Petition for Writ of Certiorari — Fairman v. Espinoza
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Supreme Court, U.S.
Fitz DV
4 1987
CLERK
In THE
| JOSEPH F. SPANIOL, JR.
]
Supreme Court of the United States
October TERM, 1986
ee ee
Bae a ee
JAMES W. FAIRMAN, Warden,
Joliet Correctional Center,
Petitioner,
MIGUEL ESPINOZA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
NEIL F. HARTIGAN
Attorney General, State of Illinois
ROMA J. STEWART
Solicitor General, State of Illinois
MARK L. ROTERT
SALLY L. DILGART *
Assistant Attorneys General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917-2139
Counsel for Petitioner
* Counsel of Record
Printed by Authority of the State of Illinois (P.O. 33634—55—5-1-87)
i
QUESTIONS PRESENTED FOR REVIEW
I.
Should this Court’s decision in Michigan v. Jackson,
cision , 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986)
be retroactively applied to collateral review of final con-
victions?
Il.
After Michigan v. Mosley, 423 U.S. 96 (1975) and Michigan
v. Jackson, ____ US. , 106 S. Ct. 1404, 89 L. Ed. 2d
631 (1986), do the fifth amendment and the Edwards v.
Arizona, 451 U.S. 477 (1981) per se rule require suppres-
sion of a post-arrest confession to murder because respon-
dent accepted the appointment of counsel during an earlier
arraignment for an unrelated weapons charge?
il
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ..
Rees OF AUTRES ois sasncantuaxces
PUR ENED. 46 scn0eccnapesantencuetactueaeene
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PAPEETE IEE 46 cece nsnea ca etiche ta eeeeeeue
CONSTITUTIONAL PROVISIONS
SOTEAIND hn cn ccsacdxeacnscneel
STATEMENT OF THE CASE ...............
REASONS FOR GRANTING CERTIORARI:
I.
THE MICHIGAN v. JACKSON, __— U.S. __,
106 S. CT. 1404, 89 L. ED. 2D 631 (1986) DECI-
SION SHOULD NOT BE RETROACTIVELY
APPLIED ON COLLATERAL REVIEW OF
FINAL CONVICTIONS 600 ccucunsaunceaxes
Il.
ALTHOUGH RESPONDENT ACCEPTED THE
APPOINTMENT OF COUNSEL DURING AN
ARRAIGNMENT FOR AN UNRELATED
WEAPONS CHARGE, THE EDWARDS v. ARI-
ZONA, 451 U.S. 477 (1981) AND MICHIGAN v.
JACKSON, ___. U.S. ___,, 106 S.CT. 1404, 89 L.
ED. 2D 631 (1986) RULES SHOULD NOT RE-
QUIRE SUPPRESSION OF HIS SUBSEQUENT
CONFESSION TO MURDER ..............
EAMEEAINUIEN onc chncseauahacaneae ee eeeee
ill
APPENDIX
Opinion in United States ex rel. Espinoza v. Fair- ~
man, No. 85-1486 (7th Cir. February 25, 1987). 1-20
Opinion in United States ex rel. Espinoza v. Fair-
man, No. 84 C 7603 (N.D. Ill. March 12, 1985). 21-34
Opinion in People v. Espinoza, No. 82-1080 (Ill.
moe Ge. AE Si, TGS) .. «2.22 ccc esess 35-40
TABLE OF AUTHORITIES
Cases PAGE
Allen v. Hardy, 478 U.S. , 106 S. Ct. 2878, 92
ere UD og on aac ius vewncseienss 9
Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert.
gented, 400 U.S. 968 (IGS4) ... wn ccc seen,
Collins v. Kemp, 792 F.2d 987 (11th Cir. 1986) .. 7
Connecticut v. Barrett, 479 U.S. ___, 107 S. Ct.
ee ee. : | re 10, 11
Edwards v. Arizona, 451 U.S. 477 (1981) ... passim
Escobedo v. Illinois, 378 U.S. 478 (1964) ...... 7,8
Griffith v. Kentucky, __. U.S. ___, 107 S. Ct.
mee, ee Gas ee. ee GOD CIGST) ow ccc ese es 8
Hoffa v. United States, 377 U.S. 201 (1964) ... 11, 12
Johnson v. New Jersey, 384 U.S."719 (1966) .. 7
\
\
iv
Johnson v. Virginia, 221 Va. 736, 273 S.E.2d 784,
cert. denied, 454 U.S. 920 (1981) ........... 10
Johnson v. Zerbst, 304 U.S. 458 (1938) ....... 13
Jordan v. Watkins, 681 F.2d 1067 (5th Cir. 1982) . 8
Lindsey v. State, 485 N.E.2d 102 (Ind. Sup. Ct.
Pe Berry erry Per ree err re ere T 13
Linkletter v. Walker, 381 U.S. 618 (1965) ..... 7
Maine v. Moulton, 474 U.S. 159 (1985) ....... 12
Michigan v. Jackson, __. U.S. ___, 106 S. Ct.
1404, 80 L. Ed: Sd GBl (1968) .. 2... ccc secs. passim
Michigan v. Mosley, 423 U.S. 96 (1975) ...... passim
Miranda v. Arizona, 384 U.S. 4386 (1966) .... passim
Oregon v. Bradshaw, 462 U.S. 1039 (19838) .... 12
Shea v. Louisiana, 470 U.S. 51 (1985) ........ 8
Solem v. Stumes, 465 U.S. 638 (1984) ......... 8,11
State v. Buckles, 636 S.W.2d 914 (Mo. Sup. Ct.
EE rer eer aie eae ted area eran rar gmaner 12
Stovall v. Denno, 388 U.S. 293 (1967) ......... 8
Stumes v. Solem, 752 F.2d 317 (8th Cir. 1985)... 11, 12
United States v. Gouveia, 467 U.S. 180 (1984) ... 9
United States v. Udey, 748 F.2d 1281 (8th Cir.
