# Opposition Brief — Murray v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0332%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 484 U.S. 870 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING, IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED, A > GRIGHEAL > See tae, RE BO we creer Aces veut: a mere, 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 Paqde 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. -10- 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 -12- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0332%3A2. Public record. Not legal advice.