Petition for Writ of Certiorari — Dugger v. Christopher

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Supreme Court, U.S,

FILED

OCT 29 Da

JOSEPH F. SPANIOL, JR,

IN THE SUPREME COURT OF THE UNITED branes CLERK

i Se

87 718

Case No.

erm

October Term, 1987

RICHARD L. DUGGER, Secretary, Florida

Department of Corrections,

Petitioner,

WILLIAM D. CHRISTOPHER,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COUR’ OF APPEALS

FOR THE ELEVENTH CIRCUIT

AND APPENDIX

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL, STATE OF FLORIDA

KATHERINE V. BLANCO

PEGGY A. QUINCE

Assistant Attorneys General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

JOSEPH P. D‘ALESSANDRO

STATE ATTORNEY

DONALD E. PELLECCHIA

Assistant State Attorney

Twentieth Judicial Circuit

State of Florida

QUESTIONS PRESENTED FOR REVIEW

(1) DID THE ELEVENTH CIRCUIT

COURT OF APPEALS MISAPPLY

MICHIGAN V. MOSLEY, 423 U.S.

96, 96 S.Ct. 321, 46 L.Ed.2d

313 (1975), IN IMPOSING A NEW

AND UNJUSTIFIED LIMIT ON

POLICE CONDUCT BY REQUIRING

THE POLICE TO COMPLY WITH

EDWARDS V. ARIZONA, 451 U.S.

477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981), WHERE

THERE HAD BEEN NO EDWARDS

REQUEST FOR COUNSEL.

(2) AFTER A SUSPECT HAS

INVOKED HIS RIGHT TO REMAIN

SILENT, DOES THE CONSTITUTION

PROHIBIT A NON-INTERROGATORY

DISCUSSION ABOUT EXTRADITION

AS A ROUTINE INCIDENT OF THE

CUSTODIAL RELATIONSHIP.

(3) WHETHER THE LOWER COURT

ERRED IN FAILING TO APPLY THE

PRESUMPTION OF CORRECTNESS

REQUIRED BY 28 U.S.C. §2254(d)

TO THE STATE COURT'S FACTUAL

FINDING THAT THE DEFENDANT DID

NOT EXERCISE HIS RIGHT TO

REMAIN SILENT.

(4) WHETHER A FEDERAL DISTRICT

COURT'S FINDING OF FACT, WHILE

PRESIDING IN HABEAS CORPUS

REVIEW, IS SUBJECT TO THE

CLEARLY ERRONEOUS STANDARD OF

RULE 52(a) OF THE FEDERAL

RULES OF CIVIL PROCEDURE.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL AND STATUTORY

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

PAGE NO.

iii

PROVISIONS

TABLE OF AUTHORITIES

Anderson v. City of Bessemer,

470 U.S. 564, 105 S.Ct. 1504,

84 L.Ed.2d 518 (1985)

Christopher v. Florida,

PAGE NO.

456 U.S. 910, 72 L.Ed.2d 169 (1982)

Christopher v. State,

407 So.2d 198 (Fla. 1981),

cert. denied, 456 U.S. 910,

72 L.Ed.2d 169 (1982)

Christopher v. State,

416 So.2d 450 (Fla. 1982)

Christopher v. State,

582 F.Supp. 633

(S.D. Fla. 1984)

Christopher v. State,

824 F.2d 836 (llth Cir. 1987)

Crespo v. Armontrout,

818 F.2d 684 (8th Cir. 1987)

Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880,

68 L.Ed.2d 378 (1981) i, 17,

Kuhlman v. Wilson,

91 L.Ed.2d 364, 477 U.S. __,

106 S.Ct. _—s« (1986) 43,

LaVallee v. DelleRose,

410 U.S. 690, 35 L.Ed.2d 637,

93 S.Ct. 1203 (1973)

Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321,

46 L.Ed.2d 313 (1975) i, 17,

-iii-

19,

45,

18,

16,

20,

46,

43,

19,

Miller v. Fenton,

474 U.S. 104, 106 S.Ct. 445,

88 L.Ed.2d 405 (1985)

Miranda v. Arizona,

364 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694

(1966) 22, 33, 35, 38,

Oregon v. Bradshaw,

462 U.S. 1039, 103 S.Ct. 2830,

77 L.Ed.2d 405

(1983) 19, 20, 23, 24,

Patton v. Yount,

467 U.S. 1025, 81 L.Ed.2d 847,

104 S.Ct. 2885 (1984)

Rhode Island v. Innis,

446 U.S. 291, 100 S.Ct. 1682,

64 L.Ed.2d 297 (1980)

Robinson v. Pearcy,

738 F.2d 214 (7th Cir. 1984)

Smith v. Illinois,

469 U.S. 91, 83 L.Ed.2d 488,

105 s.ct. 490 (1984)

Solem v. Stumes,

465 U.S. 638, 105 S.Ct. 1338,

79 L.Ed.2d 579 (1984)

Sumner v. Mata,

449 U.S. 539, 66 L.Ed.2d 722,

101 S.Ct. 764 (1981)

United States v. Taylor,

799 F.2d 126 (4th Cir. 1986)

cert. denied, 107 S.Ct. 1308,

94 L.Ed.2d 162 (1987

-iv-

42,

39,

22,

Wainwright v. Goode,

464 U.S. 78, 78 L.Ed.2d 187,

104 S.Ct. 378 (1983) 48, 50

Wyrick v. Fields,

9 U.S. 42, 74 L.Ed.2d 214,

103 S.Ct. 394 (1982) 35

OTHER AUTHORITIES:

28 Beebe

§ 2254 (d) i, 3, 41, 43, 46, 47, 48

Rule 52(a), Fed. R. Civ. P. i

-Yyo

OPINIONS BELOW

The opinion of the court of apoveals,

Eleventh Circuit, is reported at

F.2d _—=(llth Cir. 1987) and appears in

the appendix as A 1-47. The opinion of ©

the Florida Supreme Court on direct appeal

is reported as Christopher v. State, 407

So.2d 198 (Fla. 1981), cert. denied, 456

U.S. 910, 72 L.Ed.2d 169 (1982). The.

opinion of the district court is reported

in Christopher v. State, 582 F.Supp. 633

(S.D. Fla. 1984).

JURISDICTIONAL STATEMENT

The judgment of the Eleventh Circuit

Court of Appeals was entered on July 23,

1987. A petition for rehearing was timely

filed and denied on September 3, 1987.

This Court's jurisdiction is invoked pur-

Suant to 28 U.S.C. §1254(1).

CONSTITUTIONAL

AND

STATUTORY PROVISIONS—INVOLVED

The Fifth Amendment to the United

States Constitution provides:

No person shall be held to answer

for a capital, or otherwise in-

famous crime; unless on a pre-

sentment or indictment of the

grand jury, accepting cases aris-

ing in the land or naval forces,

Or in the malicia, when in actual

service in time of war or public

danger; nor shall any person be

subject for the same offense to

be twice put in jeopardy of life,

or limb; nor shall be compelled

in any criminal case to be a wit-

ness against himself, nor be de-

prived of life, liberty or pro-

perty, without due process of

law; nor shall private property

be taken for public use, without

just compensation.

The Fourteenth Amendment to the Uni-

ted States Constitution provides, inter

alia:

No state shall make or enforce

any law which shall abridge the

privileges or immunities of citi-

zens of the United States; nor

shall any state deprive = any

person of life, liberty, or pro-

perty without due process of law;

nor deny to any person within its

jurisdiction the equal protection

of the laws.

Title 28 U.S.C. §2254(d) provides

that:

(d) In any proceeding instituted

in a Federal court by an applica-

tion for a writ of habeas corpus

by a person in custody pursuant

to the judgment of a State court,

a determination after a hearing

on the merits of a factual issue,

made by a State court of compe-

tent jurisdiction in a proceeding

to which the applicant for the

writ and the State or an officer

Or agent thereof were parties,

evidenced by a written finding,

written opinion, or other reli-

able and adequate written

indicia, shall be presumed to be

correct, unless the applicant

shall establish or it shall

otherwise appear, or the respon-

dent shall admit--

(1) that the merits of the

factual dispute were not

resolved in the State court

hearing;

(2) that the factfinding

procedure employed by the

State court was not

adequate to afford a full

and fair hearing;

(3) that the material facts

were not adequately deve-

«3~

loped at the State court

hearing;

(4) that the State court

lacked jurisdiction of the

subject matter or over the

person of the applicant in

the State court proceeding;

(5) that the applicant was

an indigent and the State

court, in deprivation of

his constitutional right,

failed to appoint counsel

to represent him in the

State court proceeding;

(6) that the applicant did

not receive a full, fair,

and adequate hearing in the

State court proceeding; or

(7) that the applicant was

otherwise denied due

process of law in the State

court proceeding;

(8) or unless that part of

the record of the State

court proceeding in which

the determination of such

factual issue was made,

pertinent to a determina-

tion of the sufficiency of

the evidence to support

such factual determination,

is produced as provided for

hereinafter, and the

Federal court on ae con-

sideration of such part of

the record as a whole con-

Cludes that such factual

determination is not fairly

Supported by the record:

And in an evidentiary hearing in

the proceeding in the Federal

court, when due proof of such

factual determination has_ been

made, unless the existence of one

Or more of the circumstances res-

pectively set forth in paragraphs

numbered (1) to (7), inclusive,

is shown by the applicant, other-

wise appears, or is admitted by

the respondent, or unless’ the

court concludes pursuant to the

provisions of paragraph numbered

(8) that the record in the State

court proceeding, considered as a

whole, does not fairly support

such factual determination, the

burden shall rest upon the appli-

cant to establish by convincing

evidence that the factual deter-

mination by the State court was

erroneous.

STATEMENT OF THE CASE

Ten years ago, in the summer of

1977, Respondent, William Christo-

pher, came to Naples, Florida to

visit his fourteen-year old illegi-

timate daughter, Norma. Norma lived

with her adoptive mother, Bertha

Skillen and Mrs. Skillen's boyfriend,

George Ahern. Soon after his arrival

in Naples, Christopher and his

fourteen-year old daughter became

lovers and they secretly planned to

leave Naples together and return to

Christopher's home in Memphis,

Tennessee. On August 30, 1977, Norma

and Christopher packed their

suitcases, hid them under Norma's bed

and planned on leaving for Memphis

the following day. On August 3lst,

while Norma ee at school, Mrs.

Skillen apparently discovered

Christopher's plan and Christopher

-6-

shot and killed Mrs. Skillen and hid

her body in the bathroom. Christ-

opher then waited for Mr. Ahern to

return home so that he could borrow

$300 to finance his trip back to

Memphis. Christopher accompanied

Ahern to the bank in order to obtain

the money; and, when they returned to

the apartment, Christopher shot Mr.

Ahern twice, killing him.

Christopher fled the State of

Florida, taking with him his

fourteen-year old daughter.

Christopher was arrested = at

11:30 p.m. on September 21, 1977 in

Memphis, Tennessee, pursuant to the

Florida warrant for murder. The

Florida authorities were notified of

the arrest and on September 22, 1977,

Lt. Mills and Officer Young, the

Florida officers in charge of the

murder investigation, went to Memphis

where they interviewed fourteen-year

Old Norma during the afterncon and

then proceeded to interrogate

Christopher at approximately 7:30

p.m. that evening. Christopher was

brought to the police captain's

office for the interview. Present in

the office were the two Florida

officers and three members of the

Memphis Police Department. The

officers introduced themselves’ to

Christopher, explained their presence

and purpose, and advised Christopher

of his Miranda rights. Christopher

agreed to tape record the interview

and so, approximately five minutes

after the initial introductions, the

tape recorder was activated, the

officers again advised Christopher of

his Miranda rights and Christopher

proceeded to recount a “"“murder-

suicide" story, i.e. that Ahern

murdered Mrs. Skillen and then killed

himself. The tape recorded interview

lasted approximately one hour.

During the last few minutes of this

taped interview, Christopher made

three separate statements indicating

that he had nothing else to say if he

was being charged with both murders.

824 F.2d at 840; A-11; A-152-153; A-

158-160. Because the dialogue

continued, the following excerpt from

the conclusion of the first taped

statement is crucial to a resolution

of the issues presented in this

petition:

CHRISTOPHER:

i Well, look, I'm just con-

stantly telling lies, look,

I ain't got nothing to say

at all, pete, why I have,

you know, and that's it. I

ain't saying nothing else.

MILLS: Okay.

CHRISTOPHER:

That I'm charged with two

murders, -- is all I can

say.

MILLS:

Okay, this brings us up to

another point, which has

nothing to do with what

we're talking about. Ah,

we're here from Florida and

these warrants, these war-

rants are from Florida.

Which you know you have to

be extradited down there.

That can come abut several

different ways, you can sign

on whether you want --------

----- here. Ah, would you

sign a waiver and go back?

CHRISTOPHER:

MILLS:

When are you all taking me

back if I sign a waiver?

When?

CHRISTOPHER:

MILLS:

Yeah.

Ah -- possibly this week-

end. These things’ take

time, you know, even signing

a waiver, I think there's a

little legal mumble jumble

here ---

CHRISTOPHER:

MILLS:

YOUNG:

Right. If I don't sign, how

long do I got before you all

take me back?

Well, we'll go ahead and

initiate the ah, the pro-

ceedings, and ah, everhow

they progress well, as soon

as the proceedings are over,

then, we're going back down.

I can't say how long it will

-10-

be, it might take a week, I

don't know.

BOSWELL:

It's usually 30 to 60 days.

MILLS: Is that right?

CHRISTOPHER:

Can I ask one question?

MILLS: Sure.

CHRISTOPHER:

I mean, off with this thing

too?

MILLS: Sure.

YOUNG: You want it turned off?

CHRISTOPHER:

Huh-uh. I don't care. I

just, I just like to know --

(tape ends)

(A-158-160)

At that point the tape recorder was

turned off at Christopher's request. Dur-

ing the off-tape discussion, Christopher

inquired about possible charges against

his family members, he _ repeated his

murder-suicide story and, when he was con-

fronted with the fact that his version of

the events did not match the known facts

=lie

and there must be a logical explanation

for the murders, Christopher began a

lengthy narrative am beginning with his

daughter's birth and ending with his

confession to murdering both victims.

Christopher was asked to write out a

statement, but he declined to do _ so,

agreeing instead to tape record a second

statement. And so, at approximately 10:30

p.m., the tape recorder was turned on, the

officers again advised Christopher of his

Miranda rights and Christopher again con-

fessed to murdering both victims. And so,

there were three sets of statements

Christopher made to the police, the first

tape-recorded statement following two se-

parate readings of Miranda in which

Christopher recited a murder-suicide

story; the second, when Christopher asked

to go off the tape, questioned the

officers and subsequently narrated the

event beginning with his daughter's birth

-12<

and culminating with his confession; and

the third, a 19-minute taped summary of

his confession which preceded by another

set of Miranda warnings.

On May 10, 1978, Christopher filed a

Motion to Suppress his confessions (A-179-

181). A suppression hearing was held in

the trial court on May 19, 1978, in which

the testimony was presented from the two

Florida officers and the Memphis police

Captain present during the Tennessee

interview. At the conclusion of the

Suppression hearing, the trial court

announced that he had listened to _ the

actual tape recordings of the Tennessee

interview, found that Miranda had been

complied with and concluded that the

confessions were freely and voluntarily

made. (A-94-96)

All of Christopher's statements to

law enforcement were introduced at his

1978 trial. He was found guilty of two

=13-

counts of first degree murder and, on

November 13, 1978, the trial court

sentenced Christopher to death after

concluding that, under Florida law, two

aggravating factors were present: (1)

Christopher was previously convicted of

violent felonies, i.e. in 1972,

Christopher pled guilty to assault to

commit murder and attempted rape and (2)

that the murders were heinous, atrocious,

Or cruel. The trial court found no

mitigating factors’ and balancing the

aggravating the mitigating factors, as

required by Florida law, the trial court

found the aggravating circumstances

predominated and sentenced him to death.

The Florida Supreme Court affirmed

Christopher's convictions and sentences on

December 10, 1981, and rejected

Christopher's claim that the police failed

to honor his request to cut off

questioning, specifically finding no

até@u

evidence that the appellant exercised his

right to halt the interrogation. The

appellant continued his conversation with

the interrogating deputies of his own free

will.” Christopher v. State, 407 So.2d

198 (Fla. 1981).

On March 29, 1982, this Court denied

Christopher's petition for certiorari in

which he raised the following issue:

WHETHER DURING POLICE CUSTODIAL

INTERROGATION, A DEFENDANT HAS

INDICATED "IN ANY MANNER" HIS DE-

SIRE TO REMAIN SILENT (THUS IN-

VOKING HIS FIFTH AMENDMENT RIGHT

AGAINST SELF-INCRIMINATION) WHEN

HE SAID: (1) "THEN I'VE GOT NO-

THING ELSE TO SAY. IF YOU'RE AC-

CUSING ME OF MURDER, THEN TAKE ME

DOWN THERE;" (2) "I GOT NOTHING

ELSE TO SAY;" (3) “WHAT'S THE

NEED OF ME SAYING ANYTHING THEN."

Christopher v. Florida, 456 U.S. 910, 72

L.Ed.2d 169, 102 S.Ct. 1761 (1982), U.S.

S.Ct. Case No. 81-6172.

Pursuant to Fla. R. Crim. P. 3.850,

petitioner then moved the Florida trial

court for post-conviction relief.

Following the summary denial of his

=15-

motion, Christopher appealed to the

Florida Supreme Court. The Court affirmed

the denial of Christopher's post-

conviction motion in Christopher v. State,

416 So.2d 450 (Fla. 1982).

On June 22, 1982, having exhausted

his state remedies, Christopher filed for

habeas corpus’ relief with the United

States District Court for the Southern

District of Florida. The District Court

denied relief on March 13, 1984, in a

lengthy opinion published at Christopher

v. Florida, 582 F.Supp. 633 (S.D. Fla.

1984).

Christopher appealed the denial of

habeas corpus’ relief to the Eleventh

Circuit, and on July 23, 1987, rehearing

denied September 3, 1987, the Eleventh

Circuit reversed and remanded the case

with directions to the district court to

grant the writ of habeas corpus with

respect to both murder convictions,

-16<

conditioned upon the State's affording

Christopher a new trial. Christopher v..

State, 824 F.2d 836 (1987). The Eleventh

Circuit held that the admission of

Christopher's confessions violated

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct.