EN seid biis WR ae CLE WERE tar wR a 12
Constitutional Provisions and Statutes
U.S. Constitution, Amendment V ............. 2,3
U.S. Constitution, Amendment XIV ...........
rs OO 6k Ok baba k Pek NAA O 0 AO eee
SR RE aa been bas hos cane ae Owen Sen
_
In THE
Supreme Court of the United States
Octoser T'reRM, 1986
JAMES W. FAIRMAN, Warden,
Joliet Correctional Center,
Petitioner,
Vv.
MIGUEL ESPINOZA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PRAYER
To the Chief Justice and Associate Justices
of the Supreme Court of the United States:
Petitioner James W. Fairman, Warden of the Joliet, IIli-
nois Correctional Center, respectfully prays that a writ
of certiorari issue to review the judgment of the United
States Court of Appeals for the Seventh Circuit. With
respect to the first question presented for review, peti-
tioner also seeks a writ of certiorari to summarily reverse
the judgment entered below.
pe
OPINIONS BELOW
A copy of the unreported opinion on direct appeal from
conviction in People v. Espinoza, No. 82-1080 (Ill. App.
Ct. August 31, 1983) has been included within the appendix
at pages 35-40. A copy of the unreported memorandum
opinion granting habeas corpus relief in United States ex
rel. Espinoza v. Fairman, No. 84 C 7603 (N.D. Ill. March
12, 1985) may be found at appendix pages 21-34. Certiorari
is sought to review the decision of the United States
Court of Appeals in United States ex rel. Espinoza v.
Fairman, No. 85-1486 (7th Cir. February 25, 1987), and
a copy of the slip opinion has been appended at appendix
pages 1-20.
JURISDICTION
On February 25, 1987, the United States Court of Ap-
peals for the Seventh Circuit affirmed a district court de-
cision to issue a writ of habeas corpus under 28 U.S.C.
§ 2254. Jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
Amendment V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or in-
dictment of a Grand Jury, except in cases arising in the
wilds
land or naval forces, or in the Militia, when in actual ser-
vice in time of War or public danger; nor shall any per-
son 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 witness against himself, nor be de-
prived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just cornpensation.
Amendment XIV
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
STATEMENT OF THE CASE
A. The Offenses
At approximately 2:00 a.m. on August 24, 1980, a twenty-
five year old school teacher named Frank Foys, Jr. es-
corted his girlfriend home and walked to a bus stop in
Chicago, Illinois. Respondent Miguel Espinoza and two
other men confronted Foys. Espinoza was armed with a
.25 caliber semi-automatic pistol, and he released a bullet
into the pistol chamber as the men approached Foys.
After the men forced Foys against a wall, Espinoza fired
a single shot which fatally wounded the victim. Espinoza
then removed a watch and wallet from Foys. When they
discovered the body, police officers noticed that the
pockets of Foys’ clothing had been turned inside out.
an
B. The Arrest And Confession :
On August 29 of that year, Chicago police officers were
summoned to investigate a report of a man with a gun
inside a tavern. After they discovered a gun during a pat-
down frisk of respondent, Espinoza was arrested, charged,
and taken into custody for the misdemeanor offense of
unauthorized use of weapons.
At some point between August 29 and September 3, an
assistant public defender was appointed to represent Espi-
noza. Respondent and his lawyer appeared at arraignment
for the weapons charge. While Espinoza remained in cus-
tody, ballistics tests performed on the confiscated gun sug-
gested that the weapon was used to commit the Foys
murder.
On September 3, an assistant state’s attorney initiated
custodial interrogation and questioned Espinoza about the
Foys murder. The state’s attorney did not know that
counsel had been appointed for the weapons charge, and
he did not question Espinoza about that crime. The state’s
attorney twice cautioned respondent about his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). Espinoza
declined the services of a lawyer, agreed to answer ques-
tions, and gave oral and written confessions to the Foys
murder.
The next morning the state’s attorney filed a murder
charge, and the weapons case was later dismissed. After
his suppression motion incorporating fifth and sixth amend-
ment claims was denied, Espinoza proceeded to a bench
trial where his confession was received as the State’s prin-
cipal evidence. Espinoza was convicted for the crimes of
murder and armed robbery of Frank Foys, Jr.
nollie
C. Direct Appeal From Conviction
The Illinois appellate court rejected respondent’s fifth
and sixth amendment claims because respondent had not
requested the services of an attorney during questioning
about an uncharged murder. Leave to appeal to the IIli-
nois Supreme Court was subsequently denied.
D. Federal Habeas Corpus Proceedings
Respondent then sought habeas corpus relief, and the
district court judge held for Espinoza on several grounds.
Applying Edwards v. Arizona, 451 U.S. 477 (1981), the
judge first found a fifth amendment violation. Notwith-
standing respondent’s Miranda waivers, a request for
counsel during the September 3 interrogation was implicit
in Espinoza’s acceptance of counsel at the earlier arraign-
ment, the judge reasoned. This request for counsel dur-
ing a felony murder investigation was found even though
counsel had been appointed in connection with a misde-
meanor weapons offense. Although Espinoza had conferred
with counsel at arraignment, the judge also construed
Edwards to require the actual presence of an attorney
during questioning.
Turning to the sixth amendment claim, the court de-
cided that the murder charge was “procured pursuant to”
the weapons arrest. The court then ruled in Espinoza’s
favor because respondent was questioned about an un-
charged murder after judicial proceedings for the weapons
charge had begun. In an alternative holding, the judge
decided that the sixth amendment did not permit investi-
gation into misconduct committed before the weapons
charge. Finally, the judge rejected the State’s argument
that a valid sixth amendment waiver can be found in
voluntary responses to questions after Miranda rights
admonishment.
