Opposition Brief — Dugger v. Miller

L Supreme Court, U.S.

oRIGI FILED

MAY 23 1988

JOSEPH F. SPANIOL, JR

CLERK

°

4 |

Case No. 87-1781

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

RICHARD L. DUGGER, Secretary, Florida

Department of Offender Rehabilitation,

Petitioner,

Vv. “a

JON S. MILLER,

° Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

JOHN A. TUCKER, IV

~ Suite 3306

One Independent Square

Jacksonville, Florida 32202

(904) 358-3705

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

WHETHER THE LOWER COURT PROPERLY INTERPRETED COLORADO Vv.

CONNELLY, 479 U. S$. _, #4107 S. Ct. 515 (1986), AS CONTIN-

UING TO REQUIRE THAT A CRIMINAL DEFENDANT HAVE THE MENTAL

CAPACITY TO WAIVE HIS CONSTITUTIONAL RIGHTS KNOWINGLY AND

INTELLIGENTLY BEFORE ADMITTING AT TRIAL ANY ~~ INCULPATORY

STATEMENTS MADE BY THE DEFENDANT TO POLICE OFFICERS DURING A

CUSTODIAL INTERROGATION.

TASLE OF CONTENTS

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TASLE OF AUTHORITIES. 6c. cscs co Teer ee ee Ry Te TE ee ee iii

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PREP 6 re 4 6 ale ca ca ape iel io S/alaie sah ate Os G04! ea Bee Re Oe) se A ALee A ww Ree 5

The Court Of Appeals Properly Interpreted

Colorado v. Connelly As Continuing To Require

That A Criminal Defendant Have the Mental

Capacity To Waive His Constitutional Rights

Knowingly And Inteiligently Before Admitting

At Trial Any Inculpatory Statements Made By The

Defendant To Police Officers During A Custodial

EGROTCOGOCSON ca. ces css 4 RA RRA oe OR OER DEA O08 43s 5

CONCLUSION: acs 5 e'e.00.0i ie) Brin: oh sae EAN AIAIST Morac a) Dep UREN WretetaL ER a Tile, eet alae Lo

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ii

TABLE OF AUTHORITIES

CASES

PAGE NO.

Blackburn v. Aladama, 361 U.S.

DR mG 18 1 Waa ee Paar Ere gr naman arn: Graney wearer eee or ek rarer ra ar a, 9, 10, 12

Colorado v. Connelly,

479 U.S. « 207 S.Ct. SES

EUS: 9) RA Oar tur arr ee irara are Wr aed Tar ee Rig Meth ede cle/e we TES oassim

Colorado v. Spring, B.Sc

ee Res Oe CREE eaccecadanes Pa rie tT ee eee ll

Edwards v. Arizona, 451 U.S.

Pay MOY: ERA reentry Oa Ge tee ear ar a ararae are ar cere arr anor a ee ae a aE 11

Johnson v. Zerdst, 304 U.S. 458

ee ato ak aie a a ka ea a Wile ASS EE leas Ks a Ae ene Me en ee ee ki

Miller v. State, 373 So.2d 882

og SR Re ER Er yr Tey rec rr ree Te rere ee 1

Miranda v. Acizona, 384 U.S.

Ra Ce ROG Ns 4 aks RO RKs OAS RAR SNS FOR Wee Rw SC arRe aes 9; 21,32

Moran v. Turbine, 475 U.S.

BES CAMO R ss cas eescnann aan KCRG NR GRA WIN Ok WES 6k wk Saws ees ll

North Carolina v. Butler, 441

es et nba RK RE eK N RAK dR CLEKE IM CR RCRA US OM ORAS O 11

Tague v. Louisiana, 444 U.S.

SEO ack Cake See Re EN SRN AS ORS O60 6 RRR ER WK Sms ll

CONSTITUTIONS, STATUTES AND RULES

. 3S. CORRS. 5 BRAGG. REV ek cee eh KA ahaa heen see eae se ke 4

Fie. Stat. § POA. DPICE) CIPS?) 020.6005. Pree STOP TCT eC Te 10

Rule 17, Rules of the

Suprese Court oF Che UNnTted States ..i ccc we ccncwaswcuceacces iv

iii

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JURISDICTIONAL STATEMENT

Petitioner fails to state which of the specific provisions

of Rule 17, Rules of the Supreme Court of the United States, it

invokes in petitioning this Court for writ of certiorari.