321, 46 L.Ed.2d 313 (1975) and concluded

that Christopher's confessions were

improperly obtained after Christopher

invoked his right to remain silent. In so

doing, the Eleventh Circuit failed to

presume correct the state court's

findings, refused to give due deference to

their own district court's findings of

fact on this issue, restricted police

officers "non-interrogatory conversation"

to such banal matters as whether’ the

Suspect wishes a glass of water and

imposed the requirements of Edwards v.

Arizona in a case where there had been no

Edwards request for counsel. Thus, by

prohibiting a non-interrogatory discussion

a} Fo

about extradition as a routine incident of

the custodial relationship and by imposing

the Edwards requirements to a case where

there had been no request for counsel, the

Eleventh Circuit has effectively over-

turned Michigan v. Mosley by applying a

principle of law to a situation not con-

templated or required by the previously

announced decisions of this Court.

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit Court of Appeals

has misapplied this court's decision in

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct.

321, 46 L.Fd.2d 313 (1975), to (1) require

that once a suspect has invoked his Fifth

Amendment right to remain silent, the

interrogating officers must restrict their

"non-interrogatory conversation" to such

banal matters as whether the suspect

wishes a glass of water and (2) by

imposing the strict requirements’ of

Béwards v. Arisona, 451 U.S. 877, i01

S.Ct. 1880, 68 L.Ed.2d 378 (1981), and

Oregon v. Bradshaw, 462 U.S. 1039, 103

S.Ct. 2830, 77 L.Ed.2d 405 (1983), both

right-to-counsel cases, where the suspect

never made any request for counsel.

Mosley recognizes that not all state-

ments or answers made by a suspect after

exercising the right to cut off question-

=-19-

ing are subject to suppression; the rele-

vant inquiry is whether under the circun-

stances the resumption of questioning was

consistent with the officer's scrupulous

observance of the defendant's right to cut

off questioning. Both Edwards v. Arizona

and Oregon v. Bradshaw apply to cases in

which a suspect has invoked his Fifth

Amendment right to counsel. In this case,

respondent, William Christopher, never in-

voked his right to counsel.

Notwithstanding the acknowledgment

that the right to counsel and right to

silence cases are distinguishable because

the right to silence is not protected by a

per se rule, compare Mosley, 423 U.S. at

101-04 and n.10, with Edwards, 451 U.S.

484-85, the Eleventh Circuit nevertheless

now applies the strict Edwards/Bradshaw

test to hold that when a suspect invokes

his Fifth _Amendment' right to’ remain

Silent, the suspect's post-request

responses are admissible only if the sus-

pect both initiated the dialogue and

waived his previously asserted right. 824

F.2d 844. The Eleventh Circuit now directs |

that the police must comply with the

Edwards standards even where there had

been no Edwards request for counsel.

Thus, by imposing the Edwards requirements

to a case where there had been no request

for counsel, the Eleventh Circuit has

effectively overturned Mosley by applying

a principle of law to a situation not con-

templated or required by the previously

announced decisions of this Court.

Initially, we are faced with the

query: Can a police officer continue to

converse, permissibly, with a suspect who,

during an interrogation, invokes his right

to remain silent? The answer is: of

course; they can engage in non-interroga-

tory conversation relating to routine

incidents of the custodial relationship

= >

without violating the dictates of Miranda

v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966).

The Eleventh Circuit Court of

Appeals, itself, in its opinion sub

judice, acknowledges:

". « « the police may terminate

an interrogation without falling

into total silence..."

824 F.2d at 845.

But, then, what are the parameters of

such a conversation, i.e. what are permis-

sible and impermissible subject matters?

In its opinion, the Eleventh Circuit

recognizes:

[T]he term ‘interrogation' under

Miranda refers not only to

express questioning, but also to

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. (emphasis

added)

824 F.2d 842, fn. 16, citing Rhode Island

v. Innis, 446 U.S. 291, 301, 100 S.Ct.

1682, 1689-90, 64 L.Ed.2d 297 (1980)

(footnotes omitted).

While recognizing that subject

matters routinely attendant to arrest and

custody do not constitute interrogation,

the Eleventh Circuit Court of Appeals con-

tinues:

Although the police may terminate

an interrogation without falling

into total silence, any discus-

sion with the suspect other than

that ‘relating to routine inci-

dents of the custodial relation-

ship' must be considered a con-

tinuation of the interrogation.

(emphasis added)

824 F.2d at 845, citing Bradshaw, 462 U.S.

at 1045, 103 S.Ct. at 2835.

What does the Eleventh Circuit Court

of Appeals mean by the phrase ‘relating to

routine incidents of the custodial rela-

tionship'? According to the Eleventh

Circuit, the officers may permissibly

inquire about a suspect's thirst but the

officers may not discuss extradition pro-

cedures with the suspect.

Specifically, the police may make

routine inquiries of a suspect

after he requests that they term-

inate questioning, such as

whether he would like a drink of

water. (emphasis added)

~23<

824 F.2d at 845, citing Bradshaw, 462 U.S.

at 1045, 103 S.Ct. at 2835.

The Eleventh Circuit's collateral

determination is far too restrictive and

impractical and contrary to this court's

precedent; it savontance judicial inspec-

tion of every routine, ministerial ques-

tion, and impedes the operation of neces-

Sary police administrative procedures

while not significantly increasing the

level of protection against improper

interrogation. United States v. Taylor,

799 F.2d 126 (4th Cir. 1986), cert.

denied, 107 S.Ct. 1308, 94 L.Ed.2d 162

(1987).

The central issue in this case

resolves itself into setting reasonable

parameters of the permissible scope of

conversation with a suspect after he has

terminated the interrogation. Here, the

extradition discussion was not subject to

serious debate by any of the prior review-

ing courts until the Eleventh Circuit

@24<

determined that the officer's conduct was

unscrupulous.

The defendant William D. Christopher

shot to death Bertha Skillen and George

Ahern in their Florida home. And, on

September 21, 1977, he was arrested in

Memphis, Tennessee, on a Florida warrant,

and interrogated by two Florida police

officers, Lieutenant Mills and Officer

Young, in the presence of three Memphis

police officers who did not actively take

part in the interview.

During that interrogation, the

Eleventh Circuit concluded, the defendant

invoked his right to remain silent and the

interrogating police officers failed to

"scrupulously honor" the defendant's right

to cut off questioning.

In so concluding, the Eleventh

Circuit overruled the United States

District Court which had _ previously

affirmed the Florida Supreme Court which

had, in turn, affirmed the trial court.

The trial court alone heard the testimony

at the motion to suppress hearing and lis-

tened to the actual tape-recorded conver-

Sations between the defendant and the

police officers before concluding that the

defendant, in fact, had not invoked his

right to remain silent.

How can the trial court, after hear-

ing the witnesses and the tape-recorded

conversations, conclude that the suspect

had not invoked his right to remain silent

when the Eleventh Circuit, reading the

transcripts, alone, found to the

contrary? The answer to this question may

be found in the transcript included in the

record before the Eleventh Circuit of the

Suppression hearing testimony of Officer

Mills who, on cross examination by defense

counsel, explained:

[Defense Counsel]: Q. Okay, I no-

ticed that at one point in the

statement towards the end there,

I think it's about, oh, three

-26-

pages from the end, that the de-

fendant makes -- says that he

doesn't want to say anything

else. But you went on and ques-

tioned him after that, did you

not?

A. I would have to see that to

know what portion you're talking

about.

Q. Bottom of page 16 there.

A. Yes, sir, I recall those. If

you listen to the tape on this,

you can tell that when he said

this, he just kept on talking.

Q. Okay.

A. There was no break in his con-

versation or anything, he -- he

-~ just made one statement right

after this. He said that I have

nothing else to say, and he just

kept right on talking.

Q. He went right on talking after

Young asked him another question?

A. It doesn’t show on the tran-

script, but if you listen to the

tape, there was actually some

comments by him between the time

-- while Young was making that

statement. They were actually

talking over each other; he kept

right on talking.

(R. 1272; A-88-89)

It is always a difficult matter for a

court reporter, who was not present, to

transcribe accurately from a recording of

a conversation with overlapping

speakers. In dealing with this legitimate

concern, one particularly described by

Officer Mills, the trial court actually

listened to the recording of the taped

interviews prior to ruling on the Motion

to Suppress. (R. 1297; A-94)

If, then, as Officer Mills testified,

the sequence of statements contained in

the transcript is an artificial sequence

created by the court reporter wrestling

with overlapping voices on the tape-

recording, such a finding would completely

undermine the Eleventh Circuit's rationale

in this case. At the very least, given

the apparent ambiguity, on a matter of

such importance, the Eleventh Circuit

should have presumed the correctness of

the trial court's finding, since the trial

court alone heard the actual tape-

recording. See, e.g., Robinson v. Pearcy,

=28-

738 F.2d 214, 219 (7th Cir. 1984) [Where

the record was ambiguous on whether the

questions asked by the police detective

during processing constituted interroga-

tion, the Court of Appeals concluded that

it must uphold the trial court's factual

findings absent clear error.]

Even assuming, arguendo, the

correctness of the transcript sequence

and, further, assuming, arguendo, that the

defendant invoked his right to remain

silent during the interrogation, and

assuming that the police failed to "scrup-

ulously honor" all but his last request to

end the questioning; what then? May not

the police comply with the dictates of

Mosley by legitimately apprising the

suspect of routine extradition procedures

following the suspect's invocation of his

right to remain silent and, when the sus-

pect himself reinitiates the dialogue,

cannot the officers respond to the

=99-

Suspect's reinitiation and continue the

dialogue?

The defendant's final request to end

the questioning at the end of the first

taped interview, and the officers'

response, is set forth by the Eleventh

Circuit in their opinion as follows:

CHRISTOPHER: Well, look, I'm just

constantly telling lies, look I

ain't got nothing to say at all,

Pete, why I have, you know, and

that's it. I ain't saying

nothing else.

MILLS: Okay.

CHRISTOPHER: That I'm charged

with two murders, ---, is all I

can say.

MILLS: Okay. This brings us up

to another int, which has noth-

ing to do atth what we're talking

about. [emphasis added] Ah,

we're here from Florida and these

warrants, these warrants are from

Florida. Which you know you have

to be extradited down there.

That can come about several dif-

ferent ways, you can sign on whe-

ther you want --- here. Ah,

would you sign a waiver and go

back?

CHRISTOPHER: When are you taking

me back if I sign a waiver? ...,

[short exchange -on-when taking

=30-

him back if he signs].

CHRISTOPHER: Right. Zi <= dent

sign, how long have I got before

you all take me back?

MILLS: Well, we'll go ahead and

initiate the ah, the proceedings,

and ah, everhow they progress,

well, as soon as the proceedings

are over, then, we're going back

down.

YOUNG: I can't say how long it

will be, it might take a week, I

don't know.

BOSWELL: It's usually 30 to 60

days.

MILLS: Is that right?

CHRISTOPHER: Can I ask one ques-

tion?

MILLS: Sure... .

(emphasis added) [824 L.Ed.2d at 843, fn.

20 (A-158-160).

Where is there any "“interrogation"

about the crime by the police in the fore-

going exchange? There is none. Where are

the questions, words or actions on the

part of the police that the police should

know are reasonably likely to elicit an

incriminating response from the suspect

=3l-

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

100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

There are none. On the contrary, there is

no "interrogation" at all but, rather, an

imparting of information by the police to

the accused: ministerial matters and

information which are normally attendant

to arrest and custody -- ministerial

Matters and information relating to

routine incidents of the custodial rela-

tionship.

Nevertheless, the Eleventh Circuit

concluded that the foregoing exchange con-

stituted a custodial interrogation after

the suspect invoked his right to terminate

questioning. And, armed with that con-

clusion, the Eleventh Circuit went on to

reason that the confessions following that

"interrogation" were tainted and mandated

the granting of habeas relief ten years

after the murders and confessions. The

Eleventh Circuit's opinion is a classic

syllogism built on a faulty premise.

The Eleventh Circuit's decision is

premised solely on its characterization of

the extradition discussion as an “interro-

gation", to wit:

Accordingly, we conclude that,

because the initial police-

initiated interrogation was still

in progress when Christopher

asked the question at issue this

question was not an ‘initiation';

rather, it was merely a question

posed during the course of an on-

going police-initiated interroga-

tion. Therefore, given that an

unlawfully continued police-inti-

tiated interrogation is not ren-

dered lawful simply because a

suspect asked a question, we

reject the State's argument and

hold the confession inadmissible.

824 L.Ed.2d at 846.

If the topic of extradition is not an

"interrogation", as the Eleventh Circuit

cnnctnebedeun ‘4%, -- if it is, instead,

permissible "“non-interrogatory conversa-

tion", not in violation of Miranda and its

progeny, then, the Eleventh Circuit's pre-

mise fails and so, too, must its conclu-

sion fail. The officers' actions in

o33-

advising Christopher of the routine proce-

dures associated with extradition were en-

tirely consistent with the "scrupulous ob-

servance"™ of Christopher's right to cut

off questioning. -

Why should the Eleventh Circuit's

grant of habeas relief be summarily

reversed if the extradition discussion is

not an “interrogation"? Because, at the

end of that exchange, -the defendant

Christopher reinitiates the dialogue when

he says:

CHRISTOPHER: Can I ask one ques-

tion?

en? tie. ee

(824 F.2d at 844, fn. 20; A-160)

And, it was after the defendant

Christopher so reinitiated the dialogue,

and continued asking not one but several

questions that he confessed to the murders

-- confessed, not once, but twice. And,

prior to his second confession, he was re-

Mirandized. His second confession, after

240

receiving and waiving renewed Miranda

warnings, was tape-recorded. Thus, assum-

ing the officers should be held to the

higher standards heretofore previously

applicable only in right-to-counsel cases,

not only did the continued interview with

Christopher satisfy the “initiation” prong

of the Edwards/Bradshaw test but

Christopher's | explicit tape-recorded

waiver at the commencement of the second

taped statement, which leaves nothing to

inference, satifies the "waiver" prong of

this test. Here, as in Wyrick v. Fields,

459 U.S. 42, 74 L.Ed.2d 214, 103 S.Ct. 394

(1982), the Court of Appeals has imposed a

new and unjustified restriction on police

questioning of a suspect who initiates

further dialogue and waives his previously

asserted Fifth Amendment rights.

In the case of Oregon v. Bradshaw,

462 U.S. 1039, 77 L.Ed.2d 405, 203 S.Ct.

2830 (1983), this Court held that the

=35-

defendant there reinitiated the question-

ing when he asked: "Well, what is going to

happen to me now?" And so, the Eleventh

Circuit does not dispute that the parti-

cular question asked by Christopher, i.e.

"Can I ask one question?", was sufficient

to reinitiate the questioning which led to

the confession. Instead, the Eleventh

Circuit applied the hybrid Edwards/

Bradshaw Rule formulated from right-to-

counsel cases to this’ right-to-silence

case in holding that the defendant

Christopher could not have "reinitiated"

the questioning because the police

persisted in interrogating him after he

sought to cut off questioning at an

earlier point in tine. By virtue of its

opinion, the Eleventh Circuit is now

announcing that police officers must

comply with Edwards despite the fact that

there had been no Edwards request for

counsel. Contrary to Solem v. Stumes, 465

=36-

U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579

(1984) the Eleventh Circuit is directing,

on collateral review, that Christopher's

1978 trial must be relitigated based on a

stricter standard announced three years

after Christopher's trial and previously

found applicable only in right-to-counsel

cases even where Christopher did not

request counsel.

In granting habeas relief, the

Eleventh Circuit devoted a significant

portion of its opinion to- whether

Christopher onftioientis invoked his right

to remain silent prior to the quoted ex-

change involving extradition. Prior

courts, in this cause, had held that the

defendant had not exercised his right to

halt the interrogation, but the Eleventh

Circuit disagreed. Such a conclusion,

even if it were accurate, would not

further the inquiry here because nothing

said by the defendant Christopher prior to

=37=

the discussion about extradition was

incriminating; and so, it does not matter,

for our purposes here, if the defendant

sufficiently invoked his right to silence

prior to the exchange concerning extradi-

tion.?

The characterization of the conversa-

tion concerning extradition is all impor-

tant in the resolution of the case sub

judice because if it is a "non-

interrogatory conversation,” then, the de-

fendant Christopher's confessions, one or

both of them, are admissible because

Christopher reinitiated the dialogue, he

confessed following his own narrative of

the events beginning with his daughter's

birth and, in addition, received Miranda

1/ Even if the post-request statements

under Smith v. Illinois 469 U.S. 91, 83

L.Ed.2d 488, 105 S.Ct. 490 (1984) may not

be used to cast retrospective doubt on the

clarity of a request [for counsel], the

suspect's subsequent statements are

relevant on the question of waiver. 83

L.Ed.2d at 496.

-38-

warnings anew prior to the second taped

statement and second confession.

The Eleventh Circuit's narrow inter-

pretation of the permissible scope of a

"non-interrogoatory conversation" follow-

ing a suspect's invocation of his right to

remain silent is impractical and contrary

to Miranda and its progeny.

While the Eleventh Circuit grants

that "routine inquiries" may be made by

police after they terminate questioning,

their direct routine inquiries must be

limited to such banalities as ". . .

whether he would like a drink of water."

824 F.2d at 845, citing Bradshaw, 462 U.S.

at 1045, 103 S.Ct. at 2835.

In using the analogy concerning the

"drink of water" the Eleventh Circuit mis-

construead Bradshaw, supra, where’ the

phrase was used as an example of the kind

of phrase which would not be interpreted

as a suspect or police reinitiating ques-

-39-

tioning. It had nothing whatsoever to do

with the scope of the non-interrogatory

conversation by a police officer. Speci-

fically, Bradshaw says:

Such inquiries or statements, by

either an accused or a police

officer, relating to routine

incidents of the custodial rela-

tionship, will not generally

‘initiate’ a conversation in the

sense in which that word was used

in Edwards.

Bradshaw, 462 U.S. at 1045, 77 L.Ed.2d at

412.

Surely the police must be able to

discuss matters which are routine inci-

dents of the custodial relationship other

than the suspect's thirst. The police

must be able to discuss’ ministerial

matters which are normally attendant to

arrest and custody, such as extradition

procedures and time frames involved in

those procedures. The discussion regard-

ing extradition is inherently ministerial

and does not violate Miranda.