— a
On appeal, the circuit court rejected all but one of
Espinoza’s arguments. That court agreed that respondent
had no sixth amendment right to counsel in the absence
of a formal murder charge. The court also agreed that
Espinoza’s murder and weapons offenses were unrelated
erimes. Applying Edwards and the recent decision in
Michigan v. Jackson, ___. U.S. ___,, 106 S. Ct. 1404, 89
L. Ed. 2d 631 (1986), however, the Court of Appeals held
that Espinoza asserted his fifth amendment right when
he accepted counsel at arraignment. In that court’s view,
a request made at arraignment assures the right to coun-
sel during subsequent investigation into any crime what-
soever as long as the suspect remains in continuous police
custody.!
Petitioner conceded exhaustion of state remedies, and
the decision below does not rest on any alternative state
ground.
1 The district court had also questioned Espinoza’s ability to give
a knowing and intelligent waiver. After reviewing the record, the
Seventh Circuit noted respondent’s argument but was unwilling
to conclude that the waiver was involuntary in the traditional
sense.
i 7
REASONS FOR GRANTING CERTIORARI
I.
THE MICHIGAN v. JACKSON, U.S. ___, 106 S. CT.
1404, 89 L. ED. 2D 631 (1986) DECISION SHOULD NOT BE
RETROACTIVELY APPLIED ON COLLATERAL REVIEW
OF FINAL CONVICTIONS.
Espinoza sought habeas corpus relief to vacate his state
court convictions for murder and armed robbery. After
briefing had been completed in the Court of Appeals, this
Court rendered its decision in Michigan v. Jackson, ___
U.S. ___, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986). Be-
cause the lower court improperly applied Jackson to this
case, petitioner seeks both a writ of certiorari and sum-
mary reversal. The Jackson decision should not have been
applied on collateral review of these final convictions.
This Court did not address the retroactivity issue in the
Jackson opinion itself. Retroactivity has now become a
vital concern for the lower courts, however. See, e.g., Collins
v. Kemp, 792 F.2d 987, 988-89 (11th Cir. 1986) (granting
a stay of execution and expressing uncertainty in this
area).
Reviewing a sixth amendment claim in Jackson, this
Court applied Edwards v. Arizona, 451 U.S. 477 (1981)
by analogy to fashion a new rule governing confessions
given after counsel requests have been made at arraign-
ment. Courts are not constitutionally compelled to give
a decision retroactive effect, Linkletter v. Walker, 381
U.S. 618, 629 (1965), and this Court has generally ordered
prospective application of new rules for custodial interro-
gations. In Johnson v. New Jersey, 384 U.S. 719 (1966),
for example, this Court withheld retroactive effect for the
Miranda v. Arizona, 384 U.S. 436 (1966) and Escobedo
a
v. Illinois, 378 U.S. 478 (1964) decisions. In Solem v.
Stumes, 465 U.S. 638 (1984) and Shea v. Louisiana, 470
U.S. 51 (1985), in turn, application of the Edwards rule
was limited to cases pending on direct appeal.
By applying the Stumes, Linkletter and Stovall v. Denno,
388 U.S. 293, 297 (1967) criteria, this Court should now
deny retroactivity for the Jackson prophylactic rule as
well. The need for retroactivity is lessened here because
defendants remain free to litigate the voluntariness of
their confessions by traditional means. Stwmes, 465 U.S.
at 644. Equally important, this Court has already noted
the disruptive effect of retroactivity upon the criminal justice
system. Id. at 650. Moreover the Jackson and Edwards
rules do not enhance the accuracy of the trial process.
Id. at 643-44. Finally, the prosecutor in this case could
not have been expected to anticipate the Jackson deci-
sion. By fashioning a “bright-line rule’, Jackson may have
resolved earlier confusion within the lower courts. 106
S. Ct. at 1410, 89 L. Ed. 2d at 641. These courts had not
anticipated the Jackson result, however. See, e.g., Jordan
v. Watkins, 681 F.2d 1067, 1072-74 (5th Cir. 1982) and
Collins v. Francis, 728 F.2d 1322, 1332-34 (11th Cir.), cert.
denied, 469 U.S. 963 (1984).
“At a minimum, nonretroactivity means that a decision
is not to be applied in collateral review of final convic-
tions.”” Stumes, 465 U.S. at 650.2 During habeas corpus
review, the justification for finality of judgments is strong-
est, and the costs outweigh the benefits of retroactivity.
Stumes, 465 U.S. at 653-54 (Powell, J., concurring). Cf.
—s
2 But see Griffith v. Kentucky, __.. U.S. ___, 107 S. Ct. 708,
716, 93 L. Ed. 2d 649, 662 (1987) (Powell, J., concurring) (the retro-
activity standard for “‘clear break’ cases on collateral review may
remain an open question).
=
Allen v. Hardy, 478 U.S. ___, 106 S. Ct. 2878, 92 L. Ed.
2d 199 (1986) (also refusing retroactive application for col-
lateral review).
In this case, just as in Stwmes and in Allen, a habeas
appeal was pending at the time of the new decision. Upon
the authority of those decisions, petitioner respectfully
submits that retroactivity was improper and that sum-
mary reversal is appropriate.
II.
ALTHOUGH RESPONDENT ACCEPTED THE APPOINT-
MENT OF COUNSEL DURING AN ARRAIGNMENT FOR
AN UNRELATED WEAPONS CHARGE, THE EDWARDS
v. ARIZONA, 451 U.S. 477 (1981) AND MICHIGAN v. JACK-
SON, U.S. ___, 106 S. CT. 1404, 89 L. ED. 2D 631
(1986) RULES SHOULD NOT REQUIRE SUPPRESSION
OF HIS SUBSEQUENT CONFESSION TO MURDER.
