Opposition Brief — Murray v. Wilson

EDITOR'S NOTE

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No. 86-1936 a

OFFICE . THE CLERK

JUL3B 1987 |

IN THE : SUPREME COURT. US.

SUPREME COURT OF THE UNITED STATES

. j Supieme Court, U.3.

October Term, 1986. . FILED

ms ' Jee 3 1987

EDWARD MURRAY, Ditector

a ' * JOGEPH F. Lut

Virginia Department of Corrections, —

Petitioner,

Vv.

‘

- ALBERT L. WILSON, —

need Shae He po hg ' ee Respondent.

te +2

.

ON PETITION FOR A WRIT OF .CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE POURTH CIRCUIT

BRIEF FOR ALBERT L. WILSON IN OPPOSITION

_® Martin J. Barrington

". “Donald L. Creach

_* HUNTON & WILLIAMS’

.-P. O. Box 1535

' Richmond, Virginia 23212

(804) :788-8759

fe. gas sg ty Counsel of Record

-% “es Td f 7

QUESTION PRESENTED

Did the Court of Appeals correctly find that Albert

Wilson's confession was obtained in violation of his Fifth

Amendment and Sixth Amendment rights to counsel and should have

been suppressed?

TABLE OF CONTENTS

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QUESTION PRESENTED. .ccccccccvvceeses Veeeee weer k eecceccs esvel

TABLE OF CONTENTS... ccccccccccces cece cccrccces Eee yee ere © |

TABLE OF AUTHORITIES.......0.. Tere ey e eer eccsccce eecccccce iii

TATE OF Te CAs 6k cb has iie hes 465 ee eens a eeseaes eo cccee saad

ARGUMENT . cc cscccrccccscccccccccccccece Teete ee eeT ee Vere ee 4

THE COURT OF APPEALS CORRECTLY FOUND THAT

WILSON'S CONFESSION WAS OBTAINED IN VIOLATION

OF HIS FIFTH AMENDMENT AND SIXTH AMENDMENT

RIGHTS TO COUNSEL AND SHOULD HAVE BEEN SUP-

PRESSED... ce cccees Vee TT US CROC Lee CT Cee ee eRe eee =

1. WILSON ADEQUATELY ASSERTED HIS RIGHT TO

COUNSEL AT THE INITIAL APPEARANCE. ...cccccccsvcess 5

2. THE POLICE SUBJECTED WILSON TO THE FUNC-

TIONAL EQUIVALENT OF INTERROGATION. ....ccc0s000s0008% 7

Rais MRS bs d 044 KOLO RRR N RRS CERAR EE ANTES OTN OR ROR A SOLS K ORR ll

(ii)

TABLE OF AUTHORITIES

Cases

Arieona v. Maure, 107 S&S. Cts USSR C29OT ask cdi ccctndacc®, 9; 19

Breauir +. Dili tame. O20 UB. SOP Cioran ki oct ccseu nce wcce re

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)........... Kaede sii 7

Kirby v. 2illinois, 406 U.S. 682, 669 (1972)...<... cance se eee

Maine v. Moulton, 474 U.S. 159, ___, 106

S. Gh. Sere Me? Vee kane be dece Khe wee kien ea kee ees acqhia ue as 6

Massiah v. United States, 377 U.S. 201 (1964)....... See ee 75 20

Michigan v. Jackson, 475 U.S. .., 106 S. Ct.

