Opposition Brief — Dugger v. Christopher

Supreme Court, u S.

FILED

JAN 7 1988

JOSEPH F. SPANIOL, UR,

CLERK

a

*

7

4

CASE NO. 87-718 —%

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

RICHARD L. DUGGER, Secretary,

Florida Department of Corrections,

Petitioner,

wu

WILLIAM D. CHRISTOPHER,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH

CIRCUIT

SRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

COUNSEL OF RECORD:

Terrence Joseph Russell, Esq

Ruden, Barnett, McClosky, Sr

Schuster & Russell, P.A.

Post Office Box 1900

Fort Lauderdale, Florida 33302

(305) 764-6660

Thomas R. Bolf, Esq.

0997G/5-1

QUESTIONS PRESENTED FOR REVIEW

(1) WHETHER THE PRESENT DECISION, IN HOLDING THE “CONFESSION”

INADMISSABLE, CONFLICTS WITH MICHIGAN-V. MOSLEY, WHERE THE

INSTANT “CONFESSION” WAS PROCURED ONLY AFTER

MR. CHRISTOPHER INVOKED HIS RIGHT TO REMAIN SILENT ON FOUR

OCCASIONS [E.G. “I GOT NOTHING ELSE TO SAY"], AND THE

POLICE CONTINUED QUESTIONING AFTER EACH INVOCATION.

(2) WHETHER A “CONFESSION” WHICH IS PRECEDED BY FOUR DISTINCT

INVOCATIONS OF THE RIGHT TO REMAIN SILENT [E.G. “I GOT

NOTHING ELSE TO SAY."], WHICH IS PRECEDED BY A “CHANGE” OF

SUBJECTS FROM THE CRIME TO WARRANTS AND EXTRADITION FOR

THE CRIME, AND WHICH IS NOT PRECEDED BY ANY CESSATION IN

QUESTIONING, CAN BE VALIDATED UNDER A_ RE-INITIATION

CONCEPT.

(3) WHETHER THE ELEVENTH CIRCUIT PERMISSIBLY RE-EXAMINED THE

“CONFESSION” TRANSCRIPT IN REVIEWING THE LOWER COURTS'

CONCLUSIONS REGARDING MR. CHRISTOPHER'S INVOCATION OF HIS

RIGHT TO REMAIN SILENT, WHERE THE TRIAL COURT NEVER MADE A

FINDING THEREON, AND THE REVIEWING COURTS EXAMINED THE

IDENTICAL INTERROGATION TRANSCRIPT.

(i)

0997G/5-2

TABLE OF CONTENTS

Questions Presented for Review

Table of

Table of

Contents

Authorities

Introduction and Summary of Argument

Statement of the Case

Argument--Reasons For Denying Writ

WHETHER THE PRESENT DECISION, IN HOLDING THE

“CONFESSION” INADMISSABLE, CONFLICTS WITH

MICHIGAN V. MOSLEY, WHERE THE INSTANT

“CONFESSION” WAS PROCURED ONLY AFTER

MR. CHRISTOPHER INVOKED HIS RIGHT TO REMAIN

SILENT ON FOUR OCCASIONS [E.G. “I GOT NOTHING

ELSE TO SAY"]}, AND THE POLICE CONTINUED

QUESTIONING AFTER EACH INVOCATION

WHETHER A “CONFESSION” WHICH IS PRECEDED BY

FOUR DISTINCT INVOCATIONS OF THE RIGHT TO

REMAIN SILENT [E.G. "! GOT NOTHING ELSE TO

SAY."], WHICH IS PRECEDED BY A “CHANGE” OF

SUBJECTS FROM THE CRIME TO WARRANTS AND

EXTRADITION FOR THE CRIME, AND WHICH IS NOT

PRECEDED BY ANY CESSATION IN QUESTIONING, CAN

BE VALIDATED UNDER A RE-INITIATION CONCEPT.