During this custodial interrogation conducted by an
assistant state’s attorney, Espinoza clearly had a right to
confer with counsel to protect his fifth amendment privi-
lege against self-incrimination.* Miranda v. Arizona, 384
U.S. 436 (1966). If Espinoza had asserted that right to
counsel during questioning, further police-initiated interro-
gation would have been forbidden until Espinoza had seen
a lawyer. Edwards v. Arizona, 451 U.S. 477 (1981).
Because Espinoza accepted the appointment of counsel at
‘arraignment, the Edwards per se rule may apply in this
case. Michigan v. Jackson, US. , 106 S. Ct.
1404, 89 L. Ed. 2d 631 (1986).
3 The lower court apparently perceived an independent fifth
amendment right to counsel requiring protection by a per se rule.
Compare United States v. Gouveia, 467 U.S. 180, 188, n. 5 (1984).
on Sins
In Jackson, this Court used Edwards by analogy to sup-
ress a confession on sixth amendment grounds. The ap-
lication of the Jackson rule to fifth amendment claims
; presently unclear, however. This Court expressed “‘no
omment” on Jackson’s fifth amendment claim rejected
y the state courts. Jd. at 1408, n. 4 and at 639, n. 4. De-
arting from the decisions of the other federal courts (slip
p. at 12-13, n.5 and cases cited therein), the Court of
.ppeals broadly interpreted Espinoza’s sixth amendment
equest* during arraignment to find a fifth amendment
ssertion then as well. (slip op. at 5-6 and 11-12). Unlike
ackson’s sixth amendment assertion at arraignment, Es-
inoza’s fifth amendment request before interrogation may
ave been premature. Jd. at 1412, n.2 and at 644, n.2
lissenting opinion expressing the view that the fifth
mendment privilege must be asserted during interroga-
ion). But see Johnson v. Virginia, 221 Va. 736, 273 S.E.
d 784, cert. denied, 454 U.S. 920 (1981) (Marshall, J., dis-
enting).
Notwithstanding Jackson’s possible application to fifth
mendment claims generally, there are compelling reasons
0 reject a per se rule in this particular case. At the time
f his arraignment, neither the government nor Espinoza
new that he would be interrogated about the murder.
slip op. at 3). Although this Court has broadly construed
he legal basis for a counsel request, Jackson, 106 S. Ct.
t 1409, n. 7, 89 L. Ed. 2d at 641, n. 7, this Court may not
onclude that Espinoza sought the services of a lawyer
or an interrogation he did not anticipate. Cf Connecticut
. Barrett, 479 US. , 107 S. Ct. 828, 93 L. Ed. 2d 920
Representation by counsel was accepted, rather than requested,
y respondent Espinoza. The lower court decided that this distinc-
ion is “not relevant’. (slip op. at 12, n. 4).
~)
(1987) (where defendant’s willingness to speak was found
despite his limited request for counsel). The suspect exer-
cises control over the course of the interrogation, Jd. at
831 and at 927, and the suspect who has previously sought
counsel for one offense may change his mind and willing-
ly speak about another. Cf’ Edwards, 451 U.S. at 490
(dissenting opinion).
As a matter of fifth amendment law, the Edwards and
Jackson decisions should not apply when government offi-
cials seek to question a suspect about a second and un-
related crime. The lower court found that “the weapons
offense and the murder were, in every constitutionally
significant aspect, separate crimes’’. (slip op. at 8, n. 1).
In the proceedings reviewed in Michigan v. Mosley, 423
U.S. 96 (1975), Mosley invoked his right to silence® con-
cerning two robberies before he confessed to murder. The
confession to “a crime different in nature and in time and
place of occurrence” was held to be admissible. Jd. at 105.
The Miranda rule did not create a proscription of in-
definite duration “upon any further questioning by any
police officer on any subject’. Jd. at 102-104. Here, as in
Mosley, the official’s questioning ‘about an unrelated
homicide was quite consistent with a reasonable interpre-
tation” of his earlier assertion. Jd. at 105. See also Hoffa
5 Mosley asserted his fifth amendment right to silence but, accord-
ing to the lower court, waivers of the right to counsel are to be
treated in the same manner as waivers of the privilege. (slip op.
at 11, n. 3). See also Stumes, 465 U.S. at 648: “while Mosley did
distinguish the right to counsel from the right to silence . . . much
of the logic and language of the opinion could be applied to the
invocation of the former” (citations deleted) and Stwmes v. Solem,
752 F.2d 317, 321, n. 4 (8th Cir. 1985) (following this direction on
remand). See generally Mosley, 423 U.S. at 102, as cited with ap-
proval in Edwards, 451 U.S. at 491, n. 1 (dissenting opinion) (also
minimizing the significance of the distinction).
eS
v. United States, 377 U.S. 201, 207 (1964) (where continued
investigation into other suspected criminal activities of the
indicted defendant was “entirely proper”); Maine v. Moul-
ton, 474 U.S. 159 (1985) (where all nine members of this
Court agreed that post-indictment statements concerning
other crimes were “of course” admissible at trials for
those offenses); State v. Buckles, 636 S.W.2d 914 (Mo. Sup.
Ct. 1982) (murder confession deemed admissible although
the suspect asserted his fifth amendment counsel right
for a robbery); and United States v. Udey, 748 F.2d 1231,
1241, n. 5 (8th Cir. 1985) (observing that “no definite state-
ment” has been made here).
The “scrupulous observance” of a suspect’s asserted con-
_stitutional rights provides the appropriate means to recon-
cile the Mosley, Edwards, and Jackson decisions. Stumes,
752 F.2d at 321 (applying pre-Edwards law on remand and
deciding that officers had “scrupulously honored”’ a coun-
sel request). Per se rules have been adopted to eliminate
the possibility that police officers will “badger” a suspect
and seek to overcome his will. Oregon v. Bradshaw, 462
U.S. 1039, 1044 (1983) (plurality opinion). When no attempt
has been made to circumvent the suspect’s asserted right,
however, subsequent interrogation should be permitted.