pe We ee ee i a | Sa ne er ee ae a te

People v. Ferro, 92 A.D.2d 298, 460 N.Y.S.2

585 (1983), rev'd, 63 N.Y.2d 316, 472 N.E.2a

13, 482 N.Y.S.2d 237 (1984), cert. denied,

AT? US... SGOT CRMs ke ees xx La Eee Cah AK ed eek ae 10

People v. Ferro, 63 N.Y.2d 316, 323-24,

472 4.8.24 is, d7, @62:-Nc¥. 8.26 237, 242

(7908), Gare. Banton. O72 US.- 2607 CUSSS sh kc acanncacc ere ee ll

People v. Thompson, 107 Ill. App. 3d 285,

Q37 BWib.ao SHG (iSS2) 6 cise scs mixeresn is Sg eae SEC RS Cee a nt 8

Rhode Island v. Innis, 446 U.S. 291,

aun & Rat Gh.” |) ie eefeee ERR SREARESKRERARREEREAEDBEBEEEAEE EOD ewe 10

Tierney v. State, 404 So. 2d 206

CPLB. ABB. LHELbaancccccsscnacscncsess eee eT Eee eT CS eee Te

Toliver v. Gathright, 501 F. Supp. 148, 153

(E.D. Va. 2. | ee eee eee eeeeeee eee eee eeeeee ein ees 10

United States v. Criswell, 696 F.2d 636, 639

we a ee: fe KS RG CAO MAOK Whe ae Ee 10

United States v. Johnston, 268 U.S. 220,

RAT CASES R SKA SARK OK RR KS vckKe Ga taew es MR ER ee awa ee Sere a

Wainwright v. State, 504 A.2d 1096, 1102-03 (Del.),

Care. Genie, 107 S. Ce. 236 TESRR) cas cas Peer Tee ee ate 8

weethertare w. Borseay. G29 Wis. SES CEST) a cic oxen cdiccdcass 7

e

28 U.S.C. § 2254...... wees cbeeunecacenss we ececececcncces escces 3

Sup. CO. BR. Rev aseccnssncscnccacssecsncsanevessnceces Raney dad

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

No. 86-1936

EDWARD MURRAY, Director,

Virginia Department of Corrections,

Petitioner,

Vv.

ALBERT L. WILSON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR ALBERT L. WILSON IN OPPOSITION

Albert L. Wilson ("Wilson") respectfully requests that

the Petition for Certiorari filed by Edward Murray, Director,

Virginia Department of Corrections ("the Commonwealth') be de-

nied.+/

STATEMENT OF THE CASE

On February 8, 1981, Wilson was arrested by the

Norfolk, Virginia police pursuant to an arrest warrant charging

nim with robbery, burglary, murder and abduction. Upon

Wilson's arrest, Detective L. W. Hemenway sought to interrogate

him. Hemenway presented Wilson with a Legal Rights Advice Form

1/ Wilson concurs in the Commonwealth's report of the opin-

ions below, statement of jurisdiction, and designation of the

constitutional provisions involved. "J.A. " citations

refer to the Joint Appendix filed in the Court of Appeals. Ci-

tations to the opinions below are made by reference to the Pe-

tition appendix, la to 26a.

=; ee

which outlined Wilson's Miranda rights. Wilson acknowledged on

the Form that he understood those rights, but he refused to

waive the rights and refused to declare that any statement he

made would be "free end voluntary."

The parties dispute whether Wilson said anything fur-

ther that day .2/

It is, however, uncontroverted that Wilson

did not waive his right to counsel on February 8 and did not

make any inculpatory statement. In fact, on that date Wilson

adamantly refused to sign anything, including a form which

merely indicated that the police had not taken any of his per-

sonal property. a

Wilson remained in police custody after the February 8

interrogation. On either February 9 or February 10, Wilson was

taken to General District Court for his initial appearance.

There, consistent with his February 8 refusal to waive his

right to counsel, Wilson told the judge that he wished to be

represented by an attorney of his own choice and that he was

attempting to make arrangements to retain an attorney. Wilson

was returned to police custody after this court appearance.

