evidence will contaminate
the waiver. Bryant _v. State, Md. Ct. Spec. App., 49 Md.
App. 272, 431 A.2d 714, 718 (1981), cert. denied, 291 md.
772 #+(1981); cert. denied, 456 U.S. 949 (1982); see also
State v. Quinn, Md. App., 498 A.2d 676 (1985).
In sum, we conclude that the defendant's initial
statement to Detective Griffith made outside the Magistrate's
Court was an elicited response to a statement made by a
policeman which was reasonably likely to produce such a
response. Since the defendant's elicited statement followed
his request for the assistance of counsel, its admission
into evidence is barred under the evolving standards of
Edwards and Bradshaw.
Having determined that defendant's initial incriminatory
statement was neither spontaneous nor volunteered it is
-l17-
A - 4/#
unnecessary to determine whether his further statements,
made after Detective Griffith reminded the defendant that
he had asked for an attorney and the defendant's subsequent
indication of a desire to retract his request are admissible.
If, as clearly appears, the defendant's discussion of the
incident was prompted by police initiation, subsequent
waiver by defendant in the same continuing dialogue is
also tainted. Moreover, even if defendant's second statement
be viewed separately it was made only after Detective
Griffith led the defendant to believe that he would contect
an attorney who could be present before the defendant resured
his statement. Detective Griffith conceded that his effort
to secure an attorney for the defendant was limited to
a phone call to the office of the Deputy Attorney General.
When he was unable to make contact with the prosecutor,
the officer made no further effort to contact defense counsel
and never made any effort at direct contact with the Office
of the Public Defender. Thus we need not decide whether
the subsequent statement by the defendant was the result
of a fresh waiver made after a good faith, but unsuccessful,
effort to provide the defendant with counsel. Even if
the second statement is separately evaluated, it does not
gain admissibility under the existing standards of “strong
proof of the validity of that waiver.” See North Carolina
-18-
arr9
Vv
Because we conclude that the defendant's statements
to tective Griffith are rendered inadmissible by reason
eof the violations of his right to counsel under the Fifth
Amendment, we decline to address his claim that his Sixth
Amendment right to counsel is egually implicated. We need
not, and do not, decide whether the proceedings against
the defendant had reached the critical stage in the adversary
process where the right to counsel was mandated in any
event. See Deputy, 500 A.2d at 590. We note, however,
tnat ever though the dGefendant's statements were mace
immediately preceding his initial appearance before a
magistrate in Delaware, he had, as part of the extradition
process apparently appeared before the District Court in
Maryland earlier that day. Moreover, if defendant's state-
ments fail to gain admissibility under the standards which
control his right to counsel under the Fifth Amendment,
a fortiori, it is difficult to see how the State could
meet the more exacting standards for admissibility which
govern waiver of the Sixth Amendment right to counsel.
See Massiah v. United States, 377 U.S. 201 (1964).
The conviction is REVERSED and the case is REMANDED
for a new trial.
-19-
PROCEEDINGS
MR. SANDY: The State is prepared to go forwaré in
the matter of State of Delaware versut Percy Ewell Wainwright,
also known as John Wainwright. A motion has been filed to
suppress a statement made by Mr. Wainwright to Detective Budcy
Griffith of the Delaware State Police. We are prepared to go
forward with that hearing at this time.
THE COURT: All right, you may proceed.
MR. SANDY: The State calle as its first witness,
Detective Griffith.
Whereupon,
WILLARD F. GRIFFITH
was called as a witness by and on behalf of the 6tate of
Delaware and, having been firet Guly eworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. SANDY:
Q Detective Griffith, is it true you are employed in
a criminal investigative capacity by the State of Deleware as
& Delaware State Police Detective?
aA Yes, sir.
Q In that capacity have you ever had occasion to come
Griffith - Direct
ae
in contect with one Percy Wainwright, also known as John Wain-
wright?
A Yes, I have.
Q Do you see the person in the courtroor today that you
knov ae Percy Wainwright?
é Seatec in the first table or the richt in the white
T-shirt.
MR. SANDY: May the record reflect he indicated the
defendant, Percy Ewell Wainwright.
BY MR. SANDY:
Q When did you come in contact with Mr. Wainwright for
the first time?
is The first encounter was on November 11, 1982.
Qo Where did that take place?
a The firet encounter was at his residence in Baltimore,
Q Did you subsequently have occasion to come in contact
with him again?
A Yes, sir.
Q Explain where that took place and how.
a On November 16th of 1982, myself and Detective Cliff
Lee picked him up at the prison just on this side of the
Bay Bridge. YJ will give you the name of the prison. Anne
Arundel Detective Center. I picked him up there, where he had
aAa-akw
Griffith - Direct
xs.
T
waived extradition and was brought back to Delaware Stete Police
Barracks in Georgetown, Delaware. |
Q Approximately what time 6id you arrive back in maa a
A It was just before noontime.
¢ Dic you subsequently heve occeticn, after returninc
to the State of Deleware, to heve & conversetion with Mr. Waeir-
wright?
. Yes. |
Q When dic that take place? |
A At that same time at the Delaware State Police Bar-
racks at Georgetown.
i Approximately what time?
» Right around noontime.
Q What condition was Mr. Wainwright in at the time?
A As far as I coulé tell, very goocé condition. He
walks with a limp, but I think that is something he has had
quite a long time.
Q Woulé you please describe his emotional condition
for the Court?
A Again, as far as I coulé tell, normal. |
Q Physically, were you able to observe whether or not |
he appeared to be under the influence of alcohol? |
a No, sir, he Gid not appear to be under the influence |
A-ad
Griffith - Direct
lia
of alcohol.