Espinoza was given fresh Miranda warnings after a sig-
nificant passage of time, and respondent has agreed that
the procedure employed comported with the Miranda de-
cision. The interrogation was then restricted to a crime
which was not the subject of his earlier assertion. Un-
like defendants Jackson and Bladel, respondent knew he
was represented by counsel. Indeed, Espinoza had seen
his lawyer before this interrogation began. Unlike defen-
dant Edwards, respondent was never told he was obli-
gated to answer questions. Espinoza never halted the in-
terrogation, never sought the services of the lawyer that
= ae
he knew, and never indicated any unwillingness to talk
to the state’s attorney. Espinoza’s decision to talk about
the Foys murder was a knowing and intelligent decision
under Johnson v. Zerbst, 304 U.S. 458 (1938).
By applying the Edwards and Jackson per se rules in
a mechanical fashion, the lower court created an unprece-
dented immunity for offenders fortuitously charged with
unrelated crimes.® Police officers may wish to question
an arrestee about other crimes, however, in a practice
which serves to benefit the community and possibly the
suspect himself. The Miranda right to counsel should not
be transformed into an “irrational obstacle to legitimate
police investigative activity”. Mosley, 423 U.S. at 102, as
cited with approval in Edwards, 451 U.S. at 491, n. 1. Just
as the sixth amendment right to counsel is limited to the
specific crime for which the accused has been charged (slip
op. at 16), the Edwards and Jackson rules should be
limited to the specific crime for which the services of
counsel have been requested.
6 The lower court ruling is limited to interrogations conducted
while the suspect remains in continuous police custody. Accord,
Lindsey v. State, 485 N.E.2d 102, 105 (Ind. en. Ct. 1985) (Edwards
does not control if defendant has been re-arrested). Although this
restriction would relieve the serious problem presented by serial
offenses in different states, this restriction may be inappropriate.
If the stationhouse environment is inherently coercive, then pre-
sumably the arraignment request bars any police-initiated custodial
interrogation for which the “medium” of counsel has been re-
quested.
alia
CONCLUSION
For these reasons, petitioner respectfully seeks a writ
of certiorari to review the decision of the United States
Court of Appeals for the Seventh Circuit.
Respectfully submitted,
NEIL F. HARTIGAN
Attorney General, State of Illinois
ROMA J. STEWART
Solicitor General, State of Illinois
MARK L. ROTERT
SALLY L. DILGART *
Assistant Attorneys General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 917-2139
Counsel for Petitioner
May 1, 1987 * Counsel of Record
APPENDIX
App. 1
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 85-1486
UNITED STATES OF AMERICA ex rel.
MIGUEL A. ESPINOZA,
Petitioner-Appellee,
J.W. FAIRMAN, Warden,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 84 C 7603—John F. Grady, Chief Judge.
ARGUED APRIL 8, 1986—DecipeD FesBRuARY 25, 1987
Before CorFFEY, FLAUM, Circuit Judges, and ESCHBACH,
Senior Circuit Judge.
FLAuUM, Circuit Judge. The petitioner, Miguel Espinoza,
was arrested on a weapons charge. At his arraignment
on that charge, he was represented by counsel. Subse-
quently, while Espinoza was still in custody, the police
interrogated him concerning a murder. Espinoza, who was
not represented by counsel at that interrogation, confessed
to the murder. At his trial on the murder charge, Espinoza
moved to have his confession suppressed. The state trial
court denied his motion and subsequently convicted him
of murder.
App. 2
After exhausting his state remedies, Espinoza petitioned
for a writ of habeas corpus. The district court granted
the petition, holding that Espinoza had both a Fifth
Amendment and a Sixth Amendment right to have coun-
sel at the interrogation, and that he had not knowingly
and voluntarily waived those rights. Because the state had
not yet begun to prosecute Espinoza on the murder charge
at the time he confessed, we conclude that Espinoza had
no Sixth Amendment right to counsel at the police inter-
rogation concerning that crime. However, because Espinoza
invoked his Fifth Amendment right to counsel at his ar-
raignment on the weapons charge, we conclude that the
state was barred from initiating an interrogation of Espinoza
without counsel concerning any crime for as long as he
remained in continuous police custody. We therefore af-
firm the decision of the district court.
I.
On August 29, 1980, Chicago police officers arrested the
petitioner, Miguel Espinoza, on a charge of unauthorized
use of a weapon. The police placed Espinoza in the Cook
County Jail to await trial. At some point between August
29 and September 3, a public defender, who was appointed
to represent Espinoza, appeared on his behalf at his ar-
raignment on the weapons charge.
While Espinoza remained in custody, the police con-
ducted tests on the gun taken from him at the time of
his arrest. Based on these tests, the police concluded that
Espinoza’s gun had been used to kill Frank Foy, a twenty-
five year old Chicago teacher who had been shot to death
on August 24, 1980.
On September 3, 1980, Assistant State’s Attorney Brian
Collins interviewed Espinoza regarding the murder.
Although Collins was aware that the police had taken
Espinoza into custody on the weapons charge, he did not
ask Espinoza whether he had a lawyer. Collins did, how-
ever, give Espinoza his Miranda warnings, which stated
that if Espinoza wanted a lawyer present he could have
App. 3
one. Collins then asked Espinoza if he wanted to waive
his rights. Espinoza agreed to do so—first orally and then,
during the interrogation, by signing a waiver form. Al-
though the record is somewhat unclear, it appears that,
at the time Collins first asked Espinoza to waive his
rights, Espinoza did not know that he was going to be
interviewed about the Foy murder. :
Collins conducted the interrogation in English. However,
he did not ask Espinoza, a native Mexican, if he under-
stood English or if he wanted to have an interpreter pres-
ent. Although Espinoza answered in English, his answers
consisted primarily of “yes” or “no” responses. After only
fifteen to twenty minutes of questioning, Espinoza con-
fessed that he and two of his friends had murdered Frank
Foy.