During this same period the police arrested Vernon Lee

Sessoms for participation in the crimes of which Wilson was ac-

cused, and the police obtained a statement from Sessoms. Ac-

cording to Hemenway's testimony, Sessoms told the police that

Wilson would be willing to talk to the police once he knew that

the police had Sessoms in custody and that Sessoms had

Ps The Petition, in stating that Wilson "proceeded to disavow

any knowledge of the crime" and that Wilson never refused to

talk to the police, accepts as accurate Hemenway's testimony at

the state court suppression hearing. (J.A. 108-09). That tes-

timony, however, was contradicted by Wilson's testimony that

all he told the police on February 8 was that he did not want

to talk to them. (J.A. 122-23). The state court did not make

any finding or ruling which resoived this dispute. Hemenway's

version is not entitled to any presumption of correctness.

cooperated. By Hemenway's own testimony, it was for that rea-

son -- i.e., because the police thought they could get Wilson

to talk -- that the police returned to Wilson's cell on

February 10. (J.A. 109-10, 118). It is undisputed, and the

state trial judge expressly found, that the police initiated

this contact wholly on their own and that Wilson never con-

tacted the police to indicate any desire to talk to them.

According to Hemenway, when the police told Wilson they

had Sessoms in custody, Wilson said he did not believe them.

Wilson is not alleged to have said he wanted to see Sessoms,

but merely is alleged to have said he did not believe the po-

lice. Again, acting wholly on their own initiative, the police

removed Wilson from the Norfolk City Jail and took him to the

Detective Bureau, where they confronted him with Sessoms. Ac-

cording to Hemenway, Wilson then agreed to talk to the police,

and he gave a statement which admitted that he participated in

removing goods from the house where the robbery and burglary

occurred.

This incriminating statement was introduced into evi-

dence at Wilson's trial over the objections of Wilson's coun-

sel. The only other evidence at trial linking Wilson to the

crimes was testimony from one of Wilson's co-defendants.

Wilson was convicted of robbery and burglary and sentenced to

imprisonment for life plus twenty years.

After exhausting his state appellate and habeas corpus

remedies, Wilson filed a petition pursuant to 28 U.S.C. § 2254

in the United States District Court for the Eastern District of

Virginia, Norfolk Division, asserting that the state trial

court's failure to suppress his confession, which had been ob-

tained in violation of his right to counsel, violated his con-

Stitutional rights. Acting on a magistrate’s recommendation,

the District Court dismissed the petition. Wilson then ap-

pealed to the United States Court of Appeals for the Fourth

Circuit. A unanimous panel of the Court of Appeals reversed

the District Court and ordered that the writ of habeas corpus

should issue, holding that the admission into evidence of

Wilson's incriminating statement violated his rights to counsel

under the Fifth and Sixth Amendments. The Commonwealth filed a

petition for rehearing and suggestion for hearing en banc. No

member of the Court of Appeals requested a poll on the suqges-

tion for rehearing en banc, and the petition was denied. The

Commonwealth subsequently released Wilson from prison. The in-

Stant Petition followed.

ARGUMENT

THE COURT OF APPEALS CORRECTLY FOUND THAT WILSON'S CONFESSION

WAS OBTAINED IN VIOLATION OF HIS FIFTH AMENDMENT AND SIXTH

AMENDMENT RIGHTS TO COUNSEL AND SHOULD HAVE BEEN SUPPRESSED.

The Commonwealth acknowledges that the Court of Appeals

applied the correct standard in determining whether the confes-

sion should have been suppressed. This Court had established

that standard very recently in Michigan v. Jackson, 475 U.S.

’ » 106 S. Ct. 1404, 1411 (1986):

We thus hold that, if police initiate in-

terrogation after a. defendant's asser-

tion, at an arraignment or similar pro-

ceeding, of his right to counsel, any

waiver of the defendant's right to coun-

sel for that police-initiated interroga-

tion is invalid.

The Commonwealth asserts, however, that two of the elements of

that standard were not satisfied: The Commonwealth contends

that Wilson's actions at the initial appearance did not consti-

tute an assertion of his right to counsel and that the actions

of the police did not constitute interrogation.

The Commonwealth simply disagrees with the Court of Ap-

peals’ conclusion as to how che particular facts of this case

fit within the established standard. As this Court has long

recognized, it is not the function of certiorari to provide

such review of specific evidence and facts. See, e.g., United

States v. Johnston, 268 U.S. 220, 227 (1925). The decision by

the Court of Appeals was perfectly consistent with established

Fifth and Sixth Amendment law. The instant Petition falls far

short of justifying discretionary review under Sup. Ct. R. 17.