0 Drugs?
A No, sir.
¢ Before you spoke witl, hir, had he beer giver. e:.
Opportunity to eet or érin.7
A No. We arrived back to the barracks just before
noontime, ané I began to arraign ané process him at that time.
Eventually we bought lunch for hin.
| 0 Who all was processing him?
A Just myself.
Q Where were you Going that? In Troop 47?
a He was first taken to the Troop Commander's Office
at Troop 4, where he was adviseé why he was brought back to
| Deleware and what he was being charged with.
9 At that time did you have occasion to say anythinc
to him regaréing what is commonly known as Miranda rights?
7 Yes. His Miranda was recited from the issue card
that we are issued.
0 Do you have that card with you today?
A Yes, 2 do.
° Woulé you recite to the Court what of those rights
you reaé to hin, if any?
A This is the issued caré that the Delaware State
ga-aF
Griffith - Direct
| 2
Police are issuec. It reads at the top,
"Miranda Warning. You have the right to remain
silent; anything you sey can and will be used against
you in @ court of lew; you heve the right to talk to
@ levyer ené heve hit preeent with you while yor erc
being questioned; if you cannot afford to hire a
lawyer, one will be appointed to represent you before
any questioning, if you wish one. If you decide to
answer any questions with or without an attorney
present, you may stop at any time during the aaa a
Then it has after the warning,
"In order to secure a waiver, the following ques-
tions should be asked and an affirmative reply to each
question:
"Number One, do you understand each of these rights
that I explained to you?
"Number two, having these rights in mind, do you
wish to talk to me now?"
0 ‘, What was his response to those questions?
. Be stated he would like to have an attorney present
or like to have an attoeney. /
Q at that point, what did you do?
A I never asked him no more questions. I took him to
A-2f7
Griffith - Direct
the processing room which is across the hall, and he was finger-
printed and an arrest card was filled out.
Q Did you, in fact, tell him at that point what he
wat beinc chergec with?
1 Yer, £23. Before he wee teres. te the procersir-
roorm.,, he wat advisec that he was beinc charged with first- |
degree murder of William Hastings, which occurred November 3,
1980, and the reason he was being charged for that murder wae
from the statement of Co-defendant David Dodson. |
Q When you told that to the defendant, was that in an
effort to question him or was that an informative speech?
A That was an informative speech. It was part of the
processing. |
Q After you processed hin, what happened?
A Okay. After he was fingerprinted, the Magistrate
Court judge was not available until 1:00 p.m. in the afternoon.
S0 we bought lunch for him, and he was allowed to eat lunch.
At 1:00 o'clock he was taken to the Magistrate Court.
rs) Did you arrive at the Magistrate Court?
A Yes, sir.
Q How far is Magistrate Court from Troop 4?
A Approximately three hundred yards.
+
Prior to your entering Magistrate Court, dié you have
Griffith - Direct
Lo
occasion to have another conversation with Mr. Wainwright?
e Yes, sir.
) How did that arise?
h Whe1, 1 pulleco vu; to Megistrete Court, M:. Wainwzrio):
turnec tc me and stetec tc m, explaincc, "J didr't kil) thet
man." Be said, “He stabbed me twice,” and I advised him that
since he had elected to have counsel, I could not talk to him
about the case.
What was his response to that?
He asked me if he could retract it.
What did you do then?
ry D> FP ©
I told him we would go in and call the District
Attorney, John Sandy, yourself, and also have a defense attorne
present, and then he could tell his story, and if it was true
that he had not pulled the trigger and killed the man, and if
it was determined by you, that he could possibly be held as a
material witness.
Q Subsequent to his asking you if he could retract his
request for an attorney, did he make a statement to you re-
garding the incident?
A Wo, weir. Okay, I am sorry.
Q After he asked if he could retract his statement to
you asking for an attorney, did he make a statement to you
A-2?
Griffith - Direct
1,
regarding the Hastings’ homicide?
A Yes, sir, he did.
Q Did you promise or threaten hir anything to make hir
make thet statement?
2. No, sir.
Q At the timc he made thet statement, dic he appeer tc |
be in full control of all his faculties?
Yes, he did.
Did he appear to be under the influence of alcohol?
r 2 >
No, sir.
@ $$In your training have you had occasion to observe
people who were under the influence of controlled substances?
A Yes, sir.
Q Did he appear to be under the influence of any control-
led substance?
A No, sir, he didn't.
Q What was his mental condition?
A Wormal. He appeared to be normal.
Q At any time after he askeé if he could retract his
request for an attorney, dic he ever again indicate to you that
he did not wish to speak with you or that he wished to have an
attorney present?
A No, he didn't.
Griffith - Direct
MR. SANDY: I have no further questions of this
witness.
CROSS-EXAMINATION
BY Mi.. HALLER:
Q After he stertec givino hie statement where Mr. Sency
left off, what did he say?
B Okay. This is the statement in Magistrate Court when
we were sitting and waiting for the judge? Ie thie the state- |
ment you are talking about?
Q Give us that one first.
A When I went into Magistrate Court, we made the call
to Mr. Sandy, whose secretary stated that he would call back
immediately. At that point I asked him, I said, "Do you wish
to tell me what happened?," and this is when he went into the
statement where himself and David Dodson had been driving
through Bridgeville approximately November 3, 1980. They had
been drinking most of the day. David Wayne Dodson had been
talking about how he had wanted to perform a robbery to get some
money. He said that he, Mr. Wainwright, stated that he did not
want to participate in any robbery and he would not go along
with it. While they were riding by the package store in
Bridgeville, Lord's Package Store, where the victim was working
he, David Wayne Dodson, told Mr. Wainwright to stop the silat |
aA- 2?
