# Petition for Writ of Certiorari — Dugger v. Christopher > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1091%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1077 ## Text 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, Ve 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. 2 ii iii PROVISIONS 2 19 51 52 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- l, 19, 45, 18, 16, 20, 46, 43, 19, 44 15 15 16 49 17 47 35 47 47 29 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, 43 48 40 45 32 28 38 36 45 24 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). oe 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 ye 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 32 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- ee 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 re 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 6 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. A. 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 10 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.]"). B. 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. D. 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). E. 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 22 "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 ye 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, Ve 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, V. 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. x 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? me QO. at that A. 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 telepho [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1091%3A1. Public record. Not legal advice.