1. WILSON ADEQUATELY ASSERTED HIS RIGHT TO COUNSEL AT THE

INITIAL APPEARANCE.

The Commonwealth contends that Wilson's statement at

the initial appearance that he would retain his own counsel and

was attempting to arrange for such representation was inade-

quate to assert Wilson's right to counsel. The Commonwealth's

argument is that the right to counsel is only asserted when an

accused requests that counsel be appointed. That argument is

completely contrary to established Fifth and Sixth Amendment

doctrine and the reasoning underlying that doctrine.

When Wilson was taken from the jail to the initial ap-

pearance, he appeared in court as a defendant who was “faced

with the prosecutorial forces of organized society, and

immersed in the intricacies of substantive and procedural crim-

inal law.” Kirby v. Illinois, 406 U.S. 682, 689 (1972). Up

until that point, he had protected himself as well as he knew

how. He had refused to sign anything, including the innocuous

form indicating that the police had not taxen any property from

him. ’

At the initial appearance, Wilson was given an opportu-

nity to tell the Commonwealth that he did not want to deal di-

rectly with it any longer, but wanted the Commonwealth to deal

with him through the medium of counsel. See Michigan v.

Jackson, 106 S. Ct. at 1408-09 (citing Maine v. Moulton, 474

U.S. 159, __, 106 S. Ct. 477, 487 (1985)). Wilson did not

merely make a passing reference to counsel, but stated that he

would be represented by counsel thereafter and was attempting

to arrange for such representation. He did not waive his right

to counsel or indicate that he would be proceeding pro se, as

he could have done if he had wished to deal directly with the

Commonwealth.

The Commonwealth seeks to create an artificial distinc-

tion between an accused's statement that he wishes to have

counsel appointed and a statement that he wishes to be repre-

sented by counsel of his own choosing. Only if the accused is

indigent and has counsel appointed would the Commonwealth find

that the right to counsel attaches. This distinction is both

hypertechnical and irrational, as the two types of statement

equally demonstrate a desire to be represented by counsel in

future dealings with the State. In rejecting the Common-

wealth's argument, the Court of Appeals noted,

This rather strained argument cannot be

reconciled with the Supreme Court's deci-

Sion in Michigan v. Jackson, 106 S. Ct.

1405 (1986), where the Court rejected a

similar argument and indicated that de-

fendants' requests for counsel should be

construed broadly. We agree that an

uncounseled prisoner, untutored in law,

cannot be stripped of his constitutional

rights because of such technicalities. A

defendant's statement that he intends to

arrange representation is equivalent to a

request for an attorney.

4a. The distinction the Commonwealth urges would create a pre-

sumption in favor of finding a waiver of the right to counsel

by a defendant with retained counsel, whereas fundamental Fifth

and Sixth Amendment doctrine establishes a presumption against

waiver and requires the State to satisfy a heavy burden in

proving a waiver. See, e.g., Michigan v. Jackson, 106 S. Ct.

at 1409; Johnson v. Zerbst, 304 U.S. 458, 464 (1938). This

Court has always recognized that the right to counsel attaches

just as securely to a defendant who retains his own counsel as

to an indigent defendant for whom counsel is appointed. See,

e.g., Brewer v. Williams, 430 U.S. 387 (1977) (defendant with

retained counsel); Weatherford v. Bursey, 429 U.S. 545 (1977)

(same); Massiah v. United States, 377 U.S. 201 (1964) (same).

The Court of Appeals correctly concluded that Wilson

asserted his right to counsel. That conclusion is not in con-

flict with any decision by this Court or by any other Circuit.

This Court should not grant review of that conclusion.

2. THE POLICE SUBJECTED WILSON TO THE FUNCTIONAL EQUIVALENT

OF INTERROGATION.