Griffith - Cross
12
This is where he was going to perform the armed robbery.
Mr. Wainwright would not comply with stopping, and
he stated at that time David Wayne Dodson leaped acrose ané
etebbec hir. twice. He turned right or. 404 richt ef Boor. at you
go throucl Eridgeville. He stoppec at e place or. the right ft:
a factory or by some type of plant. There David Wayne Dodson
got out of the pick-up with a twelve-gauge shotgun.
Mr. Wainwright steted a short time later Mr. Dodson
came back and jumped in the pick-up with his shotgun and told
him, “Get out of here." On the return to Federalsburg, where
both of them were staying, Mr. Dodson told Mr. Wainwright that
he had had to kill the man in the package store.
Q That was the end of the statement at Magistrate's .
Court? :
a Thet was the end of the statement referring to the
murder. Then he went on to -- then he talked about what happe
after they returned back to Pederalsburg. I think they had had
an argument, and Mr. Wainwright had returned to Baltimore and
Mr. Dodson had gone his own separate way.
; Q When did they have the exrqunent?
A Well, apparently after -- the argument stemmed fron
the murder, and Mr. Wainwright did not want any --
Q They went back to Federalsburg that evening?
Griffith - Cross
13
A They were staying in a camper behind a garage on the
way back to Federalsburo.
Q Thet eveninc they had the aroument in Federalsburc:
, Ke. &¥fte: thet gneséent ecerrre?’ thet &:, Cedartese
statec, him and Mr. Dodson parted ways.
Q Is there any time sequence on that?
A I don't know about any time sequence.
Q When did you first see Mr. Wainwright? What time?
A The very first time?
Q Yes.
a The very first time was November 11, 1982, when my-
self and Maryland 6tate Police Detective Ward went to the
residence where Mr. Wainwright was staying.
Q —_ Wainwright given Miranda rights on November 11th?
a I feel certain Detective Ward gave him Miranda. I
didn't talk to him. I didn't give him Miranda, because I
didn't talk to him. He didn't want to talk to me. I didn't
question Mr. Wainwright.
Q You feel certain that the Maryland Police would have
given him them as a matter of practice?
A I believe I looked through the report from the
Maryland State Police, which I have with me, and I believe it
is in there that Detective Ward did read him Miranda. j
Griffith - Cross
ee
Q You did not give him Miranda on the llth?
No. No, sir.
Q No statement was taken from Wainwright on the 11th?
A Ko, sir.
Dic you see Wainwricht on the 12th?
No.
When did you see him again?
- > P
November i6th.
Q When did you see hir on the 16th?
A When I picked him up at the Anne Arundel Prison. |
Q At what time? |
A I don't know the exact time. I would say it is a
little over an hour back. We arrived back at 12:00. I probably
pickeé him up around 10:30, or shortly thereafter.
Q You picked him up at 10:30 and you rode back to |
Delaware? |
A Yes, sir. |
Q Were there any Miranda rights given at that time in
that time sequence?
x None that I can recall, no, sir. There were no ques-
tions asked pertaining to the murder.
Q Who did he ride back with?
A He rode back with myself and Detective Cliff Lee.
A- 3s
Griffith - Cross
15
Q From the police car he was taken right back to the
Troop in Georgetown?
A Yes, sir.
0 Whet timc woule thet be?
A Shortly before noon when we arrivec bac). te the Ftetc
Police Barracks.
Q When did he leave the State Police Barracks to go to
the Magistrate's Court?
A The Magistrate was available at 1:00. Right around
1:00. It was right around 1:00 p.m. when we left Troop 4 and
went to Magistrate's Court.
Q Were any Miranda rights given between noon and 1:00?
A Yes, sir. When we went to the Troop or when we went
to the Troop Commander's Office for him to be formally processe
Miranda was read from the issue card which I previously read.
Q Give us a time on that.
Q We entered the Troop Commander's Office right around
12:00 noon. That was done immediately upon going into the
room.
Q They were given one time, as far as you know?
e Yes, sir.
Q When they were given, the Defendant said he wanted
an attorney?
A- 323
Griffith - Cross
1é
a Yes, sir.
Q And your response was what?
A At that time I did not ask him any questions. I
advised hir why he was beine charged, why he was brought bac)
tc Delevarc, anc whit Co-dcfencent Davic Weyne Dodson hed in;i:-
cated,
rey You told him what about Dodson?
7 What he was advised that he was being charged with,
murder one of Mr. William Hastings et Bridgeville, Delaware,
and the reason he was being charged is Co-defendant David Wayne
Dodson had given a complete statement how him and Mr. Wainwright
had gone to Lord's Package Store ané Mr. Wainwright had ended |
up shooting Mr. Hastings.
Q Approximately what time would it have been that you
told Wainwright that David Dodson had ended up shooting
Mr. Hastings. Approximately what time would it have been that
you told Wainwright that Devid Dodson had given a com lete
statement?
_ If he did not request an attorney, he would have been
told that almost immediately. 60 we are talking within a time
span of five or six minutes.
a So we are talking about -- just guessing -- 12:057
- Approximately, yes, sir.
og
|
A+ Jt
Griffith - Cross
»
Q And you told him the substance of what David Dodson
had said?
LS Yes, sir.