The next morning, based on his confession, the state
filed a complaint against Espinoza, charging him with mur-
der. The state later dropped the weapons charge.
Espinoza did not stand trial for a year and a half. The
trial judge initially ordered Espinoza held in jail pending
a psychiatric evaluation of his competence to stand trial.
While in jail, Espinoza attempted to commit suicide. He
was subsequently placed in the Chester Mental Health
Center. Five different mental health professionals exam-
ined Espinoza during this year and a half period. Four of
the five believed Espinoza mentally unfit to stand trial.
On March 3, 1982, the court held a hearing to deter-
mine whether Espinoza was capable of standing trial. One
psychiatrist testified that, based on an electroenceph-
alogram which showed no abnormalities, he believed that
Espinoza was pretending to be mentally ill. Another psy-
chiatrist testified that Espinoza was unfit for trial because
he was suffering from a depressive neurosis that pre-
vented him from cooperating with his attorney. Espinoza
mumbled unintelligibly throughout this hearing. At the
conclusion of the hearing, the state trial judge found
Espinoza fit for trial and able to cooperate with his at-
torney.
App. 4
Espinoza then moved to suppress his confession. The
motion asserted that Espinoza had a Fifth Amendment
and a Sixth Amendment right to counsel at the interroga-
tion and that he had not waived these rights knowingly
or voluntarily. Specifically, Espinoza claimed that he had
not comprehended the Miranda warnings; that his psy-
chological disabilities had prevented him from being able
to voluntarily relinquish his rights; and that the police
had coerced him to confess by placing him in a chair, put-
ting wires on his head, and simulating an electrocution.
The trial judge denied the motion, finding that Espinoza
had understood what occurred at the interrogation and
had confessed voluntarily.
The ensuing trial lasted less than one hour. Espinoza’s
confession was the state’s principal evidence. The confes-
sion was buttressed by the tests on the gun that the po-
lice found in Espinoza’s possession. The state introduced
no additional testimony. At the conclusion of the trial, the
court found Espinoza guilty.
The trial judge denied the state’s request to sentence
Espinoza to death because Espinoza’s possible psychologi-
cal problems, and his use of alcohol and narcotics, were
mitigating circumstances. Instead, the court imposed the
maximum sentence of forty years.
After exhausting his state remedies, Espinoza filed a
petition for a writ of habeas corpus, under 28 U.S.C.
§ 2254, in federal district court. The court granted
Espinoza’s petition, holding that he had a Fifth Amend-
ment and a Sixth Amendment right to be assisted by
counsel at the police interrogation. The court concluded
that Espinoza’s very limited education, his extensive
alcohol and drug use, his preference for speaking Spanish,
the short period of time between his being informed that
he was a suspect and his confession, and his mental con-
dition at the time of the interrogation, indicated that he
had not knowingly and voluntarily waived his right to
counsel before he was interrogated by the assistant state’s
attorney. The court therefore concluded that Espinoza’s
App. 5
confession should have been suppressed. We affirm the
decision of the district court but on substantially different
grounds.
II.
The Fifth Amendment and the Sixth Amendment each
provide a separate right to counsel in a criminal case. The
Fifth Amendment guarantees that “(nJo person . . . shall
be compelled in any criminal case to be a witness against
himself.” U.S. Const. Amend. V. Although the amendment
itself does not speak of the right to counsel, the Supreme
Court held in Miranda v. Arizona, 384 U.S. 436 (1966),
that it provides “an individual held for interrogation . . .
the right to consult with a lawyer and to have the lawyer
with him during interrogation,” id. at 471. In addition,
the Sixth Amendment guarantee that “(ijn all criminal
prosecutions, the accused shall enjoy the right .. . to
have the Assistance of Counsel for his defence,” U.S.
Const. Amend. VI, expressly provides a right to counsel.
In the ordinary criminal prosecution, the defendant in-
vokes his or her Fifth Amendment and Sixth Amendment
rights to counsel sequentially. The defendant first invokes
the Fifth Amendment right to counsel by requesting coun-
sel, either at the time he or she is taken into custody
or at a later interrogation conducted while the individual
is still in custody. Subsequently, once the state has com-
mitted itself to prosecute, the defendant invokes his or
her Sixth Amendment right to be represented by counsel
at a procedure, such as an arraignment, that constitutes
a “critical stage of the prosecution,” United States v.
Wade, 388 U.S. 218, 237 (1967).
In this case, the defendant did not invoke his rights to
counsel in the usual sequence. From the time Espinoza
was taken into custody on the weapons charge, until his
arraignment on that charge six days later, he did not in-
voke his Fifth Amendment right to counsel. Espinoza’s
first and only invocation of his right to counsel occurred
at his arraignment on the weapons charge, where he clear-
App. 6
ly invoked his Sixth Amendment right to counsel in
that prosecution by accepting representation. See Brewer
v. Williams, 430 U.S. 387, 404 (1977). After invoking
that right, and while still in police custody, Espinoza
became a suspect in a murder case. At that point, the
police initiated an interrogation of Espinoza concerning
the murder.
This case requires us to resolve four questions. We must
first determine whether Espinoza had either a Fifth
Amendment or a Sixth Amendment right to counsel at
the murder interrogation. If he did, we must next estab-
lish whether his actions at his arraignment on the
weapons charge constituted an invocation of either of
those rights. If Espinoza invoked either right, we must
resolve whether that invocation remained in effect at the
subsequent interrogation. If it did, then we must deter-
mine whether Espinoza waived his right to counsel at the
interrogation. If we find for Espinoza on each question,
then we must conclude that the state trial court should
have suppressed Espinoza’s confession, and we must af-
firm the district court’s decision to grant his petition.