WHETHER THE ELEVENTH CIRCUIT PERMISSIBLY

RE-EXAMINED THE “CONFESSION™ TRANSCRIPT

IN REVIEWING THE LOWER COURTS’ CONCLUSION

REGARDING MR. CHRISTOPHER'S INVOCATION OF

HIS RIGHT TO REMAIN SILENT, WHERE THE TRIAL

COURT NEVER MADE A FINDING THEREON, AND THE

REVIEWING COURTS EXAMINED THE IDENTICAL

INTERROGATION TRANSCRIPT

wy

Conclusion

Certificate of Service

0997G/5-3

ees

TABLE OF AUTHORITIES

Case Page

Brewer v. Williams,

ar eae RE a kk Sa oa cal wear aye ACe a Wee Ro Rw aera 14

Brown v. Allen,

RE Me WR CROOE)D ca head eee KSA Ss he em aes ee Kee ae ees 14

Cahill v. Rushen,

Goa e rae eee foe eit. E988) ces ink Soc ck Cede kc wee wes 14

Christopher v. State, .

ae cee Bee Cee Cry. ISG?) 26k sc tes cece tees .. Sey 2e

Edwards v. Arizona,

BOT Pe OD ia bee a RA RAR Cee aS Pee eRe ii

Lamb v. Zahradnick,

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Martineay v. Perrin,

Got eae hee eee Cle CRESS ne Oe ccs CRA Se wes eee a eka 14

Michigan v. Mosley, :

Rae ee ee PE SESD occ Gu bs aR MA alee Re £2 By Dy Se Sty 28

Miller v. Fenton,

Pe Cee ee EOD 646 os AK ole ko a ATED ORE OR wee ore ee th rae &

Miranda v. Arizona,

SOS 7S. Ese CESGG) hw kkk wees 2, 6 SG CS 2G 2 2 8

Simmons v. United States,

ENA es CB RO hos, 6 ad tm, BAER oR, Rie, RR REE te Ba ae Rk, Se ms

United States v. Curcio,

eee cee Cee ee. Oey ks be cs a Gin ee ee eee ek ee eels mae ee 14

United States v. Hernandez,

are CeCe aoe Che. POTTED. nv baad s nce ac Can eenagaas 18

United States v. Olof,

Sri © ce fae SC COE. ETO” whe cama eb eke sae bio wee eoras ae 18

Other Authorities

Act of June 25, 1948 ch. 646, 62 Stat. 967,

Be ce as ee tO eo 6S Cae 8 aK VRS KS SS ows 88 SR ROS 2

Act of November 2, 1966, Pub. L. No. 89-711, §2, 80

Stat. 28GS, 28 Cis. Ce SSCSStE) CISGG) scsi cc cwasass 4, 35

Act of November 2, 1966, Pub. L. No. 89-711, §2, 80

BES. 2b ee eG ee eC ed ose Mn 6S ee ane eke KS 8m i

EES GER GA ek RAR AN OMS SWE Oe SR REN EKV SOO RRR RR 6 KRAUS l

iid)

INTRODUCTION .AND SUMMARY OF ARGUMENT

Petitioner's claimed basis for certiorari jurisdiction of

this Court is unclear. See Sup. Ct. R. 21.5. This case does

not involve an important federal question; instead, the well

established Miranda area of law is applied to a “confession”

transcript, and the Eleventh Circuit properly concluded that

questioning must cease after a suspect states “Then I got

nothing else to say.” (Twice at A-152). Miranda and its

Progeny clearly require the cessation of questioning once a

Suspect indicates the desire to remain silent. This rule does

not need clarification by this Court.

jaanenkty. the State contends (1) the instant decision

conflicts with Michigan v. Mosley, 423 U.S. 36 (1975)

(“Mosley”); (2) the reinitiation concept is applicable to right

to silence cases, but was misapplied herein; and (3) the

Eleventh Circuit did not adequately defer to the courts which

had previously considered Mr. Christopher’s invocation of his

right to silence. No conflict with other Federal court

decisions is claimed.