0 Whet war thet?
4 Suet Ba. bodes. hac @carattec coine te the paciecc
store with Mr. Wainwright, but in his statement he had stated
that he had been going to stay outside the package store while
Mr. Wainwright had gone in, and Mr. Wainwright had been the one
that went inside the package store and committed the murder.
Q 60 within five or ten minutes after this man said he
wanted an attorney, you were telling him what David Dodson had
said? .
A I was advising him why he was brought back to Delawan
and what he was being charged with.
Q Ané you were telling him the substance of the stete-
ment that the police got from Dodson?
a Yes, sir.
Q What was his response to this?
7a There was no response.
Q After you finished informing him of the charges and
telling him the substance of the statement of Mr. Dodson, what
was Go>* next?
- Then he was placed in -~ I believe he was placed in 1
A: oe
Griffith - Cross
LE
Getention cell while lunch was brought to him.
Q Was anyone talking to him while he was in the cell?
A I am not exactly sure whether he was placed in the
ecl] or whether he remainec in the roo: anc wer jurt wetches.
| But there war no question: agkec. Ne conversation,
Q When aid mr. Wainwright next speak, and what did he
say? |
A When we were on our way to Magistrate's Court and
parked on the parking lot of Magistrate's Court, he turned to |
me and said that he did not kill that man. |
Q What time would this be? |
A It was right around 1:00 o'clock, 1:00 p.m. Approxi-
|
mately one hour later.
Q Were you the only person in the car who drove -- |
A Yes, sir. |
“0 --wainwright down? |
a Yes, sir. .
Q Did you have any conversations with him on the way to
the Magistrate's Court?
. No, sir. Like I said before, it's only about three
hundred yards.
Q 60 at 1100 o'clock he says he did not kill the man?
A Yes, sir.
A-J3¢
Griffith - Cross
— ae
° What elee did he say?
a Okay. This is when he stated that he 4ié not kill
thet man anc that he had been stabbed twice by Mr. Dodson.
inie dt wher 1 Adnfornec hit he hac requested counsel] anc thct
| J coulé not speak with hir..
Q What Gié he say to that?
A That is when he askeé me if he could retract his
0 S0 we are still around 1:00 o'clock?
a Yes, sir.
o Then you went into the Magistrate's Court building?
o Yes, sir.
Q Ané the Magistrate's Court building is one-tenth of a
mile from the Troop?
A Yes. Like I said, approximately three hundred yards
from Troop 4. .
Q You called Mr. Gandy's office?
A Yes, sir.
c What time would that be?
A As soon as I went in Magistrate's Court. 6Ghortly
thereafter. I don't know the exact times.
Q A little after 1:007 A few minutes after 1:007
A I would say so.
Griffith - Cross
ie Then when you hung the phone up, 4i¢ you talk to
Mr. Wainwright egein?
A After talking with Mr. Bandédy's secretary, Lucind,
whe stetec he woule cal) bec immaeciately, thet if wher 3 eched
Mr. Weinwright Gi¢ he wil to wake @ steterent at thet tire oc:
Gi¢ he wish to tell me what happenec at that time.
i?) Where were you in the Magistrate's Court?
A There is @ little room that used to be the officers’
room. As you go in the front door and turn left down the hall-
way, you turn to your right immediately, ané there is a littie
room in there that they keep documents ané forms, a table ané
two chairs.
o We are talking around 1:05 or 1:10, as far as time
goes?
A Yes. Uh-huh.
i?) Bo this is a little more than an hour after he said
he wantec « lawyer?
A Yes, sir.
Q In between that you had informed hir of the charges
against hin?
A Yes, sir.
Q Ané you haé tolé him the substance of the statement
that the other State Police had obtained from David Dodson?
Griffith - Cross |
= |
. I informec hir of the reason why he was charged ané
brought beck to Deleware, yes, sir.
iq Are you just seyine you were telling hir whet he wee
etrvree’ wit! er ere you ceyis.c otet be 39 eberecd wlt) e¢.7 the:
seying what Dodson saic, as far as you were concernec?
A I was informing his of the reason why he was chargeé
with firet-Gegree murder, ané the reason he was being chargeé
de by @ statement from the co-defendant, Davié Wayne Dodson.
0 Dié you tell him what that statement was?
A I tolé him about the statement Mr. Dodson haé given
which Mr. Wainwright haé been the one who pulled the trigger
that killed Mr. Hastings.
6 Previously you said you coulé not talk to hir without
an attorney being present; is that right? |
A You mean prior to exiting the wehicle that since he
requested counsel, I coulé not speak with hin? Yes. |
r You haé tolé him that before, an¢é then when you get
into Magistrate's Court, you ask him if he wished to make «
statement?
A Yes. I asked him if he wished to tell me what
happened then.
0 ‘They would seem to be different positions that you
were taking. Why, at one time, Go you tell him you cannot talk
A- 37
Griffith - Cross
aan
=
to him because he has asked for an attorney, and then an hour
later you say, “Do you wish to make a statement"?
A When he made that statement to me, "I didn't kill
| thet man. He stabbes me twice,* I advised hir et thet point,
"If you reguertec counsel], I cannot speak with yor on the sul -
ject.” At that point he turned to me and said, "Can I nen’
that statement?"
G Ané you said?
A This is when we went inside and attempted to call
You did not get through to Mr. Sandy?
6
A No, sir. I left word with hig secretary to call me.
G You did not get through to any other attorney?
A No, sir.
) Qo Then you went back to him and asked him whether he
wanted to make a statement?
. Yes, sir.
ry That was five or ten minutes after you informed him
that you would have to talk to Mr. Sandy before taking the
statement?
a Pardon me again?
rey That was five or ten minutes after you haé told hin
that you could not take his statement and that you would have
A- Fe
4:
Griffith - Cross
to call Mr. Sandy?