Respondent submits that sudparts (a) and (b) of Rule 17 are

inapplicable and provide no basis for the petition for writ of

certiorari. Respondent further submits that where, as here, the

Petitioner requests only that the Court clarify its holding in

Colorado v. Connelly, 479 U.S. , 107 S.Ct. 515 (1985),

subpart (c) of Rule 17 is equally unavailing.

iv

STATEMENT OF THE CASE

As expressly noted by the Court of Appeals, the Respondent

Jon S. Miller tad a history of mental illness prior to his

arrest. (A-1l, iar According to his own testimony at trial,

Miller abused drugs during the 1960's, and was hospitalized or

treated for mental conditions at various times from 1960 to 1965

in Belleview Mental Hospital in New York, St. Mary's Hospital in

San Francisco, Tampa General Hospital, and in Massachusetts. Cts;

3-311 through 315, 3-345).

The record further establishes that following his arrest and

after counsel was appointed to represent him, the state trial

court appointed two psychiatrists to evaluate Miller's competency

to stand trial. (Tr. 5-889,890). These psychiatrists agreed

that Miller was incompetent to stand trial. (Tr. 5-893, 894).

Miller therefore was committed to the Florida State Hospital where

he received psychiatric care and treatment for two and one half

years before the court determined that his competency had aa

restored sufficiently to stand trial. (Tr.5-904, 911, 1095).

1

As used herein, "A-__" refers to the appendix to the

petition for writ of certiorari and the relevant page number;

"Tr. 3-311" refers to the state trial court transcript and

relevant volume and page number, e.g., here volume 3, page 311;

or

"Pet- " refers to the petition writ of certiorari and the

relevant page number; "SCT - " refers to the volume of the

state court trial transcript entitled "State Court Transcript of

Record Index" and the page number of said volume; and "R- .

refers to the record on appeal and the docket entry to ‘Said

record.

2

Despite this finding, the same court later sentenced

Miller, after trial, to death based in part upon its finding that

he was suffering from an incurable and dangerous mental illness

at the time of the murder. (R-11; see Miller v. State, 373 So.2d

882 (Fla. 1979)).

At trial, the court appointed psychiatrists testified

that Miller was insane at the time he committed the murder. (Tr.

3-385 through 3-440, 4-445 through 4-464). The police

officer who arrested Miller testified that at the time of his

arrest Miller stated that an atomic bomb was going to explode

Cir. 2-180), and that he acted irrationally, appeared to

hallucinate, laughed, talked to himself, and at times was

unresponsive to questions. (Tr. 2-180,181). The Lee County

jailor responsible for Miller on the night of his arrest

testified that Miller acted abnormal in his presence and that

Miller's strange behavior did not appear alcohol related but

rather the behavior of one who was incompetent or on drugs. (Tr.

3-277, 279, 280). The jailor further testified tnat at the time

of trial, after Miller had spent approximately two and one half

years being treated in mental institutions, Miller appeared

differen® than on the night of his arrest. (Tr. 3-281).

Witnesses who observed Miller on the afternoon of the murder

also testified that he was mumbling t9 himself, that he appeared

angry, that a wild look and change came over him when he

purchased a knife, and that they were sufficiently alarmed by his

unusual manner to call the police. (Tr. 2-30, 33 through 35).

Finally, Miller's cellmate testified that on the night of

Miller's arrest and interrogation, Miller would jump on his bed,

pull his feet under him and yell “chicken man". (Tr. 3-205).

Thus, there was substantial competent evSdence before the state

trial court that at the time of the murder and his interrogation

several hours later, Miller was insane and without the capacity

knowingly and intelligently to waive his constitutional rights.

The record below also indicates that Miller did not knowingly

and intelligently waive his constitutional rights, and

ot.

contradicts the assertion of the Petitioner that the police

officers interrogating Miller “had no indication that [he] was of

insufficient intelligence to understand the rights he was waiving

or what the consequences of his waiver would be". (Pet-16). The

record further contradicts Petitioner's assertion that the record

Clearly establishes Miller's willingness to waive his rights and

continue the interrogation. (Pet-16,17).