Either on the day of Wilson's initial appearance in

court or the following day, and before Wilson had a chance to

retain and confer with counsel, the police, acting purely on

their own initiative, gratuitously undertook to advise Wilson

that they had his co-defendant Sessoms in custody, th:n trans-

ported Wilson to the Detective Bureau and confronted him with

Sessoms. As Detective Hemenway testified, the police took

these actions because Sessoms had indicated that Wilson would

talk with them once he knew that they had Sessoms in custody

and that Sessoms had cooperated with them. The only canceiv-

able purpose for these actions by the police was to obtain a

confession from Wilson, and the Commonwealth has never prof-

fered any other purpose. Indeed, to suggest that the police

had any other purpose, such as to allow Wilson and Sessoms to

renew their friendship, would be ludicrous.

The record does not clearly establish whether the po-

lice verbally questioned Wilson during this encounter.

(Compare J.A. 110-11, 118-19 with J.A. 123-27). Even if they

did not, however, they clearly engaged in the "functional

equivalent" of express questioning. The police may not circum-

vent the constitutional limitations on questioning by engaging

in its functional equivalent: “any words or actions on the part

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." Rhode

Island v. Innis, 446 U.S. 291, 301 (1980) (footnotes omitted).

The police not only should have known that confronting

Wilson with Sessoms was reasonably likely to elicit an incrimi-

nating response from Wilson, they did know such a response was

likely and they fully intended to elicit such a response. (See

J.A. 109-10, 118).

Confronting an accused with incriminating

evidence is a common and traditional way

of prompting 4 recalcitrant suspect to

confess. That it is also frequently an

effective tactic may be judged by the

volume of cases involving confessions so

induced. . .. Faced with evidence

indicating that the police already be-

lieve him to be guiity, an accused may

conclude that he has nothing to lose by

making a statement, or may fear that si-

lence will be taken as an admission of

guilt.

Toliver v. Gathright, 501 F. Supp. 148, 153 (E.D. va. 1980)

(footnotes omitted) (telling defendant about co-defendant's

Statement constituted functional equivalent of questioning);

see also Wainwright v. State, 504 A.2d 1096, 1102-03 (Del.)

(same holding), cert. denied, 107 S. Ct. 236 (1986); Tierney v.

State, 404 So. 2d 206 (Fla. App. 1981) (same holding); People

v. Thompson, 107 111. App. 3d 285, 437 N.E.2d 916 (1982)

(telling defendant of co-defendants' incriminating statements

,

and then, upon his expression of disbelief, taking defendant to

see co-defendant in custody, constituted interrogation).

The Commonwealth asserts that the recent decision in

Arizona v. Mauro, 107 S. Ct. 1931 (1987), compels a conclusion

that the police did not interrogate Wilson. This assertion

fails to recognize the fundamental differences between Mauro

and Wilson's circumstances. In Mauro, the suspect's wife, Mrs.

Mauro, was being questioned at the police station at the same

time that Mr. Mauro was being held there. Mrs. Mauro implored

the police offers to let her talk with her husband. The police

were reluctant to allow this contact to take place and counsel-

ed Mrs. Mauro not to speak to her husband, but finally gave in

to Mrs. Mauro's continued entreaties. This contact between

spouses led to the statement which was in issue.

This Court expressly neted, in finding that the police

had not interrogated Mr. Mauro, “There is no evidence that the

officers sent Mrs. Mauro in to see her husband for the purpose

of eliciting incriminating Statements.” Id. at 1936 (emphasis

added). Rather, the police reluctantly yielded to the entreat-

ies of a distraught wife who wanted to see her husband. By

contrast, the admitted purpose and the only conceivable purpose

for the Norfolk police to confront Wilson with Sessoms was to

induce Wilson to talk with them. Sessoms was not a spouse who

wanted to talk with a spouse about the fate of their child, but

was a co-defendant whose presence in jail and cooperation with

the police would convince Wilson that he might as well talk

with the police. The police's ploy worked exactly as planned,

according to their purpose.