A I advised hir that I could not speak with hir on the
subject because he ha¢é requested counsel]. This is when he |
turnes to me ané withes to know whether he covlé retract thzt
stetement. This is wher we went in anc cellec Mz. Sandy tc
inform hin what was going on. At that point Mr. Wainwright al
the way I felt -- had elected to make a statement when he
turned to me and said, “Can I retract my statement? Can I |
retract wishing to have an attorney?"
Q You 4id not take any written statement?
A No, sir.
Q You Gid not take any taped statement?
. No, sir. I advised Mr. Wainwright that after speakinc
with Mr. Sandy -- or that Z didn't want to do anything formal
like that until speaking to Mr. Bandy and his attorney.
Q Then in this interval of when he first claimed his |
Miranda rights ané when you were asking hin about making «
statement, he was fed?
A Yes, sir.
Q When he was in the Magistrate's Court, was he cece id
A The only thing he would have would be hanécuffs on
his wrists.
Q Was there anybody else in this room where he was
A-F/
Griffith - Cross
24
taken?
A No, sir. There is other people in the court and
throughout the court, but not in thet particuler roor.
MR. BALLER: Thank you.
REDIRECT EXAMINZETIO:
BY MR. SANDY:
Q Officer Griffith, isn't it true that contained in
the affidavit of probable cause for the warrant issued against
Percy Ewell Wainwright on November 11, 1982, there is a refer-
ence to statements made by Dodson?
A Yes, sir, there is.
Q Is that, in fact, a true and accurate copy of the
affidavit for the warrant for Mr. Wainwright's arrest on the
charge of murder in the first degree?
A Yes, sir, it is.
MR. SANDY: | Inasmuch as this is my only copy, I would
ask the Court to take judicial notice that that is contained
in the affidavit of probable cause for the warrant for the
arrest of Mr. Percy Ewell Wainwright on the charge of murder
in the first degree. That warrant is part of the Court's file.
THE COURT: Are there any objections?
MR. HALLER: I have no objection. But I think that
the paragraph that he is talking about, which is probably less
A-Akh
Griffith - Redirect
25
than twenty-five words, should be reaé into the record.
MR. SANDY: It is Number Four on the list.
"On 11-11-62, David Dodson 4ié confese to saic
murder anc ims licetedc Co-defendent Wainvricht in ez2ic
murder.”
THE COURT: Is there anything further from this
witness?
MR. SANDY: I have sothing further.
RECROSS EXAMINATION
BY MR. HALLER:
Q An I to understand then that you read from the probab
Cause warrant to Wainwright?
M No, sir, I did not.
Q Did you give him more details than is in Allegation
Number Four? Did you give Wainwright more detail as regards
what David Dodson ents than what is stated in Allegation Number
Four on the probable cause warrant?
A Yes, sir, I Gid. 1 advised him -- you want me to go
into what I said again?
Q Could you give us some time factor as to how long it
took you to tell Wainwright the Dodson statement, as you under-
stood it?
A I can tell you what I said, ané you can judge how lon
le
fA- 43
Griffith - Recross
2£
it would take. It would be better than me guessing how lonc
it would take. I advised him he was being charged with first-
Gegree murder of the murder of Willian Hastings, Bridgeville,
Delevere, and Co-defendent Devic Weyne Dodeor hee conferescl tc
beince present Guranc the crine enc hec etatec thet Fercy
Wainwright, John Wainwright, had gone into the package store to
commit the robbery and had shot and killed Mr. Hastings.
Q Do you normally inform defendants as to what is on
the probable cause sheet?
A I inform them why they are being arrested, not what
is on the probable cause sheets, because I am sure what I tell
them is on the probable cause sheet, if you understand what I
am saying.
MR. HALLER: I have no other questions.
MR. SANDY: I have nothing further, Your Honor.
THE COURT: You may step down.
(Witness steps down.)
MR. SANDY: The State rests.
MR. BALLER: We will not present testimony on this”
point.
THE COURT: Do you wish to argue this point?
MR. BALIER: I would argue to the Court that the
Gefendant claimed his Miranda right at noontime. Then thereafter
A- 4
27
he was fed, and at 1:00 o'clock, according to Mr. Griffith,
he made the spontaneous statements about how he did not kill
Mr. Hastings and regarding the stabbinc. I am not directinc
rT: coreicnte te any epontenccus eteternentse madc. Certeiriy the
otiacer canncr hs oeeiiina tc contre) epontaneour staetercnt:.
However, as regards the statemente said thereafter, after we
have the officer saying, “I cannot talk to you,” or, “We will
call the Attorney General's Office and we will see about a
material witness. I cannot get through to the Attorney General.
Do you want to tell me about it?,” in the Magistrate's Court
when the man has handcuffs on a little more than an hour after
the man originally claimed his Miranda rights and sometime after
Mr. Griffith told Mr. Wainwright that he understood from the
Dodson statement that Dodson was saying that Wainwright was
the murderer, I would certainly say those statements, the state—
ments after the call to Mr. Sandy's office, should be suppressec.
THE COURT: Mr. Sandy?
@eeteeeneeeetee#eee#eenee#n#e_e#ee#ee# eae
THE COURT: Thank you.
MR. HALLER: I would like the State to give time
factors as regards that opinion, if it knows, as to whether we
are talking about s wnort time of one hour with a man eating
in between or whether we are talking about days going by.