In brief response, (1) Mosley was not only correctly

applied, but indeed Mosley mandated the Eleventh Circuit's

reversal of the lower court; (2) the first three invocations of

the right to silence, conspicuously ignored by the State,

vitiates any reinitiation argument; further, the instant

questioning simply never ceased, and thus there could not Ode

any reinitiation. Finally, (3) the trial court never made a

finding regarding the invocation of silence, any reinitiation,

and any waiver of the right to silence; the reviewing courts

never made an independent fact finding, but instead relied upon

0971G/8

the same interrogation transcript easmined by the Eleventh

Circuit; the Eleventh Circuit gave due deference to the factual

findings below (e.4¢., the transcript of the subject

interrogation was accepted as true), but disagreed with the

lower court's application of federal constitutional law to the

interrogation sequence; the invocation of silence and

reinitiation issues presented a mixed question of law and fact

not subject to the presumptions of correctness required by Act

of June 25, 1948 ch. 646, 62 Stat. 967, 28 U.S.C. §2254 (1948);

and the Eleventh Circuit concluded that the lower courts’

findings were not reconcilable with the record.

This case presents no new or unique questions of law.

Instead, the essence of the Eleventh Circuit's decision is

Clear: Once an “individual indicates in any manner, at any time

prior to or during questioning, that he wishes to remain silent

{e.g. “I got nothing else to say.” twice at A-152], the

interrogation must cease." Miranda v. Arizona, 384 U.S. 436,

473-474 (1966) (emphasis supplied) ("Miranda"). Once the right

to remain silent has been invoked “in any manner", Mosley

requires that this right be “scrupulously honored.” Mosley,

a22° - 92S. at 104. Instead of scrupulously honoring Mr.

Christopher's numerous invocations of his right to remain

Silent, the interrogating officers replied with challenging and

accusatory statements.

The dictates of Miranda and Mosley relative to the

invocation of the right to silence have been stated by this

Court on numerous occasions. No useful purpose would be served

by revisiting this well-tread area of the law. This case does

not involve ambiguous legal principles, nor does the State so

contend. Instead, this is a case in which the interrogating

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officers simply ignored the Defendant's right to -emain silent

by continuing to question Mr. Christopher after he stated “I

got nothing else to say.” (Twice at A-152).

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STATEMENT OF THE CASE

Unfortunately, Petitioner's statement of the case is very

deficient. The dialogue in which Mr. Christopher invokes his

tight to remain silent on numerous occasions, and which forms

the very heart of the Eleventh Circuit's opinion, is omitted.

In addition, the Petitioner claims the trial court made certain

findings regarding the invocation of the right to silence; the

Petitioner has not and cannot provide citations for these

“findings”, as they do not exist. See Footnote 2, infra at 6.

As the Eleventh Circuit noted:

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 continue([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.

Christopher v. State, 824 F.2d 836, 841, n. 15 (llth Cir. 1987).

The importance of the relevant interrogation sequence

requires its full inclusion.

YOUNG: [Collier County Police Detective] That's the

real corker, I can't understand why you killed this

elderly lady, I mean I can understand you might be -

CHRISTOPHER: Well, save-

YOUNG: Now wait a minute, yea, I accused you for we

Signed a warrant against you.

CHRISTOPHER: Okay.

YOUNG: Ah-

0971G/8

CHRISTOPHER: ‘Then

got nothing else to say. If

I

you‘re accusing me of murder, then, take me down there.

YOUNG: {Challenging response]+° You were accused

when you came in here. You knew you were accused--

CHRISTOPHER: That’s right. That's right.

MILLS: {Collier County Police Detective]

[Challenging response; mention of Christopher's

daughter's involvement] You knew what you were

accused of, and I told you what the girl 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: {Challenging response} You mean its all

right, as long as we accuse you of one?

MILLS: [Double teaming with Young] 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: [Challenging reply] 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.

YOUNG: I'm asking you-

MILLS: [Double teaming; involvement of daughter] I'm

asking you to explain her actions in this thing?

CHRISTOPHER; Her actions. Her actions in what? I

don't see where she's done anything.

A-151-153 (emphasis supplied).

9971G/8

To facilitate the application of this interrogation to

the Argument section of this Brief in Opposition, and

to abbreviate the Argument section, Respondent has

taken the liberty to characterize and notate this

passage; Respondent does not imply that the actual

transcript contained the bracketed statements.