In short, then, when the defendant

-40-

Christopher reinitiated the questioning

(and he did so if the extradition exchange

was a "“non-interrogatory conversation"),

then, habeas relief should have been

denied on this ground if either of the de-

fendant's subsequent confessions’ were

voluntary; and, since the Eleventh Circuit

did not even reach the issue of voluntari-

ness, summary reversal is mandated.

Absent from the Eleventh Circuit's

resolution of this issue is whether the

presumption of correctness mandated by 28

U.S.C. §2254(d) applies to the state

court's finding that Christopher did not

exercise his right to halt the interroga-

tion and continued his conversation with

the deputies of his own free will. The

Eleventh Circuit merely announced that the

Florida Supreme Court incorrectly treated

the right to cut off questioning claim as

if it were a voluntariness claim; and, in

support of their conclusion, the Eleventh

o4l<

Circuit relied solely on the fact that the

Florida Supreme Court did not cite to

Miranda v. Arizona in their opinion, 824

F.2d at 839, fn.9. The Eleventh Circuit's

criticism of the Florida Supreme Court's

treatment of this issue cannot stand in

light of the Florida Supreme Court's

explicit reference to Christopher's claim,

i.e. "Did the trial court err in admitting

appellant's confession because (a) he did

not freely and voluntarily confess, and

(b) the police failed to honor his request

to cut-off questioning, in violation of

the Fifth and Fourteenth Amendments to the

United States Constitution, and article I,

section 9, of the Florida Constitution?;

407 So.2d at 200; and the Florida Supreme

Court's finding: "[T]Jurning to the second

issue, the admissibility of the

confession, we find no evidence that the

appellant exercised his right to halt the

interrogation. The appellant continued

-42-

his conversation with the interrogating

deputies of his own free will." (407 So.2d

at 200, A-58).

Section 2254(d)'s presumption of cor-

rectness applies to subsidiary findings

underlying a state court's resolution of

the question of voluntariness. Miller v.

Fenton, 474 U.S. 104, 106 S.Ct. 445, 88

L.Ed.2d 405 (1985). In the confession

context, subsidiary questions such as whe-

ther the police engaged in intimidation

tactics as alleged by the defendant,

LaVallee v. DelleRose, 410 U.S. 690, 35

L.Ed.2d 637, 93 S.Ct. 1203 (1973) and

whether the police "deliberately elicited”

incriminating statements as in Kuhlman v.

Wilson, 91 L.Ed.2d 364, 477 U.S. __, 106

S.Ct. _ _ =(1986) are entitled to the

presumption of correctness mandated by 28

U.S.C. §2254(d). |

The Eleventh Circuit has failed to

presume correct the state court's factual

-43-

resolution, i.e., that a defendant doesn't

exercise his right to halt an interroga-

tion by simultaneously continuing to speak

and the Eleventh Circuit has failed to

give due deference to its own district

court's conclusion that petitioner's claim

was unsubstantiated by the record. Rule

52(a), Federal Rules of Civil Procedure

directs that the district court's findings

of fact shall not be set aside unless

clearly erroneous. Anderson v. City of

Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84

L.Ed.2d 518 (1985). In ruling on this

claim, District Judge King stated that he

“carefully reviewed the transcript of the

petitioner's taped confession, the

suppression hearing, and the testimony of

the officers involved in obtaining the

confession." 582 F.Supp. 643; A-50-51l.

Judge King found "that the second proag of

petitioner's claim, that Officers Mills

and Young failed to scrupulously honor

[Christopher's] right to cut off the

interrogation is simply unsubstantiated by

the record." 582 F.Supp. 643, A-5l.

Further, the District Judge found that "at

one point [Christopher] indicated he

wished to stop and the police officer

honored his request” (i.e., by ceasing the

interrogation and advising Christopher of

the procedures of extradition). See, 582

F.Supp. 643, A-51-52. Because the

District Judge's determination is. not

clearly erroneous, the Eleventh Circuit's

failure to apply Rule 52(a) merits summary

reversal.

In Kuhlman, supra, this Court found

clear error on the part of the circuit

court in failing to accord the presumption

of correctness mandated by 28 U.S.C.

§2254(d); Patton v. Yount, 467 U.S. 1025,

81 L.Ed.2d 847, 104 S.Ct. 2885 (1984);

Sumner v. Mata, 449 U.S. 539, 66 L.Ed.2d

722, 101 S.Ct. 764 (1981). In Kuhlman,

-45-

this Court stated:

Without holding that any of the

state court's findings were not

entitled to the presumption of

correctness under section

2254(d), the court of appeals

focused on that one remark and

gave a description of Lee's

interaction with respondent that

is completely at odds with the

facts found by the trial court. .

. After thus revising some of the

trial court's findings, and

ignoring other more~ relevant

findings, the court of appeals

concluded that the police "deli-

berately elicited” respondent's

incriminating statements. This

conclusion -conflicts with the

decision of every other state and

federal judge who reviewed this

record, and is clear error in

light of the provisions and

intent of §2254(d)..

91 L.Ed.2d at 385.

Here, as in Kuhlman, it is readily

apparent that the decision of the Eleventh

Circuit in this case has failed to apply

the standard by which a circuit court of

appeals may disregard a finding of fact

made by the state court pursuant to Title

28 U.S.C. §2254(d). The Eleventh Circuit

o§6-

rejected the state court's findings, not

because they were clearly erroneous, nor

because there was no support in the

record, nor because it was a mixed ques-

tion of law and fact, but because it dis-

agreed with the prior reviewing courts.

Whether the police honored the defendant's

request to cut off questioning was no less

a factual determination here than whether

the police engaged in intimidation tactics

as alleged in DelleRose or whether the

police "deliberately elicited the defen-

dant's statements" as in Kuhlman. See

also, Crespo v. Armontrout, 818 F.2d 684

(8th Cir. 1987) [§2254(d)'s state court's

presumption of correctness applies to the

state court's implicit finding that defen-

dant never invoked right to counsel before

making oral statements].

The Eleventh Circuit disagreed be-

cause it found record support for its fac-

tual conclusions; thus, certiorari is man-

dated in order for this Court to once

again instruct that a federal court may

not reject a state court's’ factual

findings simply because it finds’ record

support for a contrary conclusion.

Wainwright v. Goode, 464 U.S. 78, 78

L.Ed. 24 187, 104 S.Ct. 378 (1983) Accord-

ingly, this case calls for summary rever-

sal.

Under 28 U.S.C. §2254(d) (8), the fed-

eral court, in ruling on a petition for

writ of habeas corpus, may not overturn a

factual conclusion of the state court un-

less the conclusion is not "fairly sup-

ported by the record". This rule applies

equally to findings of trial courts and

appellate courts, Wainwright v. Goode, 464

U.S. 78, 78 L.Ed.2d 187 at 193, 104 S.Ct.

378 (1983). Here, the state trial court

listened to the tape of Christopher's

statements and was ‘not persuaded that

Miranda had been_ violated. (R. 1297-1298,

-48-

A-95-96) The Supreme Court of Florida

found "no evidence that the appellant

exercised his right to halt the interroga-

tion. The appellant continued his conver-

sation with the interrogating deputies of

his own free will." 407 So.2d at 200. On

federal habeas review,-—the district court

likewise concluded that Christopher's

claim that the police officers failed to

scrupulously honor his right to cut off

interrogation was "simply unsubstantiated

by the record. The transcript of the con-

fession shows that although petitioner in-

dicated he would not continue, he in fact

did continue to talk." Christopher v.

State, 582 F.Supp. at 643, citing R. 1177,

1260. Consequently, all of the reviewing

courts have previously concluded from

their review of the record that

Christopher did not exercise his right to

halt the interrogation and continued to

speak of his own free will. A three

-49-

member panel of the Court of Appeals for

the Eleventh Circuit, on the other hand,

refused to presume correct the state

court's findings or give due deference to

the findings of their own district

judge. Because the state trial court's,

appellate court's and federal district

court's conclusions find fair support in

the record, the Court of Appeals erred in

substituting its view of the facts for

those of the prior reviewing courts.

Wainwright v. Goode, 78 L.Ed.2d at 193.

-50-

CONCLUSION

For these reasons Petitioner respect-

fully urges this Court to grant Certiorari

and reverse the holding of the Eleventh

Circuit Court of Appeals.

Respectfully submitted

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

KATHERINE V. BLANCO

Assistant Attorney General

PEGGY A. QUINCE

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL OF RECORD FOR PETITIONER

«8i-

CERTIFICATE OF SERVICE

I, PEGGY A. QUINCE, Counsel for

Petitioner, and a member of the Bar of the

United States Supreme Court, hereby

certify that on the day of October

1987, I served three copies of the

Petition for Writ of Certiorari on THOMAS

R. BOLF, Esquire, Post Office Box 1900,

Fort Lauderdale, Florida 33302, Attorney

for Petitioner, and to the OFFICE OF THE

CAPITAL COLLATERAL REPRESENTATIVE,

Independent Life Building, 225 Ww.

Jefferson St., Tallahassee, Florida 32301,

by a duly addressed envelope with postage

prepaid.

OF COUNSEL FOR PETITIONER

=52-

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1987

No.

STATE OF FLORIDA,

Petitioner,

Vv.

WILLIAM D. CHRISTOPHER,

Respondent.

PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPENDIX OF PETITIONER

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

PEGGY A. QUINCE

KATHERINE V. BLANCO .

Assistant Attorneys General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

TABLE OF CONTENTS

PAGE NO.

Opinion of the Eleventh Circuit

Case No. 84-5521 and 5220, rendered

July 23, 1987, rehearing denied,

September 3, 1987. A-1

Excerpts from Order of

United States District Court,

Midéle District, Florida

Case No. 82-1293-Civ-JLK,

rendered March 13, 1984. A-48

Excerpts from Opinion of

Florida Supreme Court,

Case No. 55,698,

rendered December 10, 1981. A-56

Excerpts from Motion to

Suppress Hearing held

May 19, 1978, Collier County

Circuit Court. A-60

Trial Court's Findings following

hearing on Motion to Suppress,

Circuit Judge Charles T. Carlton,

Transcript of taped interview with

Christopher commencing 7:36 p.m.,

September 22, 1977 A-97

Transcript of taped interview with

Christopher commencing 10:25 p.m.,

September 22, 1977 A-161

Motion to Suppress, filed in

the trial court May 10, 1978. A-179

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 84-5521

and 85-5220

WILLIAM D. CHRISTOPHER,

Petitioner-Appellant,

versus

STATE OF FLORIDA,

Respondent-—Appellee.

Appeals from the United States

District Court for the Southern

Discrict of Florida

(July 23, 1987)

Before GODBOLD, KRAVITCH and HATCHETT,

Circuit Judges.

KRAVITCH, Circuit Judge:

William D. Christopher, a Florida

prisoner under sentence of death, appeals

the denial by the district court of his

petition for habeas corpus and also the

denial of his motion for relief from the

judgment filed pursuant to Rule 60(b),

Fed. R. Civ. P. We hold that petitioner

is entitled to habeas relief.

Accordingly, we reverse.

I. BACKGROUND

Bertha Skillin and George Ahern were

shot to death in their Florida home.

Christopher, who had been living in the

home of the couple with his teenage

daughter, Norma Sands, up through the day

of the murder, was arrested September 21,

1977,2 in Memphis, Tennessee, on a Florida

warrant. Norma, and Christopher's half-

brother and half-sister, Pete and Pam

Scott, were with Christopher at the time

of his arrest and also were taken into

custody.”

The following evening, two Florida

police officers, Lieutenant Mills _ and

Officer Young, accompanied by _ several

Memphis officers, began interrogating

Christopher. Initially Christopher denied

killing the couple, claiming that Ahern

had killed Skillin and then had committed

suicide. Christopher said that he had

found the couple dead on the day of the

murder and had fled because he had a

criminal record and Ahern’ had_- used

Christopher's gun, a gun Christopher said

he had sold to Ahern. Subsequently, after

at least two hours of questioning and,

according to Christopher, several

violations of his right to cut off

questioning, Christopher confessed to both

murders. The initial confession was not

recorded; immediately afterwards the tape

recorder was turned back on and

Christopher repeated his confession. This

confession was later played to the jury

over Christopher's objection.

The State of Florida tried petitioner

twice for the murders of Skillin and

Ahern. The first trial, in May 1978,

resulted in a hung jury and a mistrial.

Following a change of venue, Christopher

was retried in August, 1978. On August

18, 1978, Christopher was convicted by a

jury of two counts of first degree

murder. He was sentenced to death, as

recommended by the jury.?

The Florida Supreme Court affirmed

the convictions and sentence on direct

appeal. Christopher v. State, 407 So.2d

198 (Fia. 1981), cert. denied, 456 U.S.

910, 72 L.Ed.2d 169 (1982). Subsequently,

On appeal from the denial of a 3.850

motion for post-conviction relief and on a

petition for writ of error coram nobis,

the Florida court again upheld _ the

convictions and the sentence. Christopher

v. State, 416 So.2d 450 (Fla. 1982).

Christopher, raising eleven claims,4

petitioned the federal district court for

a writ of habeas corpus, as well as for a

stay of execution. The district court

granted the stay on June 23, 1982; on

March 13, 1984, the court denied habeas

relief without an evidentiary hear ing.”

Christopher v. State, 582 F.Supp. 633

(S.D. Fla. 1984). Christopher appealed.

The petitioner subsequently filed

with the district court a motion for

relief from judgment pursuant to Rule

60(b), Fed. R. Civ. P., alleging that he

did not testify at the hearing regarding

suppression of the confession because the

trial court refused to rule on_ the

admissibility at trial of such testimony

and his trial counsel did not know the law

on this issue. The district court denied

this motion.

Petitioner appealed and this court

granted his motion for a consolidation.’

II. ADMISSIBILITY OF THE CONFESSION

Christopher claims that his

confession should not have been admitted

into evidence because it was obtained in

violation of his right to remain silent,

and thus was inadmissible under Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966).8 he district court

denied this claim, apparently on the

ground that Christopher had not invoked

his right to remain silent because he not

only failed to clearly assert the right

but thereafter cont inued to speak.”

Christopher, 582 F.Supp at 643-43. For

the reasons set forth below, we reverse.

In Miranda _v. Arizona the Supreme

Court established procedural safeguards to

protect the constitutional rights of

persons subject to custodial

interrogation. The Miranda Court held

that unless law enforcement officers give

certain specified warnings’ prior to

questioning a person in custody, and

follow certain specified procedures during

—

the course of any subsequent

interrogation, the state may not use in

its case in chief any statement by the

suspect, over the suspect's objection.

384 U.S. at 476-479, 86 S.Ct. at 1629-30;

accord Oregon v. Elstad, 470 U.S. 298, »

105 S.Ct. 1285, 1298 (1985); Michigan v.

Mosley, 423 U.S. 96, 99-100, 96 S.Ct. 321,

324-25, 46 L.Ed.2d 313 (1975).

Among the procedural safeguards

established by the Miranda Court is the

"right to cut off questioning." Miranda,

384 U.S. at 474, 86 S.Ct. at 1628. This

right, established as a "critical

safeguard" of the Fifth Amendment right to

remain silent, Mosley, 423 U.S. at 103, 96

S.Ct. at 326, requires the police to

immediately cease interrogating a suspect

once the suspect "indicates in any manner,

at any time . . . during questioning, that

he wishes to remain silent."11 Miranda,

384 U.S. 473-74, 86 S.Ct. at 1627-28

(emphasis added); Mosley, 423 U.S. at 100,

96 S.Ct. at 325; see Martin v. Wainwright,

770 F.2d 918, 923-24 (llth Cir. 1985),

modified, 781 F.2d 185, cert. denied, 107

S.Ct. 307, 93 L.Ed.2d 281 (1986).

Although established in Miranda, it

was in Mosley, supra, that the Court

delineated the scope of "the right to cut

off questioning." Reiterating that this

right serves as an essential check on "the

coercive pressures’ of the custodial

setting" by enabling the suspect’ to

"control the time at which questioning

occurs, the subjects discussed, and the

duration of the interrogation," 423 U.S.

at 103-04, 96 S.Ct. at 326, the Mosley

Court reaffirmed Miranda's requirement

that "the interrogation must cease” when

the person in custody “indicates in any

manner" that he wishes to remain silent.

423 U.S. at 101-02, 96 S.Ct. at 325-26.

This requirement was incorporated into the

Court's holding that statements’ taken

after a suspect indicates his desire to

12 unless

remain silent are inadmissible

the suspect's ""right to cut off

questioning' was "scrupulously

honored.'" See Mosley, 423 U.S. at 101,

103-04, 96 S.Ct. at 325-26; United States

v. Bosby, 675 F.2d 1174, 1182 (llth Cir.

1982) ("where a defendant asserts his

right to remain. silent. . - law

enforcement officers are required to cease

questioning [him.]").

The determination of whether a

suspect's right to cut off questioning was

scrupulously honored requires a case-by-

case analysis. United States Vv.

A-9

’

Hernandez, 574 F.2d 1362, 1369 (Sth Cir.

1978) .13 Applying the principles of

Miranda and Mosley to the facts of this

case, we conclude that here, in sharp

contrast to Mosley, the police did not

“scrupulously honor" petitioner's right to

terminate the interrogation.

In Mosley the Supreme Court found

that the suspect's right to cut off

questioning was “scrupulously honored"

because "the police here immediately

ceased the interrogation, resumed

questioning only after the passage of a

Significant period of time and the

provision of a fresh set of warnings, and

restricted the second interrogation to a

crime that had not been a subject of the

earlier interrogation." 423 U.S. at 106,

96 S.Ct. at 327.

As is apparent from the following

transcript of the confession, in the

instant case the petitioner's rights were

accorded no such respect:

CHRISTOPHER: Then I got nothing

else to say. If you're accusing

me of murder, then take me _ down

there.

MILLS: You were accused when you

came in here. You knew you were

accused --

CHRISTOPHER: That's right.

That's right.

MILLS: -- you knew what you were

accused of, and I told you what

[your daughter] was accused of,

so don't make out like you don't

know what you're accused of.

CHRISTOPHER: Oh, ah, -- I know

what I'm accused of. I know that

I'm accused of both murders.

MILLS: I told you awhile ago you

were being charged with both

murders.

CHRISTOPHER: Okay then. I_ got

nothing else to Say.

YOUNG: You mean it's all right

as long as we accuse you of one?

MILLS: But all of a sudden when

you're accused of two, you don't

CHRISTOPHER: I'm not’ saying

that, I know that, didn't I tell

you awhile ago that I knew that

ya, I was accused of both

murders?

