# Opposition Brief — Dugger v. Miller

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1061

## Text

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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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
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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

-l10-

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.

-|]2-

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.

-14-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1679%3A2. Public record. Not legal advice.