Thus, in the space of thirty lines Mr. Christopher invoked

his right to remain silent three times: “Then I got nothing

else to say.” “Okay, then, I got nothing else to say.”

“What's the need of me saying anything then.”

The claimed failure to accord due deference to lower courts

findings shares an equally faulty factual basis, as well as a

defective procedural basis. Axiomatically, if no facts have

been found, no deference is due. _The trial court herein never

made a finding tnat Mr. Christopher failed to invoke his r«ght

to remain silent, or that Mr. Christopher reinitiated the

interrogation. +‘ Thus, the “facts” found below relative to

4 The trial court concluded that ir. Christopher waived

his right to counsel, and that the confession was

voluntary. A-94. The trial court, in its “findings”,

never examined the right to silence issue in any

manner; the reinitiation concept was not addressed

either. A-93 to A-96. The trial court does state

that “Miranda has been complied with * (Id. at 96);

however, the Miranda issue under consideration was the

waiver of right to counsel, and the voluntariness of

the confession. Id. at 94, 179-181 (Motion to

Suppress Confession).

The State, in its Petition at 26, twice claims the

trial court concluded Mr. Christopher never invoked

his right to remain:silent. However, the State does

not provide a citation for this statement and, it is

respectfully submitted, cannot provide such a

citation. The State also argues that the Florida

trial court accepted the Police Officers “explanation”

of what occurred during the interrogation (Pet. at

26); again, however, the State does not cite to any

statement by the trial court supporting the conclusion

that the trial court even considered, let alone

accepted, the Police Officers’ testimony regarding the

right to silence invocation. The State then claims

the court reporter could not accurately transcribe the

interrogation, and thus the instant transcript is

inaccurate. Id. at 27-28. In this light, one must

wonder whether the State is attempting to support or

undermine the facts found below and whether the State

is attempting to clarify or cloud the issues.

0971G/8

the right to silence are contained solely in the transcript as

quoted above. The Florida Supreme Court and the Southern

District of Florida had the same interrogation transcript

before them as did the Eleventh Circuit. The Eleventh Circuit

gave all deference that was due: it accepted the transcript.

The Constitutional effect of these facts is open to free

review; no deference is due to the State court's or Federal

District Court's legal analysis based on these facts.

Procedurally, the State never argued that the lower courts’

“findings” were binding upon the Eleventh Circuit until it

moved for rehearing before the Eleventh Circuit. The District

Court order does not reference any factual presumption. This

issue arose for the first time, then, after the adverse

Eleventh Circuit decision.+”

Respondent also takes strong exception to the Petitioner's

statements that it was Mr. Christopher who killed the victims

herein.

a In addition, the subject fact finding process was

inherently defective. Act of November 2, 1966,

Pub. L. No. 89-711, §2, 80 Stat. 1105, 28 U.S.C.

§ 2254(d)(2) (1966). Mr. Christopher never testified

at the confession suppression hearing. The deficiency

in this hearing is the basis for Appeal Number

85-5220, consolidated below. Essentially, the Collier

County Judge would not rule on the admissibility at

trial of testimony given by Mr. Christopher at the

Suppression hearing. Thus, Mr. Christopher could

attempt to defeat the admissibility of his confession;

or he could invoke his Fifth Amendment right to

Silence, and not testify at the suppression hearing.

He could not do both. The requirement that Mr.

Christopher forego one constitutional right to

exercise another is impermissible. Simmons v. United

States, 390 U.S. 377 (1968).

0971G/8

WHETHER THE PRESENT DECISION, IN HOLDING THE

"CONFESSION" INADMISSIBLE, CONFLICTS WITH

MICHIGAN _V. MOSLEY, WHERE THE INSTANT

"CONFESSION" WAS PROCURED ONLY AFTER

MR. CHRISTOPHER INVOKED HIS RIGHT TO REMAIN

SILENT ON FOUR OCCASIONS [E.G. “I GOT

NOTHING ELSE TO SAY"), AND THE POLICE

CONTINUED QUESTIONING AFTER EACH INVOCATION

The State claims 4a lack of clarity in Mr. Christopher's

invocation of his right to silence. This contention is

unfathomable: stating “I got nothing else to say” is clearly an

invocation of the right to silence. As the Eleventh Circuit

noted, “{t]his comment, considered in the totality of the

circumstances, cannot be viewed 4S anything other than an

unequivocal invocation of his right to remain silent.”