YOUNG: Yeah. You -- you should

know.

CHRISTOPHER: Okay then. What's

the need of me saying anything

then.

MILLS: What are you upset about?

CHRISTOPHER: You ask me? I'm

upset about the fact that you're

bringing my daughter up here,

like I'm using her in this thing.

A-11

YOUNG: I'm asking you --

MILLS: I'm asking you to explain

her actions in this thing? ...

(Emphasis added).

Here the interrogation did not cease

immediately after Christopher first

indicated that he wished to remain silent,

and, in fact, cont inued despite

Christopher's repeated invocations of his

right of silence. Moreover, the police

continued to interrogate Christopher on

the very crimes that were the subject of

the interrogation when Christopher invoked

his right to silence. Accordingly, there

can be no doubt that the officers violated

Christopher's right to cut off

questioning; therefore, all statements

taken during the unlawfully continued

interrogation were inadmissible. See

Martin, 770 F.2d at 923-23; United States

v. Poole, 794 F.2d 462, 466-67 (9th Cir.

1986); Anderson v. Smith, 751 F.2d 96, 105

(2d Cir. 1984); see Hernandez, 574 F.2d at

1369-70; cf. Mosley, 423 U.S. at 105-06,

96 S.Ct. at 327 (interrogation immediately

ceased, reinitiated on different subject

more than two hours later, after warnings

were readministered); Bosby, 675 F.2d at

1182 (interrogation immediately ceased,

réinitiated two weeks later, after

warnings were readministered).

Cc.

The State contests this conclusion

and argues that we should affirm the

district court's determination that

Christopher did not adequately assert this

right because he “voluntarily cont inued

the interrogation.” 582 F.Supp. at 644.

The State cannot prevail on this

argument, however. Contrary to the

district court's holdiong, a suspect's

claim that the police violated his right

to silence by failing to immediately

terminate the interrogation is not negated

by the fact that the suspect answered

additional questions after the police

failed to scrupulously honor his request

to end the questioning. See Martin, 770

F.2d at 923-24; Hernandez, 574 F.2d at

1369. "({Aj]n accused's post-request

responses to further interrogation may not

be used to cast retrospective doubt on the

Clarity of the initial request itself."

Smith v. Illinois, 469 U.S. 91, , 105

S.Ct 490, 495, 83 L.Ed.2d 488 (1984)

(emphasis in original). The fact that

Christopher continued to speak, therefore,

has no bearing on his claim that he

invoked, and the police immediately failed

to honor, his right to remain silént.

The State also argues that

Christopher's rights were not violated

because his first attempt to assert his

right to cut off questioning was

114

equivoca and the subsequent

conversation between Christopher and the

A-14

officers was “nothing more than an attempt

by a police officer to make a

clarification." The State, moreover,

claims that after this clarification

Christopher continued to speak of his own

volition. 1

We note at the outset that the State

mischaracterizes the issue. Contrary to

the argument asserted by the State, a

suspect need not "clearly ask{] that the

interrogation stop," Appellee's Brief at

15, in order to invoke his right to remain

silent. Rather, Miranda and its progeny

require the police -to terminate’ the

interrogation if the suspect "indicates,

in any manner, at any time . . . during

questioning that he wishes to remain

silent." Mosley, 423 U.S. at 100-01, 96

S.Ct. at 325, quoting, Miranda, 384 U.S.

at 473-74, 86 S.Ct. at 1627. Thus, an

equivocal indication of a desire to remain

silent, like an unequivocal indication,

suffices to invoke Miranda's requirement

that the interrogation cease. Martin, 770

F.2d at 924; Anderson, 751 F.2d at 103;

United States v. Lopez-Diaz, 630 F.2d 661,

664-65 (9th Cir. 1980). Accordingly, we

need not determine whether Christopher's

first indication that he wished to remain

silent was equivocal because, even if it

were, the officers violated Miranda by

failing to terminate the interrogation.

As the State observes, following an

equivocal indication of the desire to

remain silent, officers may ask questions

designed to clarify whether the suspect

intended to invoke his right to remain

silent. 16 Martin, 770 F.2d at 924;

Anderson, 751 F.2d at 103; see Lopez-Diaz,

630 F.2d at 665. The rule, however,

permits "clarification," not questions

that, though clothed in the guise of

"clarification," are designed to, or

operate to, 1? delay, confuse, or burden

A-16

the suspect in his assertion of his

rights. Because such questions serve to

keep the suspect talking, not to uphold

his right to remain silent, they

constitute unlawful “interrogation,” not

permissible clarification. See Mosley,

423 U.S. at 105-06, 96 S.Ct. at 327

(following an invocation of the right to

silence the investigators may not attempt

to wear down the suspect's resistance and

make him change his mind); Martin, 770

F.2d at 924 (further- questioning must be

limited to clarifying the equivocal

request); Anderson, 751 F.2d at 103, 105

(inquiry as to why suspect wishes to

remain silent is impermissible

interrogation, not lawful clarification);

Lopez-Diaz, 630 F.2d at 665; see also

United States v. Johnson, 812 F.2d 1329,

1331 (llth Cir. 1986) (following an

invocation of right to counsel the police

may not even implicitly indicate to the

Suspect that cooperating with the police

would be beneficial to him); Nash vy.

Estelle, 597 F.2d 513, 517-18 (5th Cir.)

(en banc) (the interrogator may not

attempt to persuade the suspect to retract

a previously-voiced request for counsel),

cert. denied, 444 U.S. 981, 100 S.Ct. 485,

62 L.Ed.2d 409 (1979).

Employ ing these principles, we

conclude that the officers' response to

Christopher's purported equivocal

invocations of his right to remain silent

constituted an unlawful continuation of

the interrogation, and not permissible

interrogation. After Christopher's

initial assertion of his right to remain

Silent, the officers, if they considered

the assertion equivocal, legitimately

might have asked a simple question to

Clarify whether Christopher wanted to stop

talking. Instead, Officer Mills responded

by challenging Christopher: "You were

accused when you came in here. .. . [Y]ou

knew what you were accused of, and I told

you what [your daughter] was accused of,

so don't make out like you don't know what

you're accused of." This statement did

not clarify whether Christopher wished to

remain silent. Instead, in violation of

Miranda, it challenged the basis of

Christopher's decision to remain silent.

See Anderson, 751 F.2d at 105. In

addition, the response could have

reinforced Christopher's previous concerns

that his daughter might be implicated in

the murders, impermissibly indicating that

Christopher should reconsider his decision

not to talk and instead should help his

daughter by confessing the murders. See

Johnson, 812 F.2d at 1331 (after a request

for counsel the interrogation must cease;

the police may not indicate to suspect

that it is in his interest to cooperate

with them); cf. Mosley, 423 U.S. at 104,

96 S.Ct. at 327 (police behavior condoned

where, after request to stop questioning,

the police did not try "in any way to

persuade [the suspect] to reconsider his

position.").

Furthermore, Christopher responded to

the officers’ statements by again

indicating his desire to remain silent:

"Okay then. I got nothing else to say."

ore considered in the totality

of the circumstances, cannot be viewed as

anything other than an unequivocal

invocation of his right to remain

silent. Poole, 794 F.2d at 466

(interrogation should have ceased after

Suspect said he has “nothing to. talk

) 18 Therefore, no further

about"

"clarification" was either necessary or

permissible; yet even then the officers

did not terminate the interrogation. This

continued questioning of Christopher was

in violation of his Miranda rights. 19

A-20

Martin, 770 F.2d at 924 (where request is

equivocal further questioning must _ be

limited to clarifying the request; once it

is clarified questioning must’ cease);

Anderson, 751 F.2d at 103 (police may

"clarify" only where the request to cut

off questioning was equivocal); see Smith

v. Illinois, 469 U.S. at __, 105 S.Ct. at

494 ("Where nothing about the request for

counsel or the circumstances leading up to

the request would render it ambiguous, all

questioning must _cease.") (emphasis

added).

The State argues that, even if the

officers did not scrupulously honor

Christopher's right to cut off

questioning, the confession nevertheless

is admissible because Christopher

"initiated" the continued ee

when, during the discussion of

extradition, Christopher said, "Can I ask

A-21

one quest ion?"29

The origins of the initiation

doctrine lie in the Miranda Court's ruling

that Miranda's procedural safeguards apply

only to "custodial interrogation" of a

suspect: defined as "questioning initiated

by law enforcement officers after a person

has been taken into custody or otherwise

deprived of his freedom in any significant

way.” Miranda, 384 U.S. at 444, 86 S.Ct.

at 1612 (emphasis added). Based on this

limitation, the Court in subsequent right

to counsel cases has held that Miranda's

per se bar _ against "interrogation"

following a request for counsel does not

prohibit the police from taking statements

during a suspect-initiated conversation

because suspect-intitiated conversation is

not “interrogation.” Edwards v. Arizona,

451 U.S. 477, 485-86, 101 S.Ct. 1880,

1885, 68 L.Ed.2d 378 (1981); see Oregon v.

Bradshaw, 462 U.S. 1039, 1044-45, 103

A-22

S.Ct. 2830, 2834-35, 77 L.Ed.2d 405

(1983).

While we recognize that Edwards and

Bradshaw are right to counsel cases, and

that Mosley governs the admissibility of

statements made following the suspect's

invocation of his right to cut off

questioning, Mosley, 423 U.S. at 104, 96

S.Ct. at 326, we accept the State's

implicit claim that there are situations

where the "initiation" test of

Edwards/Bradshaw govers the admissibility

of statements made after a suspect has

invoked his right to terminate

questioning. See Smith v. Wainwright, 777

F.2d 609, 618 (llth Cir. 1985), cert.

denied, 106 S.Ct. 3275 (1986). Although

right to counsel and right to _ silence

cases are distinguishable because’ the

right to silence is not protected by a per

se rule, compare Mosley, 423 U.S. at 101-

04 & n.10, 96 S.Ct. at 325-26 & n.10, with

A-23

Edwards, 451 U.S. 484-85, 101 S.,Ct. at

1884-85, the two types of cases can be

similar because the invocation of the

right to silence does raise a per se bar

to further interrogation in certain

circumstances. At the very least a

suspect's request to cut off questioning

serves as a complete bar to any

questioning related to the subject of the

initial interrogation for a "significant

period of time" after the request.

Hernandez, 574 F.2d at 1369 (police must

wait a "significant period of time" before

resuming questioning); see Mosley, 423

U.S. at 102, 96 S.Ct. at 325-26 (Miranda

prohibits "the immediate cessation of

questioning, and . . . a resumption of

interrogation after a momentary

respite."). Thus, for a "significant

per iod” following a request to cut off

questioning, the suspect stands in

virtually the same position as he would be

had he requested counsel: the police are

barred from interrogating him. Hernandez,

574 F.2d at 1369.

Non-interrogatory conversation may

occur during this “significant period,”

however. We conclude therefore that

during this “significant period" the

Edwards/Bradshaw rule merges with the test

of Mosley to render inadmissible

statements obtained during a "significant

period" after a request to cut off

questioning, unless the statements were

the product of a conversation initiated by

the suspect under the test of

Edwards/Bradshaw. See Smith Vv.

Wainwright, 777 F.2d at 618. We further

conclude that both prongs of the

Edwards/Bradshaw rule apply: where the

"initiated" conversation is not “wholly

one-sided," but instead involves

interrogation by the police, the suspect's

statements are admissible only if the

suspect both initiated the dialogue and

waived his previously-asserted right to

Silence. Smith v. Wainwright, 777 F.2d at

618; see Connecticut Vv. Barrett,

U.S. , 107 S.Ct. 828, 831, 93 L.Ed.2d

920 (1987); Bradshaw, 462 U.S. at 1044-45,

103 S.Ct. at 2834;21 Edwards, 451 U.S. at

486 n.9, 101 S.Ct. at 1885 n.9.

Although the "initiation" doctrine of

Edwards/Bradshaw does apply to some right

to silence cases, it does not affect the

outcome in the instant case. The first

prong of the initiation test requires that

it was the suspect, not the police, who

"initiated," or “reopened,” the

dialogue. Bradshaw, 426 U.S. at 1044-45,

103 S.Ct. at 2834. “Initiation” means to

"begin" or "set-going"; in the

interrogation context, it means that the

Suspect "started,”- not simply “continued,”

the interrogation. Therefore, the first

prong of the initiation test requires that

ate

any previous police-initiated

interrogation have ended prior to the

suspect's alleged initiatory remark; for,

just as one cannot start a engine that is

already running, a suspect cannot

"initiate" an on-going. interrogation.

See Smith v. Wainwright, 777 F.2d at 618

("If [the suspect's] request that

questioning cease was honored, .. . the

question then becomes who initiated the

subsequent interrogation.") (emphasis

added); cf. Bradshaw, 462 U.S. at 1041-42,

103 S.Ct. at 2833 (initial interrogation

had clearly ended before the suspect

"initiated" a conversation with the

police).

In the instant case, minutes before

the alleged "initiation," Christopher

again invoked his right to cut off

questioning. Rather than honor this right

and terminate the interrogation, Officer

Mills “switched the subject” to whether

A-27

Christopher would agree to be extradited

to Florida on the murder charges. The

State argues that this change of subject

was a sufficient honoring of Christopher's

right to permit the conclusion that

Christopher's question was an

"initiation." Mosley, however, requires

more than a switch of subject after an

invocation of the right to. silence;

rather, Mosley requires the termination of

the interrogation. See Martin, 770 F.2a

at 924; Anderson 751 F.2d at 103.

Although the police may terminate an

interrogation without falling into total

silence, any discussion with the suspect

other than that "relating to routine

incidents of the custodial relationship"

must be considered a continuation of the

interrogation. See Bradshaw, 462 U.S. at

1045, 103 S.Ct. at 2835. Specifically,

the police may make routine inquiries of a

Suspect after he requests that they

A-28

terminate questioning, such as whether he

would like a drink of water. See id.

They may not ask questions or make

statements which "open up a more

generalized discussion relating directly

or indirectly to the investigation," as

this constitutes interrogation. Id.

(emphasis added); Johnson, 812 F.2d at

313; see Rhode Island v. Innis, 446 U.S.

291, 301, 100 S.Ct. 1682, 1689-90, 64

L.Ed.2d 297 (1980).

Because here the officers' inquiries

regarding Christopher's extradition

"relate[d] directly or indirectly to the

investigation,” these questions were an

unlawful continuation of the

interrogation. Johnson, 812 F.2d at 313;

see Poole, 794 F.2d at 467 (agent's

questions as to suspect's name, and date

of birth following a request to cut off

questioning constituted impermissible

interrogation); United States v. Webb, 755

F.2d 382, 389 (5th Cir. 1985) (officer's

inquiry as to what kind of trouble the

Suspect was in constituted unlawful

interrogation). Accordingly, we conclude

that, because the initial police-initiated

interrogation was still in progress when

Christopher asked the question at issue,

this question was not an "“initiation;"

rather, it was merely a question posed

during the course of an on-going police-

initiated interrogation. Therefore, given

that an unlawfully-cont inued police-

initiated interrogation is not rendered

lawful simply because a suspect asked a

question, we reject the State's argument

and hold the confession inadmissible.

III. HARMLESS ERROR

At oral argument, for the first time,

the State suggested that the admission of

Christopher's confession was at worst

harmless error.

A-30

The appropriate standard for

determining whether this error was

harmless is set forth in Chapman_v.

California, 386 U.S. 18, 24, 87 S.Ct. 824,

828, 17 L.Ed.2d 705 (1967).22 Martin, 770

F.2d at 932-33; Hernandez, 574 F.2d at

1372. In order for an error to be deemed

"harmless" under Chapman the State must

prove beyond a reasonable doubt that the

admission of the confession did not

contribute to the verdict obtained.

Chapman, 386 U.S. at 24, 87 S.Ct. at 828;

Martin, 770 F.2d at 932 n.23. The State

must show that the evidence that remains

after the unlawful confession is excluded

not only is sufficient to support the

verdict, but overwhelmingly establishes

the defendant's guilt beyond a reasonable

doubt. Harryman v. Estelle, 616 F.2d 870,

876 (5th Cir.) (en banc), cert. denied,

449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76

(1980); see Brown v. United States, 411

A-31

U.S. 223, 230-32, 93 S.Ct. 1565, 1569-70,

36 L.Ed.2d 208 (1973); Milton Vv.

Wainwright, 407 U.S. 371, 372-73, 377-78,

92 S.Ct. 2174, 2175-76, 2178, 33 L.Ed.2d i

(1972).

Because confessions carry "extreme

probative weight," Hernandez, 574 F.2d at

1372, the admission of an_ unlawfully

obtained confession rarely is "harmless

error." In fact, we have ruled the

admission of an unlawful confession

harmless only in limited instances, such

as where there was in evidence at least

one other lawful confession by the

defendant.24 Compare Martin, 770 F.2d 932-

33 & n.24 (harmless error where a lawful

confession was admitted at trial) and

United States v. Davidson, 768 F.2d 1266,

1271-72 (llth Cir. 1985) (same) with

Hernandez, 274 %*F.aG at 1372 & n.22

(admission of confession not harmless

despite defendant's presence at scene of

A-32

major mar ijuana unload ing operation

because there was insufficient direct

evidence connecting the defendant to the

truck or its contents) and United States

v. Blair, 470 F.2d 331, 338 (5th Cir.

1972) (admission statement not harmless

where it “provided the Government with a

key link in the evidentiary chain of

proof"), cert. denied, 411 U.S. 908, 93

S.Ct. 1536, 36 L.Ed.2d 197 (1973); accord

Milton v. Wainwright, 407 U.S. at 372-73,

92 S.Ct. at 2174-75 (alleged involuntary

confession to police officer posing as

cell mate would be harmless in light of

three previous valid confessions); Poole,

794 F.2d at 467-68 (admission statements

not harmless despite eyewitness testimony

that defendant robbed the bank); but cf.

Felder v. McCotter, 765 F.2d 1245, 1250-51

(Sth Cir. 1985) (use of unlawful

confession not harmless even though there

was a second, less detailed, admission in

A-33

evidence), cert. denied, 106 S.Ct. 1523

(1986).