Miller, who identified himself at the time of the

interrogation as Robert Christopher, initially responded to the

officers' request that he waive his constitutional rights and

speak with them as follows: “I receive the vibrations, I mean I

received the -- the general attitude, and I -- and I understood

that I could remain silent, but I understood your attitude , and

I -- I decided I'd like to (inaudible)." (A-69; SCT-975 through

977). While Miller later stated that he understood his rights,

as expressly noted by the Court of Appeals most of his responses

to the officers' questions were "yeah" or “uh huh" and when the

officers again reminded Miller of his rights, he appeared

confused and disoriented. (A-10). Still later during his

interrogation, Miller refused to sign a form indicating that ‘e

understood his rights and became more passive and uncooperative.

(A-10; SCT-998 through 1000). Finally, Miller specifically

informed the officers during the interrogation "[wJell, I've been

mentally -- I'm very mentally disturbed", to which one of the

officers responded, “[{yJeah, I understand" and then changed the

subject. (A-9, n.3; SCT-1020). Thus, the record also raises

clear questions whether Miller had in fact waived his

constitutional rights intelligently and knowingly, and whether

the police officers' should have been aware of his inability to

do so.

aie

SUMMARY OF ARGUMENT

Some twenty-eight years ago, this Court in Blackburn ve

Alabama, 361 U.S. 199, 207 (1960) noted that the use of a

confession given to police officers while the defendant was

incompetent affronts our civilization's most basic sense of

justice. This Court has consistently reiterated this principle

in its subsequent decisions, most recently in Colorado ve

Connelly, 479 U. S. —__._» 107 S.Ct. 515 (1986). Petitioner

attempts herein, however, to limit this long established

Principle te instances in which the defendant, at the time of the

confession, exhibits an objective manifestation of his inability

to understand his constitutional rights, and cites the Colorado

v. Connelly decision as authority for its argument.

Respondent submits that the Court of Appeals properly

rejected Petitioner's argument and followed the clear instruction

provided by this Court's prior decisions, including Colorado v.

co welly, which champion the rights of incompetent defendants and

abhor the evidentiary use of confessions or admissions made by

defendants while incompetent. To ensure to incompetent

defendants the continued fundamental fairness and freedom from

self incrimination guaranteed by the Fourteenth Amendment to all

citizens--competent and incompetent alike--this Court should

deny the petition for writ of certiorari and allow the mandate of

the Court of Appeals to issue.

ale

ARGUMENT

The Court of Appeals ap nerd gr ge et pe

Colorado v. Connell as continuing to require

at a criminal defendant have the mental

capacity to waive his constitutional rights know-

ingly and intelligently before admitting at trial

any inculpatory statements made by the defendant

to police officers during a custodial

interrogation.

The Petitioner argues that the Court of Appeals by its

decision has established a standard for determining the

"intelligence" of a waiver which does not comport with

constitutional dictates, (Pet-7), and that "[c]Jompetency to

confess is not an issue arising under the United States

Constitution.” (Pet-9). Petitioner further argues that Colorado

vy. Connelly established that the only questions to be addressed

by courts in determining the admissibility of a confession is

whether the police obtained the confession through coercion

and/or whether the defendant exhibited an objective manifestation

of nis understanding and waiver of his constitutional rights.

Absent such objective manifestation, Petitioner argues, there

cannot be any police overreaching rendering an insane defendant's

custodial statements inadmissible at trial.

Respondent submits that contrary to Petitioner's argument,

the Court of Appeals did not establish a new standard regarding

the admissibility of confessions. Rather, the Court of Appeals

merely followed long established principles established Sy this

Court in numerous decisions which require that before a

confession elicited hy police officers during a custodial

interrogation is admitted into evidence, the state must first

estadlish that the a defendant knowingly and intelligently waived

we

his constitutional rights. Respondent further submits that a

criminal defendant's competency to confess involves an issue that

this Court has long held to be an integral part of the fundamen-

tal fairness doctrine of the Fourteenth Amendment to the United

States Constitution. Finally, Respondent submits that Colorado

v. Connelly recognized and reaffirmed these principles and

merely noted that where a criminal defendant has the

ability to know and understand his rights so as to make a knowing

waiver, the courts will not examine the defendant's motive for

exercising such rights absent overreaching conduct by the dolice.