III.
The district court concluded that Espinoza had a Sixth
Amendment right to counsel at the interrogation regarding
the murder charge. We do not agree. The Sixth Amend-
ment right to counsel attaches only when the state begins
to prosecute an individual. Because the state had not
begun to prosecute Espinoza for the Foy murder at the
time he confessed, we conclude that he had no Sixth
Amendment right to counsel in this case. We need not,
therefore, reach the questions of whether Espinoza’s ac-
tions at his arraignment on the weapons charge consti-
tuted an invocation of his Sixth Amendment right in the
murder case, the duration of any such invocation, or
whether he waived his Sixth Amendment right at the
interrogation.
App. 7
We recently considered whether an individual in police
custody who has a Sixth Amendment right to counsel as
the accused in one criminal prosecution has a Sixth
Amendment right to counsel in a second case in which
he or she is a suspect. In United States ex rel. Hall v.
Lane, 804 F.2d 79 (7th Cir. 1986), the petitioner, Anthony
Hall, was arrested and arraigned on charges of attempted
robbery and unlawful restraint. While Hall was in jail
awaiting trial on these charges, he was required to partici-
pate, without counsel, in a line-up as a suspect in an unre-
lated armed robbery and attempted rape case. Hall was
convicted on the latter charges at a trial in which the eye-
witness identification made at the line-up was a key piece
of evidence. He later petitioned for a writ of habeas cor-
pus, claiming that the line-up evidence was inadmissible
because he had been denied his Sixth Amendment right
to counsel.
We rejected Hall’s claim that he had a Sixth Amend-
ment right to counsel. We explained that the Sixth
Amendment “right to counsel attaches only when a defen-
dant proves that, at the time of the procedure in ques-
tion, the government had crossed the constitutionally
significant divide from fact-finder to adversary.” Id. at
82 (emphasis added). We further explained that “the fact
that [the petitioner] had already been indicted, and was
in jail awaiting trial for another charge,” id. at 83, did
not itself demonstrate that the state had begun the pros-
ecution in the second case. We then considered the speci-
fic facts of the case. We found that “[a]t the time of the
line-up, Anthony Hall was still a genuine suspect. The
state was seeking to determine whether to prosecute him;
it had not yet begun to do so.” Jd. As a result, we con-
cluded that, at the time of the line-up, Hall had no Sixth
Amendment right to counsel and that the trial court did
not err in admitting evidence from the line-up at his trial.
Id.
Our decision in Hall is controlling. At the time of the
police investigation, Espinoza was still only a suspect in
the investigation of the Foy murder. He therefore had
App. 8
no Sixth Amendment right to invoke. See also Maine v.
Moulton, 106 S.Ct. 477, 490 n.16 (1985) (dictum) (Even if
the state has begun to prosecute an individual on one
charge, subsequent “incriminating statements pertaining
to other crimes, as to which the Sixth Amendment right
has not yet attached, are, of course, admissible at the trial
of those offenses.’’).
The district court believed that Espinoza’s Sixth Amend-
ment right had vested in the murder case because that
case was “related to” the weapons prosecution. The court
also held that, even if the cases were unrelated, the Sixth
Amendment right applied to the murder charge because
the murder occurred before Espinoza was arraigned on
the weapons charge. We reject both of these conclusions.
We need not speculate as to when, if ever, two crimes
may be so closely “related’’ that once the state has begun
the prosecution for one of them, it must be deemed to
have begun the prosecution in the other. It is enough to
say that in this case the crimes are so unrelated as to
render any such theory inapplicable.’ Cf. United States
v. Chu, 779 F.2d 356 (7th Cir. 1985) (An indictment for
drug offenses did not trigger the accused’s Sixth Amend-
ment right to counsel in a related tax evasion investi-
gation.).
We also find it irrelevant that the police were interro-
gating Espinoza for a crime he allegedly committed befor
he was arraigned for the weapons offense. The district
court relied on United States v. Moschiano, 695 F.2d 236
(7th Cir. 1982), cert. denied, 464 U.S. 381 (1983), for the
1 The only common thread linking the weapons and murder cases
is the weapon involved. The two offenses involved different vic-
tims on different dates. There is no claim that they were part of
any pattern or plan. Although Espinoza’s arrest on the weapons
charge did provide the police with evidence—which they might not
otherwise have obtained—that led to his arrest for the Foy
murder, this fortuity does not change the fact that the weapons
offense and the murder were, in every constitutionally significant
aspect, separate crimes.
App. 9
proposition that, under the Sixth Amendment, all “‘post-
indictment statements constituting admissions of past
wrongdoing” are inadmissible unless the accused is given
the right to counsel. United States ex rel. Espinoza v.
Fairman, No. 84 C 7603 at 11 (N.D. Ill. Mar. 12, 1985)
(memorandum opinion) (quoting Moschiano, 695 F.2d at
241-42). However, in Moschiano we were referring only to
post-indictment statements concerning the specific crime
for which the accused had been indicted. We cannot see
why a suspect, who would otherwise have no Sixth Amend-
ment right to counsel, is entitled to that right simply be-
cause he has been charged with committing another
crime.? We found no such entitlement in Hall, supra,
where the petitioner was also under investigation for a
crime that he committed before he was arraigned on other
charges.
IV.