Christopher, 824 F.2d at 842.

Once Mr. Christopher twice stated “I got nothing else to.

say”, Mosley and Miranda required the interrogation cease. The

State counters that after Mr. Christopher's fourth invocation

of his right to silence, the officers complied with Mosley. by

B “changing” the subject to the arrest warrant and extradition

for the charged crimes. Pet. at 21. Mr. Christopher's first

three invocations of his right to remain silent, virtually

ignored in the Petitioner's Statement of the Case, is likewise

omitted frem the State's argument. Only if the State

manipulates the plain transcript in this cause, and omits the

first three invocations, can the State's argument have any

validity.

The State's analysis permits the police to simply ignore

the first three invocations of the right to remain silent,

continue the questioning, and when the detainee finally becomes

“more cooperative”, the State can utilize the detainee’'s

statements. Under the State's scheme, even the clearest of

statements that the defendant wishes to terminate questioning

0971G/8

could simply be ignored. The Respondent fervently implores

this Court to reject this contention. Such a pattern of

questioning would eviscerate Miranda.

Indeed, the Mosley court expressly rejected the precise

interpretation of Miranda proposed by the State: i.e. that a

“momentary cessation” of questioning, or a “changing of the

subject", is sufficient to fulfill the responsibility to cut

off questioning.

Or [Miranda] could be interpreted to require only the

immediate cessation of questioning, and to permit a

resumption of interrogation after a momentary respite.

It is evident that any of these possible literal

interpretations [of Miranda; would lead to absurd and

unintended results. To permit the continuation of

custodial interrogation after a momentary cessation

would clearly frustrate the purposes of Miranda by

allowing repeated rounds of questioning to undermine

the will of the person being questioned.

Mosley, 423 U.S. at 102.

The State is in an untenable position. It acknowledges, as

it must pursuant to Miranda and Mosley, that questioning must

cease after an invocation of the right to remain silent.

Unfortunately for the State, this clear legal requirement was

ignored after Mr. Christopher's first three invocations. In an

effort to prevail herein, the State elects to don blinders as

to these initial invocations. This approach was correctly and

strongly dismissed below. Once the Eleventh Circuit perceived

that “the State's account of the interrogation . . . varies

substantially from the record” (Christopher, 824 F.2d at 841,

n. 15) and noted that the initial statements by Christopher

“cannot be viewed as anything other than an _ unequivocal

invocation of his right to remain silent” (id. at 842), the

fallacy of the State's position became clear.

0971G/8

The Eleventh Circuit's decisfon is not only supported by

Mosley, but it is mandated by Mosley. After the very first

invocation of the right to silence, the interrogation had to

cease. Instead, the interrogators continued through three

additional invocations without stopping. The State's attempts

to circumvent Miranda and Mosley must not be sanctioned by this

Court.

10

0971G/8

WHETHER A “CONFESSION" WHICH IS PRECEDED BY

FOUR DISTINCT INVOCATIONS OF THE RIGHT TO

REMAIN SILENT [E.G. “I GOT NOTHING ELSE TO

SAY.*], WHICH IS PRECEDED BY A “CHANGE” OF

SUBJECTS FROM THE CRIME TO WARRANTS AND

EXTRADITION FOR THE CRIME, AND WHICH IS NOT

PRECEDED BY ANY CESSATION IN QUESTIONING,

CAN BE VALIDATED UNDER A_ RE-INITIATION

CONCEPT

The State claims that after Mr. Christopher invoked his

right to remain silent, the police officers “changed” the

subject matter of the interrogation from the crimes to the

warrants and extradition for the crime. After that point,

contends the State, Mr. Christopher re-initiated the

conversation between he and the officers, and subsequently

confessed. Borrowing from Edwards v. Arizona, 451 U.S. 477

(1981) ("Edwards"), the State concludes the “confession"“ is

valid, even though the State violated Mr. Christopher's right

to remain silent. Pet. at 38.