The facts of Colorado v. Connelly are simple but important.

There, unlike the instant case, the defendant initiated the

communications with the police regarding the crime. The

defendant simply approached a police officer on the street,

stopped hin and confessed to a crime. The police officer then

informed the defendant of his constitutional rights, which the

defendant acknowledged and waived. The police then took the

defendant into custody, at which time the defendant continued to

volunteer statements regarding the crime. Based upon this

information, the state charged the defendant with the crime.

At trial, however, the defendan* alleged that his statements

to the police were involuntary. He alleged that the statements

were involuntary because“his "free will" had been overborne by

voices of God telling him that confessing the crime was the right

tning to do. Uniixe the instant case, however, the defendant did

not allege that he did not have the capacity to understand his

constitutional rights at the time he made the statements.

Indeed, all of the evidence before the Court was that the

defendant's cognitive abilities were not impaired and that he

a os

understood the rights as read by the police officer, 479 U.S. at

, 107 S.Ct. at 519, a point expressly acknowledged by the

Court of Appeals below. (A-38). The issue before this Court

in Colorado v. Connelly, therefore, was not, as in the instant

case, whether the defendant's mental capacity rendered his

statements involuntary because he was not competent to waive his

constitutional rights knowingly and intelligently; rather, the

issue was whether the defendant's motive or reason for confessing

should be considered a basis upon which to consider the

statements involuntary.

This Court understandably declined to enter the potential

judicial morass of weighing the myriad of potential reasons and

motives why defendants give confessions, with one caveat: where

police conduct is alleged to be overreaching and coercive so as

to serve possibly as the motive or reason for the defendant's

confession, then the Courts will look to the defendant's motive

for making the inculnatory statement. Thus, this Court held that

"fa]osent police conduct causally related to the confession,

there is simply no basis for concluding that any state actor has

deprived a criminal defendant of due process of law." 479 U.S.

at si, «=:107 S.Ct. «at 520 (footnote omitted). Under the facts

of Colorado v. Connelly, therefore -- where the defendant's

cognitive abilities were not impaired, he inititated all

communications with the police, and the police conduct was proper

-- this Court held that the confession was voluntary. Thus, the

specifier holding of this Court in Colorado v. Connelly is that

where a defendant has the ability to understand his rights and

actions, the Court will not examine the defendant's motive for

making the confession absent coercive activities by the police.

The Petitioner improperly argues, however, that Colorado v.

~ =

Connelly stands for the proposition that a criminal defendant's

constitutional rights cannot be violated during 4 custodial

interrogation unless there is overreaching conduct Sy the police

or the defendant objectively manifests an inability to exercise

his rights. This interpretation, as discussed above, is simoly

incorrect. In drawing this broad brush conclusion, the

Petitioner fails to acknowledge that this Court oaredicated its

holding in Colorado v. Connelly on a crucial finding adsent in

this case, a finding that the defendant was competent ard ad

the cognitive abilities to understand and exercise his

constitutional rights knowingly and intelligently. Tne Colorado

v. Connelly decision simply held that where a defendant has tnis

capacity, the Court will not attempt to evaluate the propriety of

the motive or reason which convinced the defendant to confess.

Absent coercive activities by the police, the defendant's notive

is irrefevant as long as he has the adility otnerwise 9

understand and exercise his constitutional rights.

The important distinction between this cas2 and Coloras) v.