We conclude that here the admission

of the unlawful confession was not

"harmless error." The unlawful confession

was the only confession admitted at trial

and it was heavily relied upon by the

prosecution. There were no eye witnesses

to the murders. Moreover, the physical

evidence introduced (blood on

Christopher's shoes, fingerprints in the

house, Christopher's gun), as well as both

the evidence of Christopher's incestuous

relationship with Norma and Norma's

testimony, were not inconsistent with

petitioner's original murder-suicide

alibi. Furthermore, Heinrich Schmid, the

Collier County medical examiner, testified

only that he "[did] not believe" that

Ahern's wounds were self-inflicted.2> A

reasonable jury could have’ concluded,

based on the lawfully introduced evidence,

that the State had = not established

petitioner's guilt beyond a_ reasonable

doubt. This conclusion is buttressed by

the fact that Christopher's first trial

resulted in a hung jury. We find,

therefore, that the erroneous admission of

the unlawful confession was not harmless

error.

Accordingly, we REVERSE and REMAND to

the district court with directions to

grant the writ of habeas corpus with

respect to both convictions, conditioned

upon the State's affording Christopher a

new trial.2°

A-35

’

1/ Although the district court

Stated that Christopher was. arrested

September 22, 1977, the record indicates

otherwise. This date is not relevant to

Our holding, however.

2/ The factual background of this

case is contained in the district court's

opinion. Christopher v. State of Florida,

582 F.Supp. 633, 635-36 (S.D. Fla.

1984). The district court's findings

regarding the facts of the murders

apparently is based on Christopher's

confession, as there is no independent

evidence in the record to Support these

findings.

3/ The trial judge sentenced

petitioner to death after finding that

there were two aggravating circumstances:

(1) petitioner previously had been

convicted of violent felonies, and (2) the

murders were "heinous, atrocious or

cruel," and that there were "no"

mitigating circumstances.

4/ Christopher raised the following

Claims in district court: (1) that the

evidence was insufficient to support (a)

the finding of aggravation that

Christopher had prior convictions for

attempted rape and assault to commit

murder, (b) the finding of aggravation

that the two murders’ were heinous,

atrocious or cruel and (c) the finding

that the aggravating circumstances

Outweighed the mitigating ones; (2) that

he was denied his right to a jury composed

of a representative cross-section of the

community by the exclusion of two jurors

who voiced only general objections to the

death penalty; (3) that the confession was

inadmissible since (a) it was unlawfully

obtained in violation of Christopher's

A-36

right to cut off questioning and (b) it

was coerced; (4) that the admission of

irrelevant and highly prejudicial evidence

on Christopher's incestuous relationship

with his daughter Norma denied him his

right to a fair trial; (5) that the trial

court's refusal to require the State to

pay the cost of sodium pentothal test and

its grant of the prosecutor's motion to

preclude the admission of polygraph test

results allegedly favorable to Christopher

denied Christopher his right to a fair

trial; (6) that the trial court erred in

failing to provide a psychiatric

examination since petitioner's competency

to assist at trial and sanity at the time

of the murders was in issue; (7) that the

Florida death penalty statute is

unconstitutional; (8) that he was denied

due process as a result of the Florida

Supreme Court's receipt of ex parte

information concerning Christopher during

direct appeal; (9) that the State

improperly suppressed exculpatory

evidence, in particular a tape recording

of Norma which indicates that she had a

motive to kill the couple; (10) that he

has a right to a new trial given the newly

discovered evidence that Norma confessed

to petitioner's mother that she, Norma,

had shot the couple; and (11) that his

trial lawyer was ineffective.

5/ The district court denied

Christopher both a certificate of probable

cause (CPC) and leave to appeal in forma

pauperis (IFP). This court granted both

CPC and IFP by order dated December 27,

1984.

. The district court denied

petitiomer both CPC and IFP. This court

-+antea both CPC and IFP by order dated

AUGUST ~— 1985.

7/ In this consolidated appeal,

petitioner challenges the district court's

denial of the Rule 60(b) motion. He also

contests the district court's denial of

habeas relief on eight different grounds:

(1) the confession’ was inadmissible

because (a) it was obtained in violation

of his right to cut off questioning and

(b) it was coerced; (2) two jurors were

improperly excluded; (3) the "heinous,

atrocious, or cruel" aggravating

circumstance was improperly applied in

this case; (4) the prior conviction

aggravating circumstance was improperly

applied; (5) the trial court unlawfully

used a non-statutory aggravating

circumstance; (6) the trial court's

finding that there were “no” mitigating

circumstances is not supported by the

record, and (7) the district court

improperly denied an evidentiary hearing

on petitioner's ineffective assistance of

counsel claim.

8/ Christopher also alleges that the

confession was coerced and thus’7 was

inadmissible. See note 7, supra. Given

that we hold that the confession was

inadmissible because it was obtained in

violation of Christopher's Miranda rights,

we need not, and therefore do not, reach

the voluntariness issue. We do observe,

however, that the district court

incorrectly treated the voluntariness

determination as a finding of fact and

thus accorded deference to the state court

finding under 28 U.S.C. §2254(d). 582

F.Supp at 643. Although the state court's

findings of historical fact must be

accorded a presumption of correctness,

vOluntariness is a question of law and

requires independent federal

determination. Miller vy. Fenton, 474 U.S.

104, , 106 S.Ct. 445, 450, 88 L.Ed.2a

405 (1985).

A-38

Se | ae

9/ On direct appeal, the state court

incorrectly treated the right to cut off

questioning claim as if it were a

voluntariness claim. The court did not

even mention Miranda v. Arizona, 384 U.S.

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

in that portion of the opinion.

Christopher v. State, 407 So.2d 198, 200-

01 (Fla. 1981).

10/ The warnings must’ inform the

person in custody “that he has a right to

remain silent, that any statement he does

make may be used as evidence against him,

and that he has a right to the presence of

an attorney, either retained or

appointed." Miranda, 384 U.S. at 444, 86

S.Ct. 1612.

11/ The Miranda Court also

established procedural safeguards to

protect the right to consult’ with

counsel. Miranda, 384 U.S. at 474-75, 86

S.Ct. at 1628. The present case, however,

does not involve the procedures to be

followed if the person in custody requests

counsel since Christopher never made such

a request.

12/ We are concerned here only with

the use of an allegedly unlawful

confession in the prosecution's case in

chief. Cf. Harris v. New York, 401 U.S.

222, 225-26, 91 S.Ct. 643, 645-46, 28

L.Ed.2d 1 (1971) (a voluntary but

unlawfully-obtained statement may be

admitted by the prosecution to impeach the

defendant on cross-examination).

13/ The Eleventh Circuit, in the en

banc decision Bonner v. City of Prichard,

661 F.2d 1206, 1209 (llth Cir. 1981),

adopted as precedent decisions of the

former Fifth Circuit rendered prior to

October 1, 1981.

14/ In particular, the state claims

that Christopher's first statement,

"[t]hen I got nothing else to say" was not

a clear invocation of the right to cut off

questioning because it was rendered

conditional by his statement "“[i]f you're

accusing me of murder, then take me down

there.” (Emphasis added).

15/ The State's account of the

interrogation in its brief varies

substantially from the record. The State

Claims that after Officer Mills' initial

"clarifying" statements "Christopher

cont inue [d] of his own volition to

speak." Appellee's Brief at 15 (emphasis

supplied). While the State concedes that

there were other attempts to terminate the

interrogation, the State does not mention

that Christopher responded to this

purported clarification with a second

request to cut off questioning.

16/ [T)he term ‘interrogation' under

Miranda refers not only to express

questioning, but also to 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,

100 S.Ct. 1682, 1689-900, 64 L.Ed.2d 297

(1980) (footnotes omitted).

17/ The determination of whether

questioning constituted interrogation, as

opposed to Clarification, "focuses

primarily upon the perceptions of the

suspect.” Innis, 446 U.S. at 301, 100

S.Ct. at 1689.

A-40

——— Ee &

18/ See People Vv. Carey, 227

Cal.Rptr. 813, 814-15, 183 Cal.App.3d 99

(2d Dist. 1986) (suspect's statement “I

ain't got nothing’ to say" was an

unequivocal invocation of right to

silence), cert. denied, sub nom.,

California v. Carey, 107 S§.Ct. 1297, 94

L.Ed.2d 153 (1987).

19/ Furthermore, even had we

concluded that this second attempt to

invoke his right to silence also was

equivocal, we still would find that the

officers violated Christopher's Miranda

rights because, as can be seen from the

quoted portion of the interrogation, the

officers did not respond to this request

by attempting to clarify Christopher's

intent. Instead, they responded by

challenging Christopher in an attempt to

keep him speaking, despite his previous

assertion of his right’ to silence.

Accordingly, whether or not Christopher's

second request was equivocal, the

officers' response was unlawful under

Miranda. See Martin v. Wainwright, 770

F.2d 918, 924 (llth Cir. 1985), modified,

781 F.2d 185, cert. denied, 107 S.Ct. 307,

93 L.Ed.2d 281 (1986); Anderson v. Smith,

751 F.2d 96, 105 (2d Cir. 1984).

Moreover, immediately after this

second request to stop, and second

unlawful cont inuat ion of the

interrogation, Christopher made a third,

albeit somewhat equivocal, request to stop

("Okay then. What's the need of me saying

anything then"). Once again the officers

improperly failed to terminate the

interrogation. Instead, Mills asked

Christopher: "What are you upset about?"

Given the previous requests to stop, at

this point there certainly was no need for

clarification. Moreover, Mills’ question

A-41

was not a "clarification." Rather, it was

interogation because it invited a response

from Christopher that was not restricted

to the issue of whether Christopher wished

to terminate the interrogation. Mills'

response thus’ constituted yet another

violation of Christopher's Miranda

rights. See United States vy. Poole, 794

F.2d 462, 467 (9th Cir. 1986) (the

interrogating officer's questions as to

Suspect's assertion of his right to

silence constituted impermissible

interrogation) ; Anderson, 751 F.2d at 105

(asking a suspect why he wishes to remain

Silent following an _ invocation of the

right to silence is unlawful

interrogation, not permissible

"Clarification"); see also United States

Vv. Johnson, 812 F.24 1329, 1331 (llth Cir.

1986) (officer's inquiry following request

for counsel: "Do you want to know what

will happen to you," "related directly or

indirectly to the investigation" and thus

constituted unlawful interrogation) ; cf.

Michigan vy. Mosley, 423 U.S. 96, 104-05,

76 &.Ct. 321, 327, a L.Ed.2d 313 (1975)

(police "scrupulously honored" the

Suspect's right to cut off questioning

where they "immediately ceased the

interrogation and did not try either to

resume the questioning or in any way to

persuade [the suspect] to reconsider his

position") ; Bradshaw, 462 U.S. at 1045-46,

103 S.Ct. at 2835 (subsequent questioning

following invocation of right to counsel

waS permissible where the police stopped

interrogation after defendant requested

counsel).

20/ The relevant portion of the

transcript reads as follows:

CHRISTOPHER: Well, look, I'm

just constantly telling lies,

look I ain't got nothing to say

A-42

—_______

at all, Pete, why I have, you

know, and that's it. I ain't

saying nothing else.

MILLS: Okay.

CHRISTOPHER: That I'm charged

with two murders, --, is all _ I

can Say.

MILLS: Okay. this brings us up

to another point, which has

nothing to do with what we're

talking about. Ah, we're here

from Florida and these warrants,

these warrants are from

Florida. Which you know you have

to be extradited down’ there.

That can come about several

different ways, you can sign on

whether you want ---~-~-- here.

Ah, would you sign a waiver an go

back?

CHRISTOPHER: When are you all

taking me back if I sign a

waiver? . . . [short exchange on

when taking him back if he

signs].

CHRISTOPHER: Right. If I don't

sign, how long have I got before

you all take me back?

MILLS: Well, we'll go ahead and

initiate the ah, the proceedings,

and ah, everhow they progress,

well, aS soon as the proceedings

are over, then, we're going back

down.

YOUNG: I can't say how long it

will be, it might take a week, I

don't know.

BOSWELL : It's usually 30 to 60

days.

MILLS: Is that right?

CHRISTOPHER: Can I ask _ one

question?

MILLS: Sure. .. -

(emphasis added).

A-43

Christopher then requested the

officers to turn off the tape recorder and

asked about what was going to happen to

his daughter Norma. According to the

officers' testimony at trial, after this

discussion of Christopher's daughter the

officers changed the topic of conversation

back to the subject of Christopher's

involvement in the murders.

21/ Although Justice Rehnquist's

opinion Bradshaw is a plurality opinion,

joined by only three other justices, the

four justices in the dissent agreed with

the plurality that in order for statements

following a request for counsel to be

admissible, the state must show that the

Suspect "initiated" further conversation

with the police and that the’ suspect

validly waived his previously asserted

right to counsel and right to silence

under the standard announced in Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

1023, 82 L.Ed.2d 1461 (1938). Where the

dissent split from the plurality was the

definition of "initiation." Bradshaw, 462

U.S. at 1051, 1053-54 & n.2, 103 S.Ct. at

2838, 2839-40 & n.2 (Marshall, J.

dissenting). Although the plurality said

that-to "initiate" a conversation the

question that "reopens" the dialogue need

only “evince[] a willingness and a desire

for a generalized discussion about the

investigation," 462 U.S. at 1045-46, 103

S.Ct. at 2835, the dissent stated that the

initiatory “inquiry must demonstrate a

desire to discuss the subject matter of

the criminal investigation." 462 U.S. at

1055, 103 S.Ct. at 2840 (emphasis added).

22/ This holding not only is

consistent with, it is necessitated by,

Mosley. For, as the Court stated in

Mosley, the underlying purpose of the

A-44

right to cut off questioning is to give

the subject control over “the time at

which questioning occurs, the subjects

discussed, and the duration oof the

interrogation," so as to “counteract[] the

coercive pressures of the custodial

setting." Mosley, 423 U.S. at 103-04, 96

S.66. 06 #06- Allowing a suspect to

control the timing of an _ interrogation

through his ability to “initiate” it

serves this purpose; permitting the police

to continue a custodial interrogation

despite a request to stop in the hope that

the suspect will eventually ask a question

does not. See id. at 102-03, 96 S.Ct. at

325-26.

23/ Although the admission of a

coerced confession is never harmless

error, Rose v. Clark, 106 S.Ct. 3101,

3106, 92 L.Ed.2d 460 (1986), citing,

Chapman _v. California, 386 U.S. 18, 23

n.8, 87 S.Ct. 824, 828 n.8, 17 L.Ed.2d 705

(1967), an otherwise unlawful but

voluntary confession can _ be _ harmless

error, Martin, i, a Py at 923-33.

Because we conclude that the admission of

Christopher's unlawful confession was not

harmless error, we need not address the

voluntariness issue.

24/ Those cases in which we have

ruled that the admission of an unlawful

confession was harmless even where it was

the only confession admitted generally

have been cases in which, unlike this

case, there was direct, uncontradicted,

physical evidence of guilt -- such as that

the defendant was found holding the drugs

he was charged with possessing. E.g.

Harryman v. Estelle, 616 F.2d 870, 876-78

& n.l5 (5th Cir.) (en banc), cert. denied,

449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76

(1980) (unlawful confession that contents

A-45

of condom found on defendant's person was

heroin was harmless in light of laboratory

tests identifying the substance to be

heroin); United States v. Hill, 430 F.2d

129, i132 (Stu Cir, 1970) (defendant's

Statement to customs agent that truck

contained liquor was harmless where state

introduced evidence obtained during lawful

search of the truck demonstrating that the

truck did contain liquor).

25/ Furthermore, the erroneous

admission of the confession certainly

affected the conduct of Christopher's

defense. See Harryman, 616 F.2d at 877

n.15.

26/ - Because we conclude that the

confession was inadmissible and therefore

a new trial is necessary, we need not, and

therefore do not, address Christopher's

Other challenges to the denial of his

habeas’ petition. Nor do we _ address

whether the district court properly denied

Christopher's Rule 60(b) motion.

A-46

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 84-5521 and

85-5520

WILLIAM D. CHRISTOPHER,

Petitioner-Appellant,

versus

STATE OF FLORIDA,

Respondent-—Appellee.

Appeals from the United States

District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING

(SEP 3 1987)

BEFORE : GODBOLD, KRAVITCH and HATCHETT,

Circuit Judges.

PER CURIAM:

The petition(s) for reheariny, filed

by appellee, State of Florida is denied.

ENTERED FOR THE COURT:

/s/ Phyllis Kravitch

United States Circuit Judge

William D. CHRISTOPHER, Petitioner,

STATE OF FLORIDA, Respondent.

| No. 82-1293-Civ-JLK.

United States District Court,

S.D. Florida.

March 13, 1984,

EXCERPTS FROM OPINION

FULL TEXT OF OPINION AT

| 582 F.SUPP 633 (S.D. FLA. 1984).

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

JAMES LAWRENCE KING, District Judge.

III. VOLUNTARINESS OF

CONFESS ION

The third issue raised by petitioner

is that (1) his confession was not freely

and voluntarily given; and (2) the police

failed to honor his requests to cut off

questions, in violation of the Fifth,

Sixth and Fourteenth Amendment.

A-48

Specifically, petitioner contends in his

writ that Officers Mills and Young “who

obtained the confession of the Petitioner,

unfairly exploited Petitioner's weakness

for his family and protecting them by

implying that his confession would

preclude their involvement." As to the

second ground, petitioner contends that

the record is clear that he wanted to cut

off interrogation and that the police

officers continued, in violation of his

rights under Miranda v. Arizona, 384 U.S.

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

Again, this issue was fully

considered on appeal to the Florida

Supreme Court which affirmed the trial

court's finding of fact that petitioner's

confession was voluntary and not

coerced. Citing Howell v. State, 66 Fla.

210, 63 So. 421 (1913); Jarriel v. State,

317 So.2d 141 (Fla. 4th DCA 1975) cert.

denied, 328 So.2d 845 (Fla. 1976).

A-49

Petitioner does not challenge that his

confession was made knowingly and

intelligently.

[7] This Court will not disturb a

trial judge's finding of fact unless it

reaches constitutional dimensions.

Wainwright v. Goode, supra.

[8] Under federal law, the test for

voluntariness is whether the confession

was “extracted by any sort of threat of

violence, (or) obtained by any direct or

implied promises, however Slight (or) by

the exertion of improper influence." See

Brady v. United States, 397 U.S.742, 753,

90 S.Ct. 1463, 1471, 25 L.Ed.2a 747

(1970); Hutto v. Ross, 429 U.S. 28, 30, 97

S.Ct. 202, 203, 50 L.Fd.2d 194 (1976).