A- If
MR. HALLER: That appears to talk about a two-day
period. Certainly thet is different fror the situation where
the per elaine the rights. Ine pen de tole there de evidescc
aceinet Lir fror the co-écferncent, anc the mar ie fed, anc the
man is brought to the Court all within an hour. If we have
another day going by, it gives the defendant time to reflect.
It gives him time to think about, "I don't want to make a state—
ment." That puts it in a new light, and those are new circun-
stances. That is not what we have in Mr. Wainwright's case.
THE COURT: Gentlemen, as I understand the facts,
the defendant was picked up on November 16, 1962, at pie i
10:30 from the Anne Arundel County Prison in Maryland, brought
back to Troop 4, arriving back around noontime. He was advised
of his constitutional rights. The defendant chose to exercise
those rights, which indicates to me he understood then.
He was then informed of the charges pending against
him, including the evidence that the State had. He was placed
in the cell or left in the room. He was given lunch around
1:00 o'clock. He was taken to the Justice of the Peace Court
for a preliminary hearing or, at least, bail being set and
arraingment.
On the way there, he decided that he wantec to speak
4-7 46
=: eon
to the police officer. The police officer again warned him
that he chose to have a lawyer present. When they got to the
Justice of the Peace Court, the defendant asked that he still
telk to the police officer anc retrect the excrciee of thet
2oGut.
The only thing that the State has to show is that the
defendant was warned of his constitutional rights, that he iiink
stood them, and that he waived therm. It is clear that he under
stood them fron the fact that he exercised them the first time,
and it is further clear that he wanted to waive them by the |
fact that he asked that he waive them. If it was the other |
way around, that he spoke and then wanted to exercise his
constitutio.:1 rights, we certainly would let the statement in,
if you waive it.
In this particular case, it is clear that he under-
stood them and that he exercised them, and according to the
testimony of Officer Griffith, he wanted to initiate a further
conversation and withdraw the exercise of that right and wanted
to make a statement, and the question is was there anything
brought to bear upon him that caused him to change that decision
to exercise his consitutional right to have a lawyer present.
I cannot say that giv‘ng him lunch, informing him of the evidence
and bringing him to the Justice of the Peace Court was such
Fe
—' |
|
Overbearing tactics by the police that he was not exercisinc
in free will. I am not in a position to say thet at all.
As a matter of fact, it if just the opposite. He hac
further time for reflection. Basec upor. the teretinony that her
beer, offeres o1. the statement presentec te the Court, the Court
will not suppress it on the grounds that the defendant did not
waive his constitutional Miranda right.
Are we ready to proceed?
@*ee7n+eoe@ee@e”e@ereerter#erktrhtenreeteee#eeee#ee#e
MR. SANDY: The State is ready.
MR. HALLER: I am.. Barlier this morning there was
the reference tc the fact that the alias John Fisher would not
be used by the State. |
MR. SANDY: I did not hear what you said. |
MR. HALLER: Earlicr this morning there was ieee
to the fact that the State was not going to use the name of
John Fisher.
MR. GANDY: That is correct. We will excise that from
the indictment, Your Honor, and just go on Percy Ewell Wainwright.
also known as John Wainwright,
THE COURT: As @ matter of fact, the clerk referred
to that only in jury selection this morning.
MR. HALLER: All right, we are ready to proceed in
A- 94
172
origina) twelve begin deliberations on the penalty phase or
finé a verdict of either not guilty or guilty of something less.
than murder in the first decrec.
We will take @ ten-minute recess ané besin in the ve
courtroor. in ter. minuter.
(Vhereupon, a brief recess was taken, at the conclu-
sion of which the Court reconvened in open court and pro-
ceeded to hear testimony and Mr. Haller's argument on the
Defendant's Motion to Suppress, which has previously been
transcribed and is not being made a part of this record,
after which the following proceedings were had:)
TRE COURT: Mr. Sandy?
MR. SANDY: The most recent case on this issue, Oregon
v. Bradshaw, decided on May 23rd of this year by the United
States Supreme Court, was a case wherein a person had asked for
an attorney and later reinitiated conversation with the police
officers. In that particular case the person asked the police
officer, "Well, what is going to happen to me now?," and in that
particular case, just by asking that, the Supreme Court ruled
that that was an initiation of further conversation. Hie state-
ment showed a willingness ané desire for generalized discussion
about the investigation. It was not merely a necessary inquiry
arising out of the incidence of the custodial relationship.
Your Konor, at this point, we have exactly thet,
Percy [wel] Weinwright wanted to talk to the police abeut his
charges. Tret is perfectly clear Fy his request te retract bic |
wegues: for coursed. het Epos. @ willingre.: te e#cce:. vit |
Che DEceveke Eusic Tedact ale.t the ehaggec aqgaiset Sis.
Asice from that, we have showr that havin then
waiveé that right to counsel] and saying, “I Gon't want an
attorney now,’ we have shevn that throughout the rest of it he
was, ir. fact, ewerce of his rights for en attcrne;, tc rereir.
silent, ané ali the rest of his Miranca rights, enc thet he
willincly gave a statement to the Delawere State Tolice.
THLE COURT: Thenk you.