Crucial to the State's conclusion is the faulty premise

that “of course” “a police officer [can] continue to converse,

permissibly, with a suspect, who, during an interrogation,

invokes his right to remain silent.” Pet. at 21. The State

does not provide a citation for its unique interpretation of

the right to silence. Respondent respectfully submits that

what is so patent to the State (e.g., police officers can

continue to converse with defendants after they have invoked

their right to remain silent) is indeed difficult to reconcile

with the unambiguous Miranda holding: once an _ individual

indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation

must cease. Miranda, 384 U.S. at 473-474. This fundamental

misapprehension of the law illustrates the speciousness of the

State's analysis in this cause.

ll

0971G/8

The reinitiation concept is not available to the State in

this action: the interrogating officers did not stop the

questioning or change the subject after Mr. Christopher said,

“Then I got nothing else to say."; the interrogating officers

did not stop the questioning or change the subject following

the second time Mr. Christopher stated, “I got nothing else to

Say."; and the interrogating officers did not stop the

questioning or change the subject following Mr. Christopher's

Statement, “Okay, then. What's the need of me saying anything

then.” Instead, the officers responded by challenging Mr.

Christopher regarding his knowledge of the charges,

double-teaming Mr. Christopher, and referencing the involvement

of Mr. Christopher's daughter in the murder scenario. See

A-152-153, quoted above.

As with the first issue, in an attempt to prevail herein,

the State is forced to don blinders to the first three

invocations of the right to remain silent by Mr. Christopher.

Only if the officers had attempted to “change” the subject

matter of the interrogation after each of the first three

invocations of the right to silence would the _ State's

“reinitiation" concept be relevant.

Finally, as adeptly recognized by the Eleventh Circuit,

“the first prong of the initiation test requires that any

previous police-initiated interrogation have ended prior to the

Suspect's alleged initiatory remark; for, just as one cannot

start an engine that is already running, a suspect cannot

‘initiate’ an on-going interrogation.” Christopher; 824 F.2d

at 845 (emphasis original). Mr. Christopher challenges the

State to identify any cessation of questioning. After the

first invocation of the right to remain silent, the questioning

0971G/8

continued; after the secord invocation of the right to remain

Silent, the questioning continued; after the third invocation

of the right to remain silent, the questioning continued; after

the fourth invocation of the right to remain silent, the

questioning continued.

Only if the first three invocations of the right to silence

are ignored, and only if the lack of any cessation in

questioning is ignored, can one _ successfully assert the

reinitiation issue. Because of the prior invocations, and the

failure of the interrogators to cease questioning, the

reinitiation issue forwarded by the State is without merit.

WHETHER THE ELEVENTH CIRCUIT PERMISSIBLY

RE-EXAMINED THE “CONFESSION” TRANSCRIPT IN

REVIEWING THE LOWER COURTS’ $ CONCLUSIONS

REGARDING MR. CHRISTOPHER'S INVOCATION OF

HIS RIGHT TO REMAIN SILENT, WHERE THE TRIAL

COURT NEVER MADE ANY FINDINGS THEREON, AND

THE REVIEWING COURTS EXAMINED THE IDENTICAL

INTERROGATION TRANSCRIPT

The State also contends that the courts which have

previously considered whether Respondent invoked his right to

remain silent concluded that he did not; therefore, continues

the argument, Act of November 2, 1966, Pub. L. No. 89-711, §2,

80 Stat. 1105, 28 U.S.C. §2254(d) (1966) prohibits the Eleventh

Circuit from concluding to the contrary. This argument is not

supported by the record herein, and is legally inaccurate.

The admissibility of confessions has been addressed by the

Court on innumerable occasions. This Court has not hesitated

to re-examine the record to determine the accuracy of previous

courts’ conclusions. Brewer v. Williams, 430 U.S. 387 (1977)

("Whether [Defendant] waived his constitutional rights was not,

of course, a question of fact, but an issue of federal law.