This Court noted in Mauro that there was good reason to

“doubt that a suspect, told by officers that his wife will be

allowed to speak to him, would feel that he was being coerced

to inceininate himself in any way." Id. The Commonwealth

speculates that Wilson similarly would have felt no coercion

when confronted with Sessoms. Such speculation runs completely

counter to common sense and traditional police tactics for

coercing statements, as noted in Toliver v. Gathright, supra.

Sessoms and the police analyzed Wilson's likely perceptions and

predicted that Wilson would feel coerced by Sessoms’ presence.

That prediction proved accurate, and there is no basis for

second-guessing it now. 2/

In addition, the focus on the perceptions of the sus-

pect, while appropriate in a Fifth Amendment case like Mauro,

is inapplicable to the extent the Court of Appeals' decision

rests on the Sixth Amendment.

Once the sixth amendment right to counsel

attaches, law enforcement authorities

cannot “deliberately elicit” incriminat-

ing statements from the accused in the

absence of counsel. Massiah v. United

States, 377 U.S. [201] at 206, 84 S. Ct

[1199] at 1203 ((1964)]. To determine

whether the authorities “deliberately

elicited” a statement, courts look pri-

marily to the intent of the police.

[footnote] This is in contrast to the

fifth amendment right to counsel inquiry.

United States v. Criswel!l, 696 F.2d 636, 639 & n.7 (8th Cir.

1983). As previously noted, the intent of the police here was

to elicit a statement from Wilson.

The other case the Commonwealth cites on the issue of

what constitutes interrogation, People v. Ferro, 92 A.D.2d 298,

460 N.¥.S.2d 585 (1983), provides even less support to the Com-

monwealth’s argument. The Commonwealth neglects to tell the

Court that this decision by the New York Supreme Court,

3/ Even if there were a factual basis for speculating that

Wilson did not feel coerced, that would not be disnositive. In

Mauro, the Court cited Rhode Island v. Innis, 446 U.S. at 301,

as “suggesting that the suspect's perspective may be relevant

in some cases »in determining whether police actions constitute

interrogation.” 107 S. C . at 1936 (emphasis added). The

cited passage from Innis goes on to note that the intent of the

police is also relevant and applies the element of police in-

tent to the objective standard: “In particular, where a police

practice is designed to elicit an incriminating response from

the accused, it is unlikely that the practice will not also be

one which the police should have known was reasonably likely to

have that effect." 446 U.S. at 301 n.7.

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Appellate Division, was reversed by the Court of Appeals of New

York. See People v. Ferro, 63 N.Y.2d 316, 472 N.E.2d 13, 482

N.¥.S.2d 237 (1984), cert. denied, 472 U.S. 1007 (1985). In

reversing, the Court of Appeals of New York expressly found

that confronting the suspect with incriminating evidence did

constitute questioning. "Where. . . the only possible object

of the police action in revealing evidence to a defendant is to

elicit a statement from him, it does no violence to logic to

sonclude that the police should have known that it would do so

. ) aw Gt S2e>24, 472 N.E.2G at 17, 482 N.Y.S.2d at 241

(citations omitted).

The Commonwealth complains that the Court of Appeals

for the Fourth Circuit did not explicitly address this issue in

its written decision. At oral argument, the Court of Appeals

engaged counsel for the Commonwealth in a lengthy colloquy on

this issue and gave full consideration to counsel’s arguments.

In thereafter simply stating in the written decision its con-

clusion that Wilson was, in fact, interrogated (4a, 9a-10a),

the Court of Appeals gave the Commonwealth's argument precisely

the weight it deserves. This Court should not give this argu-

ment any further consideration.

CONCLUSION

The instant Petition utterly fails to satisfy the stan-

dard established in Sup. Ct. R. 17 as to when this Court will

exercise its discretion to grant a writ of certiorari. The

Court of Appeals correctly applied the decisions of this Court

,

and of the other Courts of Appeal. The Petition should be de-

nied.

Respectfully submitted,

. cee -

Wate. J - Beale

* Martin J. Barrington

Donald L. Creach

HUNTON & WILLIAMS

P. O« Boxe i535

Richmond, Virginia 23212

(804) 788-8759

* Counsel of Record

July 2, 1987

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