Connelly, therefore, as noted by the Court 9° Anneals, is that

the defendant therein had the cognitive avility to understand ard

exercise his constitutional rights while tn2 Respondent in tris

action did not. Under such circumstances, the strict noldin

ua

r

Colorado v. -Connelly requires that Respondent's conviction 92

overturned as based upon an involuntary confession, and tnerefore

fundamentally unfair. Indeed, it is difficult to conceive of a

situation that is more involuntary and unfair thar allowing tne

police to elicit statements from an accused who is incompetent

and unable to understanj his constitutional rights or control Js

responses. As noted by this Court over twenty-six years ago,

"CsJurely in the present stage of our civilization

a most basic sense of justice is affronted Dy the

spectacle of incarcerating a human being upon the

basis of a statement he made while insane; and

this judgment can without difficulty be articu-

lated in terms of the unreliability of the

confession, the lack of rational choice of the

accused, or simply a strong conviction that our

system of law enforcement should not operate

so as to take advantage of a person in this

fashion."

Blackburn v. Alabama, 361 U. S. 199, 207 (1960).

The aim of tne Fourteenth Amendment's requirement of due

process is in part to prevent fundamental unfairness in the use

of evidence. Colorado v. Connelly, 479 U.S. at , 107 S.Ct.

at 4683. If ever a situation gives rise to such fundamental

unfairness, the circumstances of the instant case do. When taken

into custody and interrogated for over an hour by two policemen,

Respondent was incapable of thinking rationally and powerless to

exercise his constitutional rights and to protect himself.

Indeed, given Respondent's condition the police officers reading

to him his constitutional rights was the equivalent of not

reading such tights to a competent defendant. This Court in

Miranda v. Arizona, 384 U.S. 436 (1966) established cver twenty

years ago, however, that this latter situation violated

constitutional protections regardless of whether the police

actions were otherwise proper. To ensure this same fundamental

fairness and freedom from self incrimination to incompetent

defendants, this Court must similarly condemn the procedure

employed below.

Indeed, under such circumstances the actions of the police

officers should be considered "overreaching" in nature if such a

finding is necessary to exclude the defendant's custodial state-

ments from trial. As acknowledged by Petitioner, this Court in

Miranda v. Arizona, 384 U.S. 436 (1966) recognized "the

presumptive coercion arising from custodial interrogation.”

efn

(Pet-9). To the extent, therefore, that Colorado v. Connelly

requires police overreaching as a predicate to exclude a

defendant's confession, Respondent submits that where, as ere,

the police arrest and interrogate an incompetent defendant who is

powerless to exercise his constitutional rights and to protect

himself, the police actions must be considered overreaching in

nature and the use of such confession at trial fundamentally

unfair. Indeed, if such is not true, the Constitution

effectively affords an incompetent criminal defendant fewer

rights than a competent defendant, a truly incomprenensidle

result.

As recognized in Blackburn v. Alabama, 361 U.S. 199 (1960),

the police simply should not be allowed to take advantage of a

criminal defendant's incompetency and extract evidence from him

that he otherwise would not provide if afforded counsel oar

allowed the benefit of his constitutional rights. Indeed, if the

State through its police force is not prohibited from taxing

advantage of an incompetent person in such circumstances, th

State will be allowed to assume wholly inconsist27t opoasitions

toward its incompetent citizens. For instance, the State would

on one hand protect its incompetent citizens from others in civil

actions arising out of the incompetent erson's improvident

exercise of his civil rights, see, e.g., Fla. Stat.§ 744.331 (3)

(1986)(rendering contracts or gifts made by an incompetent person

void), while on the other hand refusing to provide similar

protection in the context of criminal actions and, in fact,

allowing the prosecution of such persons based spon statements

elicited by the State while the citizen was unable to understand

and appreciate either his constitutional rights or the nature 2°

the proceedings involved. Respondent sudmits that such action dy

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the State is both overreaching and fundamentally unfair.

Finally, Respondent submits that the cases in which this

Court has noted the requirement that a defendant “knowingly and

intelligently" waive his constitutional rights are legion. In

Miranda v. Arizona, for example, this Court acknowledged that

even if the police undertook no improper acts to coerce a

confession from a criminal defendant, a defendant's confession

made during custodial interrogation is admissible only after the

State establishes "that the defendant knowingly and

intelligently waived his privilege against self incrimination and

his right to retained or appointed counsel." 384 U. S. at 475

(emphasis added). See also Colorado v. Spring, U. S. ‘

107 S.Ct. 851 (1987); Moran v. Turbine, 475 U.S. 412 (1986);

Edwards v. Arizona, 451 U.S. 477, 482 (1981) ( "It is reasonably

clear from our cases that waivers of counsel must not only be

voluntary, but must also constitute a knowing and intelligent

relinquishment or abandonment of a known right or privilege...");

Tague v. Louisiana, 444 U.S. 469 (1980); North Carolina v.