[9] This Court has carefully

rev iewed the transcript of the

petitioner's taped confession, the

Suppression hearing, and the testimony of

the officers involved in obtaining the

confession. The Court concludes that the

finding of the trial judge that the

confession was freely and voluntarily

given is fully supported by the record and

that petitioner has_ not suffered a

constitutional deprivation. This ground

of petitioner's claim is clearly without

merit.

The Court also finds, as did the

Florida Supreme Court, that the second

prong of petitioner's claim, that Officers

Mills and Young failed to scrupulously

honor petitioner's right to cut off

interrogation is simply unsubstantiated by

the record. The transcript of the

confession shows that although petitioner

indicated he would not continue, he in

fact did continue to talk. (R. 1177,

1260). The transcript shows that at one

point petitioner indicated he wished to

stop and the police officers honored his

request:

A-51

"Christopher: Well, Look,

I'm just constantly telling lies,

look I ain't got nothing to say

at all, Pete, why I have, you

know, and that's it. I ain't

Saying nothing else.

Mills: Okay.

Christopher: That I'm

charged with two murders, ------ ’

is all I can say.

Mills: Okay, This brings us

up to another point, which has

nothing to do with what we're

talking about. Ah, we're here

from Florida and these warrants,

these warrants are from

Florida. Which you know you have

to be extradited down there.

That can come about several

different ways, you can sign on

whether you want ------ here.

Ah, would you sign a waiver and

go back? (T-68, 69)

Later, the transcript of the Motion

to Suppress hearing reveals _ that

petitioner began asking questions (R.

AAT ie 1260) and continued to_ speak,

voluntarily, confessing to the murders.

(R.1262).

In Edwards v. Arizona, 451 U.S. 477,

486, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378

A-52

(1981), the United States Supreme Court

considered the question whether, after a

susp2ct had invoked his right to counsel

by cutting off questioning until counsel

was provided, that the suspect could

subsequently be interrogated without the

presence of counsel. The Court held that

once the suspect has clearly asserted his

right to counsel, all custodial

interrogation must cease and may not be

resumed until either counsel is provided

and present or until the suspect

voluntarily initiates further

discussion. Edwards, supra, at 488, 101

S.ct. at 1886. In Solem_v. Stumes,

U.S. __, 104 S.Ct. 1338, 79 L.Ed.2d 579

(1984), however, the Court found that the

effect of further interrogation by the

police after a request for counsel was not

Such as to taint the truth worthiness of

the subsequent confession and, therefore,

Edwards was not to be retroactively

= A-53

applied in collateral review of final

conviction.

Applying those standards to the case

now before the bar, the court finds a

lesser standard should be applied where,

as here, the suspect only indicates an

intention to invoke this fifth amendment

right to remain silent and does not

clearly invoke his right to counsel.

Michigan v. Mosley, 423 U.S. 96, 104,

n.10, 96 S.Ct. 321, 326, n.10, 46 L.Ed.24

313 (1975). But even the higher standard

of the right to counsel would not cause a

difference in this case because the

Suspect did not clearly ask for the

assistance of counsel nor did he clearly

discontinue the interrogation. In fact,

the suspect not only voluntarily continued

the interrogation he did _ so without

interruption. This is in Stark

distinction from Edwards where the police

had discontinued the interrogation because

of the suspect's clear request for counsel

and where the interrogation was re-

initiated by the police the following day

by telling the suspect hat he “had to"

talk to them. Further, even if Bdwards

were otherwise controlling in the case at

bar it would not apply because Solem held

that Edwards did not apply retroactively.

This Court finds that petitioner's

confession was freely and voluntarily

given and that the trial judge's actions

in admitting the taped confession into

evidence was proper. Therefore, this

claim for relief must be denied as not

reaching constitutional proportions.

582 F.Supp. at 643-644.

A-55

William D. CHRISTOPHER, Appellant,

STATE of Florida, Appellee.

No. 55698.

Supreme Court of Florida.

Dec. 10, 1981.

EXCERPTS FROM OPINION

FULL TEXT OF OPINION AT

407 SO.2D 198 (1981).

ADKINS, Justice.

407 So.2d at 200.

Appellant presents’. six procedural

issues upon which he relies for reversal

of the sentence of death, remand for a new

trial, remand for imposition of a life

Sentence, or remand for a new sentencing

hearing.

The six issues presented for our

consideration are as follows:

Ae Did the trial court

Systematically exclude for cause

Prospective jurors who did not

state they were irrevocably

committed to vote against the

death penalty, but voiced only

A-56

general, indefinite reservations

to capital punishment, in

violation of the Sixth and

Fourteenth Amendments to the

United States Constitution, and

article I, sections 9 and 16 of

the Florida Constitution?

2. Did the trial court err

in admitting appellant's

confession because (a) he did not

freely and voluntarily confess,

and (b) the police failed to

honor his request to cut-off

questioning, in violation of the

Fifth and Fourteenth Amendments

to the United States

Constitution, and article I,

section 9, of the Florida

Constitution?

3. Did the trial court

commit reversible error in

allowing over defense objections

and a motion in limine, testimony

regarding the sexual relationship

between appellant and his

daughter?

4. Did the trial court err

in denying appellant's motion for

a medical evaluation and_ for

administration of sodium

pentothol at county expense?

5. Did the trial court's

granting of the state's motion to

preclude the appellant from

introducing ev idence of his

polygraph test render the death

sentence unconstitutional?

6. Were the aggravating

factors found by the court

A-57

improper; should mitigating

factors have been found; and did

the mitigating factors outweigh

the aggravating factors?

[1,2] As to the first issue, the law

is settled that the competency of a

challenged juror is a mixed question of

law and fact and is to be determined by

the trial judge in his’ discretion.

Manifest error must be demonstrated before

the judge's decision will be disturbed.

Singer v. State, 109 So.2d 7, 22 (Fla.

1959); Ashley v. State, 370 So.2d 1191,

1194 (Fla. 3d DCA 1979). No such error

has been demonstrated in the case sub

judice.

Turning to the second issue, the

admissibiliy of the confession, we find no

evidence that the appellant exercised his

right to halt the interrogation. The

appellant continued his conversation with

the interrogating deputies of his own free

will.

[3] The test for admissibilty of a

confession is whether it is freely and

voluntarily made. Howell v. State, 66

Fla. 210, 63 So. 421 (1913); Jarriel v.

State, 317 So.2d 141 (Fla. 4th DCA 1975),

cert. denied, 328 So.2d 845 (Fla. 1976).

[4] Appellant claims improper

coercion during the course of the

interrogation. A case in which improper

coercion was found is Jarriel v. State,

cited above. In Jarriel the defendant was

improperly urged by direct or implied

promises to make a_= statement. The

interrogating officer told defendant his

wife would be arrested unless defendant

made a statement. 317 So.2d at 141. No

such urging or promising took place in the

case sub judice. The confession was

freely and voluntarily made, and was,

therefore, properly admitted.

* * *

407 So.2d at 200-201.

A-59

—o es

EXCERPT FROM STATE TRIAL COURT HEARING ON

CHRISTOPHER'S MOTION TO SUPPRESS

HELD MAY 19, 1978, IN THE CIRCUIT

COURT FOR THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BEFORE THE HONORABLE CHARLES T. CARLTON,

CIRCUIT JUDGE

x x x

DIRECT EXAMINATION OF ASSISTANT STATE

ATTORNEY PELLECCHIA TO OFFICER YOUNG

[PROSECUTOR] : Q. Did there come a

time when the tape recorder was turned

off?

{OFFICER YOUNG’: A. Yes, there was.

Q. And approximately how long after

you turned on the tape recorder did you

turn it off?

A. I'd say about an hour and four

minutes.

Q. At whose request was the tape

recorder turned off?

A. Mr. Christopher.

Q. You are pretty precise with your

timing. Did you have occasion to Play the

tape recently?

A. Yes, sir.

Q. So, the defendant requested that

the tape recording be turned off? Was the

tape in fact turned off?

A. Yes, I turned it off.

Q. And what occurred then?

A. He was more or less talking to

. Lieutenant Mills at that time, that he

asked a question again in reference to his

daughter Norma, where she was at, and then

asked what charges were pending against

his sister and brother.

* * *

(R. 1176-1177)

A-61

EXCERPT FROM STATE TRIAL COURT HEARING ON

CHRISTOPHER'S MOTION TO SUPPRESS

HELD MAY 19, 1978, IN THE CIRCUIT

COURT FOR THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BEFORE THE HONORABLE CHARLES T. CARLTON,

CIRCUIT JUDGE

x x x

CROSS EXAMINATION OF OFFICER YOUNG (DEPUTY

SHERIFF, COLLIER COUNTY, FLORIDA) BY

DEFENSE COUNSEL HINES.

[DEFENSE COUNSEL HINFS]: Q. I notice

that at one point during your conversation

with the defendant -- this is during the

first statement; this is later, at the

point in the statement where you have

pretty much told Christopher, "Look, we

don't believe what you are telling us. We

know what happened down there and what you

are telling us is not consistent with what

we know." He made the statement -- I

believe you were the person who said this:

"How could Charlie shoot himself three

times?" It's a fact, is it not, that

Ahern was not shot three times?

A-62

[OFFICER YOUNG]: A. No, sir, he was

not.

Q. Why did you make that statement?

Wasn't that somewhat deceptive, to make

that statement to the defendant?

A. I don't know why I said three

times, to tell you the truth.

Q. I notice at the bottom of page 16

of the statement that Christopher makes

the statement in response to question from

Mills, "I told you that before that you're

being accused of both murders."

Christopher's response: "Okay. Then

I've got nothing else to say."

But, however, the questioning then

continues for three more pages. of

transcript. Is that not true?

A. Yes, sir.

Q. And it's a fact, is it not, that

Captain Smith called down and ordered the

release of Pam Scott and Pete Scott during

the interval of time that the tape was

A-63

off?

A. I don't know when the call was

made to release them. All I know is what

I heard him tell Christopher.

Q. What did he tell Christopher?

A. I heard him, "Tell Mary to pick

Pam and Pete up."

* * *

(R. 1204-1205)

A-64

EXCERPT FROM STATE TRIAL COURT HEARING ON

CHRISTOPHER'S MOTION TO SUPPRESS

HELD MAY 19, 1978, IN THE CIRCUIT

COURT FOR THE TWENTIFTH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BEFORF THE HONORABLE CHARLES T. CARLTON,

CIRCUIT JUDGE

* * =

DIRECT EXAMINATION OF POLICE CAPTAIN SMITH

(COMMANDER OF HOMICIDE SQUAD, MEMPHIS,

TENNESSEE) BY ASSISTANT STATE ATTORNEY

PELLECCHIA.

[PROSECUTOR]: Q. You stated that

sometime around 7:15, the defendant was

brought up to your office. Who was

present in your office at the time the

defendant arrived?

[CAPTAIN SMITH]: A. There was

Lieutenant Catcheron who is now retired

from the Memphis Police Department,

Sergeant Boswell from the Memphis Police

Department, myself from the Memphis Police

Department, Harold Young from Collier

County, and Curtis Mills from Collier

County -- sorry, Boswell, I left him

A-65

Out. He was also there.

Q. Would you relate to the Court,

please, Captain Smith, the chronology of

events which took place upon the

defendant's arrival?

A. When Mr. Christopher came in, he

was introduced to all of us by Curtis,

Lieutenant Curtis Mills. And he _ was

advised of his rights as per your rights

card by Lieutenant Mills and was set down

and was talked to in our presence. And

during that time, he did give a taped

statement, a statement on tape.

Q. Okay, how many times in your

presence was he advised of his rights by

Investigator Young?

A. About three times, three times by

Investigator Young. And certainly he was

advised by our arresting officer which is

a policy of the police department.

Q. At the time that he was advised of

these various rights, did he ever invoke

A-66

his right to counsel?

A. No, sir, he never -- never at any

time did he request an attorney or anyone

else.

Q. Did he ever invoke his right to

remain silent?

A. No, Sir.

Q. Okay, after he was advised of his

rights, then I understand that a tape

recorder was turned on?

A. That's correct.

Q. And you testified that he was

readvised of his rights?

A. On the tape recorder, yes, Sir.

Q. Did there come a point in time

when the tape recorder was turned off?

A. Yes, sir.

Q. And at whose request was this?

A. Mr. Christopher's request.

Q. Okay, and what occurred after he

requested the tape recorder be turned off?

A. Well, it was -- he was wanting to

A-67

know what -- what Norma was going to be

charged with, and a lot of conversation

was going on. We were more or less having

coffee, cigarettes, taking a break. And

continuous talking was going on between

Lieutenant Mills and Bill Christopher.

And occasionally Bill would ask me for a

cigarette; I'd give him a cigarette, give

him a cup of coffee, complained of being

cold without a jacket in our jail. We

assured him we would get him a jacket, so

he would not be cold up there any

longer. And he again gave the statement

of murder-suicide.

Q. And this is off the tape - similar

taped statement that he gave on the tape?

A. That's correct, it was. And the

conversation went along, and then I asked

Lieutenant Mills if I might say something

to Mr. Christopher, and he said yes. And

at that time I told Mr. Christopher that

the facts did not sustain the -- the story

that he was telling were not not sustained

by the facts as we knew them from the

investigation, that he undoubtedly had a

logical reason for doing what he did, that

it might be logical to him. It was -- it

might not be logical to me, nor would it

be logical to Curtis Mills, but I'm sure

it would have been logical to Mr.

Christopher. And I also told Bill that he

might as well go ahead and tell the truth

about it and get everybody in there out of

any involvement whatsoever.

Q. And then what occurred?

A. Then he went back and did orally

confess to the murder of the two people

here in Naples, Florida.

Q. Okay, and subsequent to this --

when you say oral, you mean, nontaped --

A. Nontaped, yes.

Q. -- statement? Okay,after this

statement, what then occurred?

A. Then Investigator Young asked if

A-69

he could -- if he would write it down in

an Oral -- in a statement form. And Bill

advised that it would be all right to put

it back on the tape, and he didn't write

too well. So, therefore, the tape was

turned on again. He was again advised of

his rights and he did give a statement on

the tape the second time.

Q. Okay, at some point in time, did

the defendant request to make a phone

call?

A. Yes sir, he really did. Just

right after the confession of the killing,

he requested to call his mother, Mary

Steele (phonetic), and permission was

granted by me to use my phone in my office

which was setting right there on my desk

as it shows -- or near my desk in there.

And while he was talking to Mary Steele,

he asked what was going to happen to Pete

and Pam. And I told -- I looked at

Lieutenant Mills and asked if he wanted to

A-70

pursue the prosecution of aiding = and

abetting, and he said no. And I said

well, I don't either. And I told Bill to

tell Mary to come on up, pick -- when she

brought the clothes and cigarettes, to

pick up Pete and Pam and take them home

with them.

Q. Up to this point, had there been

any discussion -- prior to that point, had

there been any discussion during these

interviews with regard to releasing Pam or

Pete or Norma, for that reason?

A. No.

Q. And this is the first time it came

up with which he gave you an oral

confession?

A. That's correct.

Q. And then I take it after the

telephone call and the conversations and

the coffee, then you went back on the

tape, and he repeated some of what he had

told you off the record -- off the tape?

QO.

at that

Yes, sir.

Then the interview was concluded

time?

That's correct.

— -

(R.1228-1233)

EXCERPT FROM STATF TRIAL COURT HEARING ON

CHRISTOPHER'S MOTION TO SUPPRESS

HELD MAY 19, 1978, IN THE CIRCUIT

COURT FOR THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BEFORF THE HONORABLE CHARLES T. CARLTON,

CIRCUIT JUDGE

x x x

DIRECT EXAMINATION OF OFFICER MILLS

(DEPUTY SHERIFF, COLLIER COUNTY) BY

ASSISTANT STATE ATTORNEY PELLECCHIA.

[PROSECUTOR]: Q. Okay, did there come

a point in time of this first taped

statement when a request was made to turn

off the tape recorder?

[OFFICER MILLS]: A. Yes, Sir.

Q. And who made the request?

A. Christopher did.

Q. Okay, and what occurred right

after that?

A. He asked us, he said, "Well, now

what's going to happen to Norma" and his

half sister, Pam.

Q. Okay, and who responded to that

question or those questions?

A-73

A. I asked him the question, I said,

"As far as Pete and Pam goes, I don't

know. These things happen in Tennessee."

Q. Okay, what dtd you say about

Norma?

A. I said, "But Norma is being

charged aS a runaway, and she may be

returned to Florida under those charges."

Q. At this point in time, had you

discussed with Captain Cmith or any of the

officers, Memphis Police Department, that

were present during this interview, as to

the disposition of Pam and Pete as to

whether or not they would be charged,

released, or whatever?

A. We had been told that they were

arrested at the same time he was. We --

we hadn't discussed what the disposition

of that case was or would possibly be.

Q. Okay, then what occurred after the

discussion about Norma, Pam and Pete?

A. He reassured me again that Norma

had nothing to do with this situation, and

that he had taken her to school that

morning and dropped her off. And_ she

wasn't there; she didn't have anything to

do with it. And then he went through

basically the same statement he had given

me earlier about how there was a suicide-

homicide situation.

Q. Okay, at some point in time while

this tape recorder is turned off, did you

indicate to him in some way that you had

facts indicating that it was different

than he was telling?

A. Yes, sir, after he told -- gave me

this statement through again, I told him

that what he was telling me didn't match

up with the facts in the case, and that I

didn't really believe what he was telling

me, that I had every reason to believe

that it was different.

Q. Okay, up to this ‘eoine in time,

had Captain Smith done any of the

A-75

interrogating?

A. No, sir, he hadn't said anything.

Q. Did Captain Smith, after you made

that statement, make any sort of a

Statement to Christopher?

A. He talked to him briefly, just

told him that what had happened in killing

these people at that time might have

seemed logical to him, but even though

that reason wouldn't be a logical reason

to himself or to me or to anyone else in

the room, but at that time it probably

seemed logical to him.

Q. Okay, and what occurred after

that?

A. Bill didn't say anything right

away. He just kind of remained silent

there for a few minutes, and then he

Started talking about when Norma was born.

Q. That would have been 15 years ago?

A. Yes, sir, he went back telling me

that when she was born, he was in the

A-76

penitentiary and that she was given away

without his knowledge. He didn't know

anything about it until he got out of the

penitentiary, that he couldn't find her,

that nobody would help him find her.

Q. Okay, were you questioning him

about these points?