Id. at 397, n.4; “(T]he question of waiver was not a question

of historical fact, but one which in the words of Mr. Justice

Frankfurter, requires ‘application of constitutional principles

to the facts as found... .“ Id. at 403 (citing Brown v.

Allen, 344 F 443 (1953).)+“ This principle has

specifically been applied to waivers of the right to silence.

Lamb v. Zahradnick, 452 F.Supp. 372, 375-76 (E.D. Va. 1978).

=’ See also United States v. Curcio, 694 F.2d 14, 21-22

(2d Cir. 1982) (Waiver of “right to separate and

conflict - free representation”); Cahill v. Rushen,

678 F.2d 791, 795 (9th Cir. 1982) (Waiver of right to

counsel); Martineau v. Perrin, 601 F.2d 1196, 1198

(lst Cir. 1979) (Waiver of right to a public trial).

nc ‘nae

U971G/8

The reviewability of a confession's admissibility was

recently revisited in Miller v. Fenton, 474 U.S. 104, (1985

In Miller, the issue was whether voluntariness is an issue of

fact entitled to the Section 2254(d) presumption. The

applicability of Section 2254(d) to an inferior court’

Ww

conclusion relative to the invocation of the right to silence

was not explicitly decided. Nonetheless, the Miller court

reaffirmed that “the ultimate question whether, under the

totality of the circumstances, the challenged confession was

obtained in a manner compatible with the requzrements of the

Constitution is 4 matter for indepemdent Federal

determination.” a74 ¥Y.S. at i112. The Court=concluded that

"(flor several reasons we think that it would be inappropriate

to abandon the Court's long standing position tmat the ultimate

question of the admissibility of a confession merits treatment

as a legal inguiry requiring plenary federal review.” Id. at

iis. Further, while subsidiary factual questions relative ¢

the admissibility of confessions are entitled to the 28 U.S.C.

2254(d) presumption, “once such underlying factual issues have

been resolved, and the moment comes for determining whether

under the totality of the circumstances, the confession was

obtained in a manner consistent with the Constitution, tne

cr

J

state-court judge is not in an appreciably better position

the federal habeas court to make that determination." Id. at

i ee

The propriety of independent Federal review is particulariy

appropriate herein. The State mischaracterizes the previous

“factual” determinations. The trial court never addressed the

right to silence issue; the trial court never decided whether

Mr. Christopher invoked his right to remain silent, and if 5

whether the officers scrupulously honored that invocation, and

if so, whether Mr. Christopher re-initiated the interrogation.

A-93 to A-96 (trial court concludes no violation of right to

counsel, and that confession was voluntary and not improperly

procured). The Florida Supreme Court and Judge King at the

Southern District reviewed the exact same transcript of the

interrogation as was considered by the Eleventh Circuit. No

independent fact finding occurred during post-trial proceedings.

Due deference therefore was applied to the fact-finding

process of the lower courts. The Eleventh Circuit accepted the

interrogation transcript, and conducted an independent legal

analysis of whether the facts disclosed in the interrogation

transcript rendered the “confession" inadmissible. 725° 18

entirely appropriate, as “the state-court judge is not in an

appreciably better position than the federal habeas court to

make that determination [that the confession was obtained in a

manner consistent with the Constitution]." Miller, 474 U.S. at

Ltt.

The Petitioner's position is basically that it won at all

the other levels of judicial review, and therefore the Eleventh

Citeutt is now bound to agree with the Petitioner as well. If

the province of the various federal court of appeals were so

limited, their review would be meaningless. Instead, literally

hundreds of criminal convictions have been overturned for the

first time by a federal appellate court, notwithstanding

numerous state and federal district court reviews. The State

dislikes this reality; nonetheless, the ability of Ernesto A.

Miranda to have his case reviewed, and reversed for the first

time at the United States Supreme Court, after extensive prior

review, is at the heart of the protections afforded by the

Federal Constitution.