Butler, 441 U.S. 369, 373 (1979) ("An express written or oral

statement of waiver of the right to remain silent or of the right

to counsel is usually strong proof of the validity of that

waiver, but is not inevitably either necessary or sufficient to

establish waiver. The question is not one of form, but rather

whether the defendant in fact knowingly and voluntarily waived

the rights delineated in the Miranda case.") (Emphasis added).

This Court in Johnson v. Zerbst, 304 U.S. 458, 464 (1938)

long ago established the standard for determining whether a valid

waiver existed.

"A waiver is ordinarily an intentional

relinguishment or abandonment of a known

right or privilege. The determination

whi

whether there has been an intelligent waiver

...must depend in each case, upon the

particular facts and circumstances surround-

ing that case, including the background,

experience and conduct of the accused."

Petitioner seeks, however, to strip this requirement and

standard from our nation's jurisprudence and to substitute in its

place a new standard of “objective manifestation" of mane

This “see no evil” approach to the admissibility 9f inculpatory

statements made by incompetent criminal defendants is untenable

and must be rejected. Simply stated, an incompetent defendant

held for interrogation effectively is stripped of all meaningful

rights and is helpless to defend himself from any statements te

police might elicit from him. To hold that statements made by

such a criminal defendant during custodial interrogation are

admissible at trial as long as the defendant appears “normal”

when making the statement must constitute the very same type of

procedure found abhorrent and unconstitutional by this Court in

Blackburn v. Alabama.

Indeed, the fundamental unfairness of this procedure must oe

considered no less than had the police failed to inform a

competent defendant of his constitutional rights, a procedure

again condemned by this Court in Miranda v. Arizona; in 959%

3

Despite Petitioner's desire to utilize an objective

standard to determine whether a waiver is valid -- a procedure

presumably suggested to assist police officers -- Petitioner

acknowledges that police officers are not trained to detect

whether an incompetent defendant exhibits the capacity to

understand and waive his constitutional rights, and that it is

unreasonable to require police officers to attempt to do so.

Petitioner's new standard, however, would presumably place this

duty squarely with the interrogating officer. Respondent submits

that this evaluation is more properly and effectively performed

within the court system aided by the testimony of expert

witnesses at the time the State attempts to introduce the

statement into evidence at trial.

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instances neither defendant is aware of and therefore able to

exercise his constitutional rights knowingly and intelligently.

To ensure the same fundamental fairness and freedom from self

incrimination to incompetent defendants as guaranteed to

competent defendants, this Court must reject the new standard

proposed by the Petitioner and continue to require that an

allegedly incompetent criminal defendant, whether apparently sane

or obviously incompetent, actually make a -knowing and

intelligent waiver of his constitutional rights before admitting

any custddial statements into evidence at trial.

CONCLUSION

For the foregoing reasons, Respondent sudmits that the Court

should deny the petition for writ of certiorari and allow the

mandate of the United States Court of Appeals for the Eleventh

Circuit to issue.

Respectfully submitted,

"% Fea O° Sl 2

JOHN A. TUCKER, IV

Suite 3306

One Independent Square

Jacksonville, Florida 32202

904/358-3705

Attorney for Respondent

sk Be

a

CERTIFICATE OF SERVICE

I, JOHN A. TUCKER, IV, counsel for the Respondent, certify

that my application to the Bar of the United States Supreme Court

is currently pending with the Clerk of the Court; I further

certify that on the a3t day of May, 1988, I served three copies

of the Respondent's Brief in Opposition to Petition for writ of

Certiorari on ROBERT J. KRAUSS, Assistant Attorney General, 1313

Tampa Street, Suite 804, Park Trammel Building, Tampa, Florida,

33602, by United States Mail in a duly addressed envelope with

Ce. A Feb.

JOHN A. TUCKER, IV

Attorney for Respondent

first class postage prepaid.

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