A. No, sir, he told me about the

events that happened throughout this 15

year period and led up to right up until

when he met her a couple of years before

that and how he went to Florida because of

a -- he waited to be with her, and he had

heard about George Ahern pulling these

things on her, looking at her undercover

and so forth. And after he got down here,

this thing happened. He killed both of

them.

Q. And he admitted that to you off

the statement?

A. Yes, sir.

Q. And so it was a rather lenghty

A-77

Statement he made, I take it, covering a

Span of some 15 years?

A. Yes.

Q. And his relationship with the

different parties in this particular case.

A. Yes.

Q. The witnesses? Okay, then what

occurred subsequent to him making these

admissions to you?

A. I talked to him a few minutes.

Then I asked him about Mrs. Ahern, how it-

happened that she got killed. And he

explained to me why he killed her. And so

then we filled in some of the details on

there, talked with him about some of the

details of the thing. Then we kind of

took a break. We got a cup of coffee.

The ones that smoked, smoked cigarettes.

Of course, anyone that wanted to, smoked

during the whole time during that

conversation, but Bill asked could he make

a telephone call.

Q. And was he permitted to do so?

A. Yes, sir, Captain Smith provided

him with one of the phones there in their

office. He said he wanted to call his

mother.

Q. Do you know -- did he indicate his

purpose for wanting to call his mother?

A. I didn't really understand exactly

why. I mean, he didn't tell me exactly

why he wanted to call; he just wanted to

call her.

Q. What occurred while he was on the

telephone?

Q. While he was talking on the phone,

he put his hand over the phone. He turned

to Captain Smith, and he says, "What about

Pam and Pete?" He says, "What can I tell

her about them?”

So, Captain Smith looked over to us,

and he says, "Do you guys want to push

this thing against them?" He says, "Do

you want to go to trial on their charges?"

A-79

And we say, "No, we really have no

reason to; we have no reason to do that."

So, he turns back to Bill. And he

Said, "Well, why don't you just tell her

when she comes down, to bring your

clothes. She can just pick them up; we'll

go ahead and release them."

Q. Prior to this time, had any

indications been made or any statements

been made to the defendant, Christopher,

that Pam, Pete, or Norma would be

released?

A. No, sir.

Q. And this is subsequent to his

having given you a = long. narrative

Statement ending in his admission that he

killed George Ahern and Bertha Skillin?

A. Yes, sir.

Q. Okay, and then what occurred after

the telephone conversation?

A. We set back down, talked for a few

minutes there. And Investigator Young

A-80

asked Bill if he would write this

statement out for us. And he says,

"Well," he says, “I don't want to write

it." He says, "Why don't we just turn the

tape back on and tape it."

Q. Okay, and was that in fact done?

A. Yes, sir, it was.

Q. And was he advised of his rights

again a third time?

A. Yes sir.

Q. On that tape?

A. Investigator Young advised him of

his rights when he started it on the tape.

QQ. Did he indicate that he understood

his rights?

A. Yes, sir.

Q. Did he express a desire for an

attorney?

A. No, sir, he didn't.

Q. Did he express a desire to remain

silent?

A. No, Sir.

A-81

Q. Okay, Lieutenant Mills, did you at

any time, at any point in time, promise

the defendant anything in order to get him

to make statements?

A. No, sir.

Q. Did you hold out any hope of

reward?

A. No, sir.

Q. Did you threaten him?

A. No, sir.

Q. Did you coerce him?

A. No, sir.

Q. Did you ever indicate to him that

you would be lenient toward Pam, Pete

and/or Norma or himself in order to get

these statements?

A. No, sir.

Q. Did anyone in your presence do so?

“ae No, sir.

Q. Did you ever have an occasion

prior to meeting Christopher and being

with Captain Smith or some of the Memph is

A-82

investigators that were in Captain Smith's

office, to kind of sit down with them and

devise a scheme that you would all detain

Pete, Pam and Norma in custody, let the

defendant know that in the hopes that this

might coerce him, so to speak, or induce

him to give you statements, hang it over

his head, so to speak?

A. No, sir.

Q. That never occurred?

A. No, sir.

Q. And these statements were freely

and voluntarily given?

A. Yes, sir.

Q. And he even indicated that on the

second statement at the end of that

statement, did he not?

A. Yes, sir, he did.

MR. PELLECCHIA: No further questions.

* * *

(R. 1260-1267)

A-83

EXCERPT FROM STATE TRIAL COURT HEARING ON

CHRISTOPHER'S MOTION TO SUPPRESS

HELD MAY 19, 1978, IN THE CIRCUIT

COURT FOR THF TWFENTIFTH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BEFORF THE HONORABLE CHARLES T. CARLTON,

CIRCUIT JUDGE

x * x

CROSS-EXAMINATION OF OFFICER MILLS (DFPUTY

SHERIFF, COLLIER COUNTY) BY DEFFNSE

COUNSEL HINES.

[DEFENSE COUNSEL HINES]: Q. You were

involved in the investigation of these

homicides or what you believe to be

homicides from the -- from day one, so to

speak, where you not? You were there at

the scene when the bodies were found?

[OFFICER MILLS]: A. Yes, sir.

Q. And you had all the information

that your invesigation here had developed

about those murders, what you believed to

be murders, the autopsy results, how many

times these persons were shot, the

physical evidence? You knew all of that

when you went to Memphis, did you not?

A-84

A. We had a preliminary report from

the autopsy. We didn't have the doctor's

finished report from the autopsy report.

But we had talked with him in person. We

got a preliminary report from him.

Q. Well, based on the information you

had prior to going to Memphis and based on

your experience as an investigator with

this department, you believed these deaths

to be homicides, did you not?

A. Yes, sir.

Q. You did not feel this was a

murder-suicide situation, did you?

A. No, sir.

Q. When Christopher gave you this

first statement consistenting of 19 pages,

you did not believe it to be a truthful

statement?

A. No, sir, I didn't.

Q. And subsequently, he gave another

statement which you feel is a truthful

statement as to what happened there, is it

A. I believe it's substantially the

truth, yes.

Q. Zz believe that the second

statement he made is substantially

accurate based on your knowledge of the

case?

A. Yes sir.

Q. And the physical evidence and so

forth?

A. Yes, sir, I do.

A. I notice looking at the statement,

that there's a substantial portion of

at. I'll show it to you if you want me

to, but the last -- about the last six

pages of the statement is basically you

make a -- you make an accusation against

Christopher. You say we're accusing you

of these murders, and then you begin to

talk about the fact that you know the

facts which you do. And you don't feel

that what he's telling you is accurate

A-86

based on the facts as you know them to be,

right?

A. Yes, sir, I'll -- in response to

this question, I answered his question

that he was being accused of these

murders.

: Q. Okay. So, at that time you were

attempting to extracate a statement from

him that would be consistent with the

facts, were you not?

A. I wanted to explain to him why I

didn't feel what he was telling me at that

time to be the truth.

Q. Hoping that he would then tell you

what you believed to be the truth, the

second statement?

A. I felt that we sould know exactly

what happened.

Q. Okay, this would have been, in

essence, a type of questioning technique,

hoping that he would then come around and

tell you what -- what really happened?

A-87

A. I don't know if you call it a

technique; it's just part of our

conversation.

Q. Okay, I noticed that at one point

in the statement towards the end there, I

think it's about, oh, three pages from the

end, that the defendant makes -- says that

he doesn't want to say anything else. But

you went on and questioned him after that,

did you not?

A. I would have to see that to know

what portion you're talking about.

Q. Bottom of page 16 there.

A. Yes, sir, I recall this. If you

listen to the tape on this, you can tell

that when he said this, he just kept on

talking.

Q. Okay.

A. It was no break in his

conversation or anything, he -- he -- he

just made one statement right after

this. He said that I have nothing else to

A-88

say, and he just kept right on talking.

Q. He went right on talking after

Young asked him another question?

A. It doesn't show on the transcript,

but if you listen to the tape, there was

actually some comments by him between the

time -- while Young was making that

statement. They were actually talking

over each other; he kept right on talking.

Q. This statement, the first

Statement, there's several references here

in this statement to the family of the

defendant, to Norma. Don touched on some

of them during the -- during his

questioning of you, and you would -- you

would acknowledge, would you not, that

this was -- that the fact that his family

was in custody and was being held on

possible aiding and abetting charges was

involved in this first statement, was it

not? It was discussed?

A. Not at great length. I think I

A-89

explained to him that -- well, it was

after the tape was turned off, I explained

to him that we had nothing to do with

that; that was a Memphis charge. During

that first statement, I don't recall

talking to him about his family other than

the fact that Norma was caught up in this

situation.

Q. All right, do you recall the

defendant requesting that he be given a

polygraph examination concerning whether

he had in fact committed these homicides

as you had contended that they are

homicides during the time that the tape

was turned off?

A. I don't recall him asking for a

polygraph on the homicides at all. He

mentioned the fact that someone had said

that he was having sex with Norma and that

he would take a polygraph regarding that

point. I don't recall him mentioning a

polygraph about Norma Sands.

A-90

——"

Q. All right, how long did the

questioning of the defendant -- how long

were you in the room with the defendant

prior to the tape being turned_= on

initially?

A. Possibly five minutes, no more.

Q. And this time period mainly

consisted of an introduction of all the

persons present to the defendant, right?

A. Yes, sir.

Q. And there was no other

conversation to speak of?

A. Nothing that -- you know, we just

told him we were from Naples. And we were

investigating these homicides, and_ we

wanted to talk with him.

Q. Did Officer Boswell have = any

conversation with the defendant at that

time?

A. No, sir, not that I remember.

Q. Did -- to the best of your

recollection, do you ever remember him

A-91

requesting the presence of an attorney at

that time or at any other time?

A. Never, no, sir.

* ae *

(R. 1269-1274)

A-92

EXCERPT FROM STATE TRIAL COURT HEARING ON

CHRISTOPHER'S MOTION TO SUPPRESS

HELD MAY 19, 1978, IN THE CIRCUIT

COURT FOR THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

BEFORE THE HONORABLE CHARLES T. CARLTON,

CIRCUIT JUDGE

TRIAL COURT'S ORAL

PRONOUNCEMENTS /F INDINGS

THE COURT: All right. Well, the

Court's going to adopt the laws set forth

in the 1976 Florida Supreme Court, and the

Court is going to find on this particular

issue that the defendant, Mr. Christopher,

was properly explained his rights, and

that he understood and appreciated them.

It is based on the fact that he was

A-93

advised of his rights three different

occasions. And on one occasion, he

definitely stated that he did waive his

right to have an attorney, or words to

that effect.

(R. 1287)

THE COURT: All right. Well, the

Court's of the opinion that, first of all,

the Court can only make a decision on

these type of motions of what is before

the Court. The Court has listened to and

heard the statements as recorded by the

law enforcement officers. And the Court's

of the opinion that the law enforcement

officers in the first instant did not

offer any promise or léniency for the

defendant's family, and that the statement

was not based upon hope for any leniency

because the officers just did not offer it

to him in examining the record as a whole.

A-94

And two, even if in construing the

matter in the defendant's most favorable

light, the Court's of the opinion that the

Heaton case at 326 Southern 2nd would

control, and that case has a similar fact

situation as ours. But the Court is going

to consider the -- first of all, there was

“no promise of leniency made, and that's

the basis of the Court's ruling. The

Court will deny the motion to suppress the

confession.

[PROSECUTOR/MR. PELLECCHIA] : Your

Honor, may I have a specific ruling with

regard to that if the Court make a finding

on the record, the confession was freely

and voluntarily, and intelligently made,

and request also that the Court rule that

the statements of Mr. Christopher to the

officers who have testified here today

should be admissible, ruled as admissible

at the time of trial.

THE COURT: All right, the Court has

A-95

previously ruled that Miranda has been

complied with. The Court feels that the

defendant was explained his rights, and

that he understood and appreciated what

his rights were.

The Court is further ruling that the

confession was freely and _ vcluntarily

made, and it was not made because of

threats or force or promises of reward or

leniency to the family.

And the Court's of the opinion that

the motion to suppress is denied, and that

if it is submitted into evidence at the

trial, the Court will admit the

confession. Anything further, gentlemen?

” * *

(R. 1287, 1297-1298)

A-96

TAPE RECORDING #1

YOUNG: This will be an interview with

William David Christopher. The

date is September 22, 1977.

Present at the interview will be

Lt. Curtis Mills, Collier County

Sheriff's Department, Sgt. J.C.

Boswell, Memphis P.D. Homicide,

Lt. McCachren, Memphis Homicide,

and Captain Tommy Smith, Memphis

Homicide. Bill, before we go any

further, with this tape, you've

been advised of your rights once

and I'm going to read them to you-

again.

CHRISTOPHER:

Okay.

YOUNG: You have the right to remain

silent. Anything you say can and

will be used against you in a

court of law. You have the right

to talk to a lawyer and have him

present with you while you are

being questioned. If you cannot

afford to hire a lawyer, one will

be appoitned to represent you

before any questioning if you

wish. You can decide at any time

to exercise these rights and not

answer any questions or make any

statements. Do you understand

each of these rights as I have

explained to you?

CHRIS TOPHER:

Yea.

YOUNG: Having these rights in mind, do

you wish to talk to us now?

A-97

CHRISTOPHER:

Yes.

YOUNG: Okay. The time now is 7:36 p.m.

CHRISTOPHFR:

Okay.

MILLS : I want to ask a couple of things,

how old are you?

CHRISTOPHER:

35.

MILLS: How far did you go in school?

CHRISTOPHER:

Well, when I was locked up, I

completed my GED and around about

a year and a half of college.

MILLS: Do you read and write the English

language?

CHRISTOPHER:

Yes.

MILLS : You have no problems

understanding when we talk to you

in the English language in other

words?

CHRISTOPHER:

No, I understand good.

YOUNG: Bill, we started out awhile ago,

we were talking about che death

of Bertha and George Ahern.

CHRISTOPHER:

Right.

YOUNG: That would be Bertha Skillen and

George Ahern, and you were

A-98

telling us that you did have

knowledge of that death, is that

correct?

CHRISTOPHER:

Yes, sir.

YOUNG: Would you go ahead in your own

words and tell us about that day

CHRI©“ TOPHER:

Okay.

YOUNG: -- and any previous knowledge of

this incident?

CHRISTOPHER:

Okay. I'm just going to go ahead

and just start from what I know

about it and we can play it when

we get back into other details

about these phone calls and

ladies and all that stuff.

YOUNG: Right. We -- we may have to

speak up a little bit more.

CHRISTOPHER:

Okay. At approximately § ten

minutes after 7:00 I left to

carry my daughter, Norma Gay

Sands to Lely High School.

YOUNG: This is in Florida?

CHRISTOPHER:

Right, Naples, Florida. When I

left from taking her to _ school

that morning, I told her that I

would pick her up about 12:00

o'clock, because Boots and

Charlie, they deliver those Meals

on Wheels, they take food around

A-99

to older people that couldn't get

out.

YOUNG: Yes.

CHRISTOPHER:

So I knew that they'd be gone

before then, at where we could

get our, you know, get our stuff

out of the house. Like I said,

we had been planning on me and

her leaving for the last 3 or 4

days.

YOUNG: You had planned this previously?

CHRISTOPHER:

Yeah.

YOUNG: About leaving? Then you knew --

CHRISTOPHER:

Several people knew about it, I

believe even Boots knew about

it. But anyhow, to get back to

this, I -- I got back to the

house and somewhere around 8:00

o'clock, I had a cup of coffee

with Boots, we talked for a few

minutes, and she got a phone

call, and some lady. Like I

said, I'm not sure if it was a

long distance or what, but I knew

it was upsetting her. Okay. Her

and Charlie was having a_ few

words about it and when they did,

I told them I'd be back. I went

down to the construction site in

the back of the Glades where the

company that I had supposed to be

working for were working, and

there wasn't but one guy back

there, and uh, he told me that

the rest of the crew was to be

A-100

back shortly.

YOUNG: Was this the Glades Country Club?

CHRISTOPHFR:

Yeah, the condominiums’ there.

Okay. I came back to the house,

I went to the 7-11 too, and I got

a couple beers. I come back to

the house, wait a minute, I'm

getting mixed up. Boots was gone

when I came back to the house.

YOUNG: This was the first time?

CHRISTOPHER:

Yeah. Yeah.

YOUNG: At 8:00 o'clock?

CHRISTOPHER:

Well, it was after 8:00, I guess

it was pretty close to 9:00.

YOUNG: When you came back she was gone?

CHRISTOPHER:

Yeah.

MILLS: When you came back from taking --

CHRISTOPHER:

Yeah. I'm sorry.

MILLS : -- Norma to school?

CHRISTOPHER:

That's right. Uh, yeah. That's

after I went down the first time

uh, to the, it's right behind the

parking site, you know, four or

five buildings back, where they

got a construction site going up

back there. And Bootsie's car

A-101

was gone when I first got back.

YOUNG: That was around 8:10 or 8:15

right? .

CHRISTOPHER:

Yeah. This is after I had a cup

of coffee with her. I went down

there, I wasn't down there too

long, and I went to 7-11 and got

two beers and come back -to that

site, and then came back by the

house. Boots was gone, and uh,

Charlie told me that as soon as

she got back whatever, that's

when me and him would go to the

bank. So I left from there then

and went back down to the

construction site, and most of

the crew was down there then, and

I sat down there and talked to

these guys, and I guess I messed

around a little over an hour.

YOUNG: Did anybody talk to you there?

CHRISTOPHER:

Uh, yeah, one of the boys there,

I think he was one of the

assistant foremen, his name was

Gary.

YOUNG: What about the last name?

CHRISTOPHER: R

My mother's got my billfold with

the boy's address, his name and

everything, name and “*‘elephone

number on there. And I gave her

my billfold yesterday. Okay.

When I come back to the house,

like I say, it had to be in the

neighborhood of_ 10:00 o'clock, or

a little bit after, Charlie met

A-102

YOUNG:

me at the door. I mean, so I

could go in, and he come on out

and said come on we'll run on

down to the bank now, and instead

of taking my car, we took

Bootsie's car. He handed me the

keys and told me to drive.

Charlie don't like driving

much. Okay. We got down to the

bank and pulled into the drive-in

window, uh --

What bank was that?

CHRISTOPHER:

YOUNG:

Citizens Bank.

Of Naples?