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CONCLUSION

The certiorari jurisdittion of this Court should not be

devoted to an area of law which has been addressed at length by

this Court, and which is well understood by lower courts and

police agencies. Even at tne time of Miranda, the holding that

_interrogation must cease when an individual indicates in any

manner that he does not wish tO be interrogated was a “holding

{which was] not an innovation in our jurisprudence but [was] an

application of principles long recognized in other settings.”

Miranda, 384 U.S. at 442. The Miranda court labored to be as

om”

’

i

Clear as possible, and, it is respectfully submitted,

Miranda court succeeded. The following holding needs 1

clarification:

Once warnings have been given, the subdsequen

procedure is clear. If the individual indicat

in any manner, at any time pricr to or dur

questioning, that he wishes to remain silent

interrogation must cease. At this point he

shown that he intends to exercise his Fi

3

30

7 te?

y

yu ow wit

ww ¢

Amendment privilege; any statement taken

the person invokes his privilege cannot be

than the product of compulsion, subtle

otherwise.

Id. at 473-74 (emphasis supplied).

The Supreme Court subsequently addressed the issue cf when

an interrogation can recommence following a valid invocation

the right to remain silent in Mosley. The court rejected tne

contention that once the right to remain silent has been

invoked, the police can never again question the detainee.

Mosley, 423 U.S. at 102. The court likewise rejected the

concept that Miranda “could be interpreted to require only tne

immediate cessation of questioning, and to permit a resumption

of interrogation after a monetary respite.” Id. The crucial

inquiry, concluded the Mosley court, “depends under Miranda on

whether his ‘right to cut off questioning’ was ‘scrupulously

honored'.” Id. at 105.

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Ee

Thus, the interrogation procedure used herein’ was

specifically addressed in Mosley, and expressly rejected

therein. The teachings of Mosley, and the application of the

tests therein, have been followed without confusion by the

various Federal appellate courts. See, e.g., United States v.

Hernandez, 574 F.2d 1362 (Sth Cir. 1978); United States v.

Olof, 527 F.2d 752 (9th Cir. 1975).

Miranda and Mosley have set the standards for interrogators’

conduct following an invocation of the right to remain silent.

Another opinion in this well-established area of the law will

not be of assistance to the police agencies, to the lower

courts, or to the dictates of this Court's crowded docket. The

bottom line herein is that the police officers’ simply ignored

three invocations of the right to silence; the interrogation

was plainly improper. The State now seeks to invoke this

Court's jurisdiction to cure the deficiencies of the

interrogating officers herein, and to sanitize a patently

objectionable interrogation. This Court's jurisdiction is too

valuable to be devoted to such a goal.

This Court should deny the Petition for Writ of Cetiorari.

If the Ccurt issues the Writ, then Respondent respectfully

requests an opportunity to fully brief the appropriate issues.

Respectfully submitted,

TERRENCE RUSSELL

TERRENCE J. RUSSELL, ESQ.

THOMAS R. BOLF, ESQ.

RUDEN, BARNETT, McCCLOSKY, SMITH,

SCHUSTER & RUSSELL, P.A.

Counsel for Respondent

NCNB Plaza, Penthouse B

110 East Broward Boulevard

Post Office Box 1900

Fort Lauderdale, Florida 33302

(305)764-6660 Miami 944-3283

18

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CERTIFICATE OF SERVICE

os I, TERRENCE JOSEPH RUSSELL, ESQ., Counsel for Respondent,

and a member of the Bar of the United States Supreme Court,

hereby certify that on the _b Ger of January, 1988, I served

one copy of the Brief in Opposition to Petition for Writ of

Certiorari on KATHERINE V. BLANCO, ESQ., Assistant Attorney

General, 1313 Tampa Street, Suite 804, Park Trammell Building.

Tampa, Florida 33062, and DONALD E. PELLECCHIA, ESQ., Assistant

State Attorney, Twentieth Judicial Circuit, Lee County Crizinal

Justice Center, P.O. Drawer 399, Fort Myers, Florida 333992. oy

a duly addressed envelope, first class postage prepaid.

TERRENCE RUSSELL

Terrence J. Russell, Esq.

Counsel for Respondent

19

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