(Wnereupon, Mr. Haller presentec rebuttal argument
to the Court, which has previously been transcribece and
is not being mace a part of this recorde, after which the
following proceecings werc hadé:)
MR. SANDY: he Oregon trial was where @& suspect cut
off the custodial interrogation by invoking his right to an at-
torney, but then asked the interrogating officer, "What is going
to happen to me now?" Ke engaged in several discussions with
police officcrs over a two-day period and was twice re-warnec
of his rights prior to execution of a written waiver of richts,
:
the taking of a polygraph examination, and the takinco of a
1A- se
(Whercupo:, Mr. eller presented further rebutte’
ercurment te the Court erné ¢,- Court rendcred it. CPpinic
o- the etion te Surpscse, wtich her Previouejy heer ¢:
Cralce tn. £2 not besns> race ¢ Fert of @hie gecers, 2%,
which the jury was cellec to the jury box and was éus,
Sworn ané the following proceecings were had ir open court;)
TUL COURT: mz. Sancy, @¢ you wieh to mabe @!, Cpenine
@tetement?
scien
WE. EIEDY: Yes, Your Bonor,
Mey it please the Court, Medar Forelacy, ladies an+
gentlemer of the jury: Thies ide the Jeet chapter of the life of
Wilidar gs. Hestings. mr. Hastings wee e liquor stcre cler} whe
Workec in Lord's Liquor Store in the fe11 Cf 1980. Lord's
Liguor Store ie the ligucr store thet is Operetec in the Tow:
of Bridgeville near Route $04 where you turn off anc heec toward,
Beltimore and the Bey Bridge.
Lacies anc gentlemen of the jury, on the night before
‘Election Day, Movember 3, 1960, while he was working at thar
‘ieee, someone entered that store and killed him. He wee shot
‘os Close rance with e shotcun. You will hear Dr. Tobin core in,
who did the Sutopey, and testify about where he was shot, the
| oumber of shots and the shotgun pellets that were removed frorc
——e
/
Mn i
IN THE SUPREME COURT OF THE STATE OF DELAWARE
PERCY E. WAINWRIGHT,
Defendant-below,
Appellant,
v. No. 365, 1963
STATE OF DELAWARE,
lie ie th oh
Appellee.
ORDER
Before CHRISTIE, Chief Justice, MCNEILLY, HORSEY, MOORE
end WALSH, Justices, constituting the Court en banc.
Thic 10 Sey of December, 1965, appellee having filed
on Wovember 6, 1965, without leave of Court previously
sought anc following argument before the Court en banc,
® document entitled ‘Motion to Remand for a Purther
Evidentiary uwlaring and Findings’ and
It being epperent that said document seeks to place
before the Court factual] materie! which was not part of
the record of the proceedings in the Superior Court, contrary
to Supreme Court Rule 9(e), and
it further appearing thet said motion presumes a4 result
an @ matter now under advisement to the Court 2m banc
WOW, THEREFORE, IT 18 ORDERED that the motion to remand
is denied.
BY THE COURT
Chief Justice
anew KH 4
: a
Kimmel
REPORTER
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-C.i. to the police barracks?
»
A If there was it is nothing I a recall other thar
the weather, or whatever. Nothing that I can reca))] pertaining
to the case,
0 Would you pick up then what took place once you got
into the Georgetown barracks?
a FAll right. He was placed in the processing roam with
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OF DELAWARE
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The defendant, David ®. Dodson, was convicted following a
jury trial in Sussex County of first degree felony murder and
possession of e deadly weaper @uring the commission of &@ felony.
When the jury refused to impose the death penalty, the defendant
was sentenced to life imprisonment without probation or parole
on the murder charge anc to twenty years’ imprisonment on the
weapons charge. The charges stemmed fror Dodson'’s participation
in the 19&0 atterptec robbery of ae Bridceville liquor store anc
the murder of Williar Hastings, the ligvor store clerk. A co-
Gefendant, Percy Ewell Wainwright, was convicted of the same of-
fenses in a separate trial anc sentenced to life imprisonment,
the State having declined to seek the death penalty. We recently
reversed Wainwright's convictions, ruling that the police obtainesc
certain oral statements fror Wainwright in violation of his FitsT
Amendment right to counsel. See Wainwright v. State, Del. Supr.,
a
504 A.26 1096 (19686).
Dodson argues on appeal that the police obtained an oral state-
ment from him in violation of his Fifth Amendment raght to remair
7 )
silent under Mirande v. Arizona, 384 U.S. 436 (1966). Because we
conclude the trial court erred in permitting the introduction of
defendant's statement, we reverse anc remand for 4 new trial.
1. Because ovr dispesition cf this case terns oF the defencar-'s
ragnt to remean s-lent, wé neec not accress nis owner arguments
We do note, however, that the question of whether the analysis
set forth in Edwards v. Arizone, 451 U.S. 477 (1981), applies
to the Sixth Amendment right to counsel as well as to the sare
right under the Fifth Amendment, argued against by the State in
supplemental briefing, has been laid to rest by the United States
Supreme Court's decision in Michigan v. Jackson, 106 6.Ct. 1404
(1966). In that case, the Supreme Court held that although the
bright-line rule established in Edwards rested on the Fifth Amenc-
ment, the reasoning of that case +t aimed even greater force
to Sixth Amendment cases. 1d. at 142).
1
On October 26, 1961, 8 Sussex County grand jury indicted
David Dodson for the murder of William Hastings during an eat-
tempted robbery of a Bridgeville liquor store the night of
November 30, ach, bacwane Dodson was incarcerated in Maryland,
the Delaware charges were lodged as detainers with the Maryland
correctional] authorities. On October 25, 19682, acting pursvant
to the provisions of the Irterstete Agreement oF Detainere, the
defendant notified the Delaware prosecutor that he wished to be
tried on the ovtstanding murder charge.
Dodson was transpoited to the Sussex Correctional Institu-
tion in Georgetown, Delaware on November 10, 1962. The next morn-
ing, Delaware State Police Detective Griffith took him to the
police barracks for processing prior to his arraignment. At the
barracks, the detective read the defendant his rights under Miranda.