CHRISTOPHER:

Yeah. And uh, the lady inside

the teller's cage told us, that

uh, Mr. Ahern said, you'll have

to come inside to see one of the

gentlemen upstairs or something

like that, they had a hold on

$300 or something of his, you

know, in his account Or

something. I think what he had

done, he had borrowed a $1,000 or

withdrew a $1,000 out of his

savings and put _ it in his

checking account a few days

before or something and, he had

$306. I think $306 odd dollars

and some odd cents left. Okay.

So I pulled back in front of the

bank and he told me to come on

with him and I'll explain this.

He called the guy's name upstairs

that he talked to. So, we went

upstairs and he told him, you

know, he said, my friend here

Charlie, he knew I was leaving

A-103

YOUNG:

that day, he said my friend here

needs to borrow some money, you

know, for his car, he's got to

make a trip, and uh, he found out

exactly what the hold was on his

money, and about his’- checks

coming in and all, so the guy

told him some facts, that'd be

all right we'll just put a hold

on one of his checks, which I

think one of them was $400 and he

got a couple more, you know, a

month 300 and something or over

$400 whatever. So, he just told

him he'd put a hold on the check

you know, and uh, ail I asked

Charlie for was $200. Well he

wanted to withdraw all of it out

of the bank, well the guy told

him he said that it would be

best, you know, to leave

something in here, just go ahead

and take $300 and leave the $6

whatever it was, that way we

could keep your account open and

everything, so that's what he

did, and uh, he had to give him a

little slip to go back downstairs

to the teller, you know, to get

the money. So, me and him went

back downstairs and the guy came

down right after that, he had to

make another withdrawal slip, and

he presented this to, I think she

was a Spanish lady, there was two

tellers standing there, and uh,

they give him the money $300 you

know, and uh --

Were you with him inside?

CHRISTOPHER:

Yeah. He handed the money to me,

and we went on back out to the

A-104

YOUNG :

car, and started back you know,

to the house. So, when we pulled

up in front of the house, you

know, and started to get out and

get in, I asked him if I should

lock the door of the car, ‘cause

she always keeps it locked, and

he said no, that's all right,

just, you know, bring the keys,

he said, let me have the keys.

So handed the keys, and we

started back in the house like,

and he stopped, and he says man,

would you like to have a beer. I

said sure, I knew I had three

beers in the refrigerator.

Whether he had drank them or not

I don't know, he drank, you know,

2 or 3 six packs a day. He said,

why don't you go down and get us

a six pack then.

What time was this now Bill?

CHRISTOPHER:

YOUNG:

Well, like I said, it had to be

around. 10:00 o'clock when I got

back to the apartment. Now

however long it takes to drive

from there to about two and a

half miles, it's about’ three

miles from there to Citizens

Bank, that's three and a half,

you know, going down whatever

Street that is out in front out

there, by the time it took us to

talk to the teller, go inside and

talk to the man upstairs, and

drive back, uh, it couldn't have

been more than an hour I guess.

If it was that long.

It must have been about 11:00

o'clock then, when you got back?

A-105

CHRISTOPHER:

I imagine so. Okay. I knew that

they had to get ready to go onto

the -- I mean, the Meals on

Wheels thing, well, instead of

going straight on out to the car

and leaving to go and get a six

pack, Charlie went on in the

house. All right, now I just

knew that I had another pack of

cigarettes you know, inside the

house, because I just about

smoked the whole pack, so I went

inside, I knew I had them laying

On the chair. I went in to get

them, and Charlie turned around

the looked at me when I opened

the door, you know, he looked at

me kind of funny. He said what's

the matter? I said, I left my

Cigarettes here, okay. I see a

Spot of big blood in front of the

refrigerator, I said, damn

Charlie, what's the matter. He

Said, I hear the water running

back in the bath. He Said, Boots

cut her finger real bad, well I

never thought no more about this,

you know. Never thought nothing

else about it. I said, I'll be

right back. So I turn and walked

On out then, and went out and got

in my car. I left went around by

the Glades and come back up

around by the fire department to

the 7-11. I know that man would

tell you the same thing because I

would go over there almost every

day. I got a six pack and I got

two packs of Pall -- I mean,

Marlboro 100s for my daughter,

and got me two packs of

Cigarettes. I came back, Charlie

was in the kitchen, and things

A-106

looked like he had something down

there wiping that blood up, you

know off things, and then I seen

kind of faded tracks on the

carpet, you know. And Charlie

looked at me kind of funny, he

say, did you get the beer? I

said, yes. So I set the beer

down on the, on the table. He

was standing right there at the

kitchen, in front of the phone.

Boots' purse was sitting in the,

there was a chair sitting

there. And I kept looking at

that, you know, and I felt well

hell, if somebody cut’ their

finger, why would there be just

one big puddle, it was like it

would be some splattered, you

know, everywhere. And uh,

Charlie got one of the Budweisers

open, and took one drink out of

it, and set it down. I opened me

one, I had already drank one out

there by the time I come back to

the house, and I opened another

beer and uh, he said I'll be back

in a minute. All right. I went

over there and sat down on the

white chair by the front door,

the t.v. was on. The doors, I

know that morning when I left

were open, the sliding doors, and

this window beside me, the long

window was open. All right. It

was closed, the air conditioner

wasn't on then, but the

thermostat had kicked it off or

whatever, but the doors’ were

shut, and the little iron bar was

still there in front of the one

in the living room. I looked at

that and I kept looking up and I

kept hearing the water running

A-107

back there, but I never did hear

Boots' name, and I couldn't have

been sitting on that arm of that

chair two minutes, I heard a

gunshot.

YOUNG: Well, where did the gunshot come

from?

CHRISTOPHER:

Bedroom.

YOUNG: How many bedrooms are in the

house?

CHRISTOPHER:

Two.

YOUNG: Which bedroom was it?

CHRISTOPHER:

There's Bertha and Charlie's

bedroom, there's Norma's

bedroom. They were back -- he

was back in that room. I walked

back there and I knocked on the

door, they always keep a little

do not disturb sign on there,

when the door is’ shut, that

meant, you know, you don't come

in there and mess with nobody,

that's the way Boots was, you

know. And, uh, I knocked on the

door, I said, Charlie? And he

never answered. I opened the

door, Charlie was laying on the

bed, over on that side, next to

that wall, and he had kind of

like headed back his legs were

jerking, you know, muscle spasms,

and I said, Charlie, what's the

Matter with you, and he fell off

in the floor then. Well, my gun,

I say it's my gun, it's not my

A-108

gun, I got the gun from Gene

Carrington, all right, "a

laying on the bed, I looked over

Charlie and Charlie had a hole,

looked like he had a hole with

this blood coming out of his head

right in here somewhere, and it

scared me so bad. You know, I

thought, well lord god, you know,

and I looked over at the bathroom

door, and the bathroom door was

shut too, and there's still water

running in there, you know, the

water's been running for this

length of time. Now you can see

dark splotches --

MILLS: You said the door was closed?

CHRISTOPHER:

Yeah. There was dark splotches

on the floor, on the carpeting,

and I thought, well, Boots is in

there, you know, and I knew then

something wasn't right, and I

opened the door, and I couldn't

open it all the way on account of

Boots, she was laying there. I

pushed the door on open. She had

a blue blanket like it had been

wr apped around her head, I

reached over and felt her neck,

you know, see if like any kind of

pulse, and I felt her and I

couldn't get none, and I went

back to Charlie and I felt his

arm. I didn't do nothing then

but pick up that gun, ‘cause I

knew it was going to be traced to

me. That's where I made my

mistake is picking up that gun, I~

guess, I don't know.

YOUNG: How did Charlie get this gun in

A-109

the first place?

CHRISTOPHER:

I sold it to him.

YOUNG: When?

CHRISTOPHER:

About three days before that.

YOUNG: Okay.

MILLS: How much?

CHRISTOPHFR:

$60. The man had the money, you

know. I told him I would take

whatever he'd give it to me, you

know.

YOUNG: Is this the same gun you had last

night with you?

CHRISTOPHFR:

That was underneath the seat of

the car, yeah. The same 22. All

right, I got that gun, I put it

in my britches, I went in there

to get Norma's -- I got two of

her suitcases she had packed, we

went bought in that store next to

Maas.

YOUNG: Sears?

CHRISTOPHER:

Next to Sears, that big

department store. Anyhow

YOUNG: Maas Brothers?

CHRISTOPHER:

Yeah. I got that pair of pants,

and I didn't attempt to get

A-110

anything else. I was getting my

ass out of there. All right.

I've been in the Penitentiary

three times. This last time I

got violent, and they got me for

assault to commit first degree

murder, okay. I'm gone, done

planned to leave anyhow, both of

them are dead, I didn't get no

pulse off of them, I know they

got to be dead, all right. I

went and picked my daughter up at

school, I signed her out, we

left, that girl didn't know

anything about this until I told

her in Carlisle, Arkansas, and

she didn't believe me, she didn't

believe me until Pat called the

other day and told my mother on

the phone, my mother liked to

fell on the floor, you know,

screaming and hollering, and that

girl didn't believe that until

then.

YOUNG: After -- you say you felt for

Bootsie's neck for her pulse, and

Charlie's arm?

CHRISTOPHER:

I felt for here and I felt for

her wrists.

YOUNG: Where did you check Charlie at?

CHRISTOPHER:

His neck and I checked his wrists

too.

MILLS: Where was he?

CHRISTOPHER:

He was over between the floor and

the sliding doors.

A-111

YOUNG: You checked his throat for a

pulse and you didn't get any?

Okay. Go ahead.

CHRISTOPHER:

We left.

YOUNG: You and a --

CHRISTOPHER:

Right, she didn't know anything

about it.

YOUNG: You picked her up some place

then?

CHRISTOPHER:

I picked her up at Lely High

School.

YOUNG: Did you then go anywhere else in

Naples after you picked her up?

CHRISTOPHER:

Ah, yeah. I stopped at the

service station at a, across from

the Buccaneer Inn, ‘cause they

had a tire down that they'd fixed

for me, I picked my tire up,

‘cause I knew I was subject to

have a flat, and I didn't -- I

had my jack but I didn't have,

you know, the lug wrench or

anything, to jack it up with, and

I stopped at the place the other

side of Citizens Bank, K-Mart,

and tried to get a lug wrench

there, and they didn't have one,

so I had to stop in Ft. Myers, I

went on from there to Ft. Myers.

YOUNG: When you were talking about the

bank you said Charlie got $300

out of the bank, is that

A-112.

correct? Now you may have told

me -- what did he do with the

money?

CHRI® TOPHER:

He gave it to me.

YOUNG: Oh, he gave it to you, you may

have answered that.

CHRISTOPHER:

Yeah. He handed it to me right

there.

YOUNG: Was this just a loan or how were

you to pay that back?

CHRISTOPHER:

Like he told me, he said you pay

it back when and how you can.

YOUNG: You and Charlie got along all

right, I assume?

CHRISTOPHER:

Yeah. We got along real good.

Every time him and Boots would

get into it, I'd go up to his

trailer or up to this place where

he'd drink beer and everything,

in Bonita Springs, and I'd talk

to him, and I'd get him to come

back to the house, you know. I

can prove this by several people.

YOUNG: Oh, I'm not disputing your word,

we've got two dead people we're

trying to investigate.

CHRISTOPHER:

I know that. And I know that I'm

the prime number one suspect, and

I'm just telling you I didn't

kill anyone.

A-113

MILLS: Bill, what did you tell Norma?

CHRISTOPHER:

Listen, I didn't know how to tell

that kid. I mean, this is her

foster mother, she loved her, you

know. I tried for, I don't know,

four or five days you know, to

figure out how I was going to

tell her about it, and hell,

every time I tried to talk to

her, I couldn't do it. SolI just

set her down one night, you know,

and I'd been cutting the news

off, you know, to keep her from

seeing it, you know, and I

thought maybe, I didn't want her

to see it that way, just right on

the news cast, you know. So I

told her, Norma, I got to talk to

ya, I got something I got to tell

ya, and I said I don't think

you're going to like it, you're

not going to believe me, and I

Said, I got something to tell ya,

and I told her.

MILLS: What'd you tell her?

CHRISTOPHFR:

What I told ya all.

MILLS: Did you tell her how you got the

money?

CHRISTOPHER:

She knew when I was getting the

money from Charlie.

MILLS: When you got that money, you had

it when you left Naples?

CHRISTOPHFR:

Right.

A-114

MILLS: What did you do with it?

CHRISTOPHER:

Give it to her.

MILLS: What did you tell her about it

when you gave it to her?

CHRISTOPHFR:

I told her it was money I got

from Charlie.

MILLS: Okay.

CHRISTOPHFR:

I had about $40 outside of that

left of the money that he had

already, you know, I had some

from him buying that gun from me,

he give me three $20 bills for

the pistol. Thag was three days

or four days.

MILLS: Did you explain anything else to

her? How did you tell her that

you got out of the house with the

bags?

CHRISTOPHER:

She knew that they had to go to

this Meals on Wheels thing, I

just told her I had to wait for

the opportune time to take them

out, because I knew, you know, if

I took them out in front of Boots

and them, she was going to raise

hell asking what are you doing

taking all those clothes out of

here.

MILLS: In other words, you told her that

everything was okay then.

Between Boots, and your self and

Charlie?

A-115

CHRISTOPHER:

Yeah.

MILLS: There was no problem that morning

when you left?

CHRISTOPHER:

Right.

MILLS: You say when you left that

morning when you came back, one

time you said you had a cup of

coffee with Boots --

CHRISTOPHER:

Yeah, that's after I carried

Norma to_- school, and uh, I

Stopped and picked up a pack of

cigarettes at the 7-11.

YOUNG: Then you left again to go

somewhere else?

CHRISTOPHFR:

I went down to that site, the

construction site.

YOUNG: Then you came back? One more

time around 10:00? And Boots

wasn't there?

CHRIS TOPHFR:

I didn't see her now.

YOUNG: Was the car there?

CHRISTOPHFR:

Uh -- the first time that I came

back the car wasn't there. Wait

a minute. The first time I came

back, I had coffee with her, the

second time I came back, --. No,

her car wasn't there.

A-116

YOUNG: It wasn't there the second time

either?

CHRISTOPHER:

The second time when I came back

her car wasn't there.

YOUNG: Do you know where she was at?

CHRISTOPHER:

No, I don't have no idea. I know

what I --

YOUNG: That's when you and Charlie went

to the bank, right?

CHRISTOPHFR:

Right.

YOUNG : Okay. Did you drive to the bank?

CHRISTOPHER:

Yeah.

YOUNG: Was there anybody else in the

neighborhood there you saw that

day?

CHRISTOPHFR:

The lady next door.

YOUNG: Did you talk to her?

CHRISTOPHER:

I just spoke to her, you know.

YOUNG: Was she out around the building

or anything when you was just

running in and out? You and

Charlie?

CHRISTOPHER:

I saw her a couple times, she was

doing her wash, you know, we got

A-117

a washer and dryer back there,

and Norma babysat for her son, I

mean with her son.

YOUNG: Right.

MILLS: Uh, Bill. When did you first go

to Naples, this is ah, Okay

now. She's your daughter?

CHRISTOPHER:

Right.

MILLS: When did you first meet her. I

understand there was a period of

time when you never saw her?

CHRISTOPHER:

Fourteen years, twelve years, I

Know, I never saw her, because

she was given up when I was at

the funny farm in 1962.

MILLS: And when was the first time you

saw her?

CHRISTOPHER:

Ah, 1975.

MILLS: Where was that?

CHRISTOPHER:

She came up to visit with, ah,

with her natural mother, Pat

Stock in '75, and Pat called me

on the phone, and asked me if I'd

like to meet my daughter, and I

said, naturally I'd like to meet

my daughter, and I said,

naturally I'd like to see her,

you know, so Pat brought her

over, you know, and I got to take

her swimming several times, you

know, we’ went to the show and all

that kind of stuff.

A-118

MILLS: Now you and Pat Stock were never

married?

CHRISTOPHFR:

Never were.

MILLS: But in '75, I guess the summer,

the summer of '75 you met?

CHRISTOPHER:

Right.

MILLS: After that, when was the next

time you saw her?

CHRISTOPHER:

This year.

MILLS : This is '77, did you skip a year?

CHRISTOPHER:

Yeap. She wasn't up here in "76.

it's been a period of about two

years, close to it that I --

MILLS: She came back up here this summer

and you saw her again?

CHRISTOPHER:

Yeah. She stayed about five

weeks this time.

MILLS: Did you go back down with her?

CHRISTOPHER:

No.

MILLS : What happened there, how'd that

come about?

CHRISTOPHER:

Gene Carrington and I were more

or less, you know, buddy ing

around with each other and ah, we

A-119

had a trailer that was left in

Tennessee, and we moved it, or

started to move it this

Particular day when I left, ah, I

don't remember what date it was.

MILLS: She had already went back?

CHRISTOPHER:

Yes. She'd been back two or

three weeks.

MILLS: Okay. You and this fellow with

the trailer, you were going t

move the trailer? ;

CHRISTOPHER:

Yeah. We were to move the

trailer down to Con---, Miss.

And we went down to rent a place

in Con--, Mississippi, on _ the

lake down there, and he was going

to pull his trailer down there.

So, we had it hooked up to his

Ranchero he had, an El Ranchero,

we had it hooked up to it, the

electric brakes hung up on it,

and tore the whole inside of the

wheel right out, the lug, I never

seen one do like that before. I

mean, it just tore the whole

thing there, and like to lost the

trailer, like to turned over. So

I came back to Memphis and uh,

went out to his Mom and Dad's,

and picked up $200 from them, and

I went by my mother's, and I'd

already been planning on going

down there anyhow, you know,

because the way that she lived,

there was a lot of conflict when

she left anyway, between me and

her mother, Pat. And Pat said

she never was going to let me see

A-120

her again when she come up here,

and all kinds of crap, you

know. So, ah, that's the day

that I left, I don't know exactly

what day it was, I imagine you

can check with ah, ah, ---- aunt,

in Atlanta, for the date, because

I remember spending the night

there, before going on.

MILLS: This -- what kind of car did you

go down in?

CHRISTOPHER:

'73 Pontiac.

MILLS: And whose was that?

CHRISTOPHER:

Ah -- I was in the process of

paying for it, ah, to Gene

Carrington.

MILLS: In other words, it was your car,

and you were buying it?

CHRISTOPHER:

Well, I didn't have the title to

it, you know.

MILLS: But there was an agreement

between --

CHRISTOPHER:

That's right, there wasS

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