He informed him that he was being charged with the murder of
William Hastings and that it would be better if he cooperates
with the investigation. The defendant said he would make a state-
ment, but not at that time.
The officer then began questioning Dodson about another
homicide. After questioning the defendant for approximately 45
minutes, the officer advised him that he hac given good irnformaticr,
2. At the time of the killing, the defendant was an escapee
from ae Maryland prison, where he was serving the remainder
of his term of imprisonment for 8 prior murder in Marylanca.
By the time he was indicted in Delaware, however, he had been
recaptured by the Maryland authorities.
r Processing includes notifying the individuel of the charges
against hair, fingerprinting and photographing him, taking his
personal history, and asking if he wis*-<« to make a statement.
———— ms
but that the police needed to know that he was telling the truth.
At that point, the officer asked him if he wanted to talk about
the Hast:ngs homicide at that time. The defendant then implicated
himself :n the Hastings murder, telling the officer that he had
acted as @ lookout for the Bridgeville robbery, but that Percy
Wainwright, Dodson's co-defendant, had entered the liquor store
enc killed the clerk. The Superior Court allowed the introductior
of the s:atement at trial.
1]
In Miranda, the United States Supreme Court set forth the
procedure to be followed when a defendant invokes his right tc
remain s:lent or his right to counsel under the Fifth Amendent:
Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in
any manner, at any time prior to or during question-
:ng, that he wishes to remain silent, the interroga-
tion must cease. At this point he has shown that he
intends to exercise his Fifth Amendment privilege;
any Statement taken after the person invokes his
privilege cannot be other than the product of com-
pulsion, subtle or otherwise. ... If the individual
states that he wants an attorney, the interrogation
nust cease until an attorney is present. At that tire,
the individual must have an opportunity to confer with
the attorney sand to have him present during any sub-
sequent questioning. If the individual cannot obtair
an attorney and he indicates that he wants one before
speaking to police, they must respect hie decision
‘o remain silent.
366 U.S. at 4735-75 (Toctnote onsitec).
With regard to the Fifth Amendment right to counsei, the
Supreme Court established a bright-line rule for determining cor-
pliance with Miranda in Edwards v. Arizona, 451 U.S. 477 (1981).
See Wainwright, 504 A.2d at 1101. The Court rujed that once an
-S-
accused has expressed 6 desire to deal with the police only through
counsel, he "is not subject to further interrogation by the auth-
orities until counsel] has beer made available to him, unless the
accused himself initiates further communication, exchanges, er con-
versations with the police.” Edwards, 45] U.S. at 484-85.
In Srith v. Illinois, 105 §.Ct. 490 (1984), the Court clearly
ovtlined the analysis reguired by the Edwards rule:
First, courts must determine whether
the accused actually invoked his right
to counsel. ... Second, if the accused
invoked his right to counsel, courts may
admit his responses to further questioning
only on finding that he (a) initiated fur-
ther discussions with the police, and (b)
knowingly and intelligently waived the
right he had invokec.
Ic. at 493 (citations omitted).
The Supreme Court reaffirmed the requirement that the accused
initiate further discussion in Oregon v- Bradshaw, 103 §.Ct. 2830
(19683): *({Blefore ae suspect in custody can be subjected to further
interrogation after he requests an attorney there must be a showing
that the ‘suspect himself initiates dialogue with the authorities.'®
Id. at 2634 (quoting Wyrick v. Fields, 459 U.S. 42, 46 (1982)). This
Court summarized the controlling principle with regard to initiation
in Wainwright: “If the police initiate further questioning after an
scocse2 resuests the presence c* ccunsel, resultina stetements are
excludgable apart from the issue of waiver.” 504 A.2d at 1102.
With regard to the Fifth Amendment right to remain silent,
the Supreme Court, in Michigan v. Mosley, 423 U.S. 96 (1975), st-
tempted to define the scope of the Mirands requirement that once
err.
Fifth Amendment right to remain silent. Under an Edwards-type
anslysis, the State was not free to reapproach the defendant for
@ statement as soon af it did in this case.
Moreover, enalyzing this case under Mosley, it is clear
that the officer did not scrupulously honor the defendant's
right to cut off questioning. 423 U.S. at 104. As in Tucker v.
tate, Del. Supr., 41] A.26 603 (1980), there was a “significant
and unacceptable nexus” between the officer's continued questioning
and Dodson's statement. Id. at 605. After the defendant declined
to make a statement concerning the Hastings murder, Detective
Griffith should not have directed the questioning back to that
same subject in the same conversation only 45 minutes later, giving
to 423 U.S. at 106.
or
7 maid ru
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te meade thereafter rejudicie) and reversible
et eee ee ee ee “eres
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at 250, 4 A Zot
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‘ no a
t tb
y
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ets
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the presence of counse
cused. errestec, Or BUF
the authorities to ‘epark’ the
faminn’ 4)
| ‘ t? {'y . ‘
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a } Cc at
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4 ‘ Dar
, ‘ ‘ ;
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' there was t
ara mn
‘ f*
trne the \
+) at ]
- pact a &
t Bt r
ore a. > / -*
a 4 * t= e+e on
nc instruction illustrates a mere
not a misunderstanding of the appli
too, wes accidenta) and unlikely t
not eddress it bere
De cg, the permutted ti
‘ of do ent to-wit Cor
( ections, ¢
nig eC MeCATBA in);
been excluded. We disagree. Ths
Gocket entries, and charging docu
urt were certified as true copies by
They were thus admissible under
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.