Although Espinoza had no Sixth Amendment right to
counsel in the murder case at the time of the police in-
terrogation, it is clear that, as a suspect in police custody,
he did have a Fifth Amendment right to be assisted by
an attorney at the interrogation. Miranda, 384 U.S. at
469-74. However, Espinoza did not invoke his Fifth
Amendment right at the interrogation. The only time at
which he invoked his constitutional right to counsel was
at his arraignment on the weapons charge, which occurred
prior to the murder interrogation. We must therefore de-
termine whether Espinoza’s invocation of his right to
counsel at his arraignment constituted an invocation of
2 We also reject Espinoza’s claim that, by interrogating him out-
side the presence of the attorney who represented him at his ar-
raignment, the state violated his Sixth Amendment right to
counsel by interfering with his professional relationship with that
attorney. As we stated in Hall, ‘ ‘the Sixth Amendment’s intended
function is not to wrap a Dogg cloak around the attorney-
client relationship. . . .’”” Hall, 804 F.2d at 83 n.5 (quoting Moran
v. Burbine, 106 S.Ct. at 1146).
App. 10
his Fifth Amendment right. If it did, we must next decide
whether Espinoza’s Fifth Amendment invocation remained
in effect at the subsequent police interrogation on the
murder charge. If so, we must resolve whether Espinoza
waived his Fifth Amendment right to counsel at the in-
terrogation.
We conclude that Espinoza invoked his Fifth Amend-
ment right to counsel; that this invocation remained in
effect because the custodial interrogation occurred while
he remained in continuous police custody; and that because
the state initiated the interrogation, Espinoza was in-
capable of waiving his right to counsel. We therefore con-
clude that the state violated Espinoza’s Fifth Amendment
right to counsel and that, as a result, his confession was
inadmissible.
A.
We must first consider whether Espinoza invoked his
Fifth Amendment right to counsel. The state argues that
he did not. Rather, the state contends, Espinoza’s invoca-
tion of the right to counsel at his arraignment on the
weapons charge was limited to his Sixth Amendment right
as the accused in that prosecution. We are unable to ac-
cept so narrow an interpretation of Espinoza’s invocation
of his constitutional rights.
In Michigan v. Jackson, 106 S.Ct. 1404 (1986), the Su-
preme Court set out the approach to be employed in as-
sessing the scope of an individual’s invocation of his or
her constitutional right to counsel. The defendants in
Jackson were arrested for murder. At their arraignments,
they asked the court to appoint counsel. /d. at 1406. The
state subsequently interrogated the defendants without
their attorneys. The defendants, who were later convicted,
appealed, claiming that the state had violated their Sixth
Amendment rights by failing to honor their request for
counsel.
App. 11
Much like the state in this case, the state in Jackson
argued that it had not violated the defendants’ rights to
counsel because the defendants had made only limited in-
vocations of their rights. Specifically, the state argued that
the defendants had only requested to have counsel pres-
ent at their arraignments and that the Court should not
construe these requests as invocations of their rights to
counsel at subsequent custodial interrogations. Jd. at 1409.
The Supreme Court firmly rejected the state’s argument,
holding that it was obligated “to give a broad, rather than
a narrow, interpretation to a defendant’s request for coun-
sel,” id., and that it would therefore presume that the
defendants had invoked the full extent of their Sixth
Amendment rights, id.
Although the Jackson Court was asked only to resolve
whether the defendants had invoked their Sixth Amend-
ment rights to counsel, see id. at 1408 n.4, the obligation
“to give a broad, rather than a narrow, interpretation,”
id. at 1409, to an invocation of the right to counsel is not
limited to the Sixth Amendment context. Rather, the
Court’s interpretation was simply an application of its
“standard for assessing waivers of constitutional rights.”
Id. The Court has recently reaffirmed that the same in-
terpretative approach is to be used in assessing invoca-
tions of the Fifth Amendment right to counsel. See Con-
necticut v. Barrett, 107 S.Ct. 828, 832 (1987) (quoting
Jackson).2 Under this approach, a court must presurne
that an individual has invoked the full extent of his or
her constitutional right to counsel. In order to rebut this
presumption, “the state . . . has the burden of establish-
ing a valid waiver.” Jackson, 106 S.Ct. at 1409.
3 Even though the text of the Fifth Amendment does not pro-
vide a right to counsel, Barrett, 107 S.Ct. at 831-32, the Supreme
Court has consistently recognized the essential role that an at-
torney plays in ensuring that the state does not coerce individuals
into waiving the right not to incriminate themselves. See id.;
Miranda, 486 U.S. at 469-70. Because of the importance of counsel
in protecting the textual right, waivers of the right to counsel are
to be interpreted in the same manner as waivers of the textual
right.
App. 12
Applying the Jackson approach, we must accept, absent
evidence to the contrary, that individuals who invoke their
right to counsel at their arraignment are invoking both
their Sixth Amendment and their Fifth Amendment rights.
The Jackson Court specifically observed that an individual
who has been arraigned has both a Sixth Amendment
and a Fifth Amendment right to counsel at a “‘post-
arraignment custodial interrogation.” Jd. at 1407. The
Court also observed that ‘‘an accused [who] requests an
attorney [at arraignment]... does not know which con-
stitutional right he is invoking.” Jd. at 1409-10 n.7 (quoting
Michigan v. Jackson, 421 Mich. 39, 63-64, 365 N.W.2d 56,
67 (1984)). Because an individual who does not understand
his or her rights cannot validly waive them, see Moran
v. Burbine, 106 S.Ct. at 1141, we are required to presume
that an individual who requests counsel at his or her ar-
raignment is asserting both a Sixth Amendment and a
Fifth Amendment right even if the individual does not
“articulate exactly why or for what purposes he is seek-
ing counsel,” Jackson, 106 S.Ct. at 1409 n.7 (quoting
Michigan v. Jackson, 421 Mich. at 63-64, 365 N.W.2d at
67).
In this case, as in Jackson, the state has presented no
evidence indicating that Espinoza intended to limit his in-
vocation of the right to counsel. Applying the principles
set forth in Jackson, we must conclude that Espinoza’s
unqualified acceptance of counsel at his arraignment was
an invocation of his Fifth Amendment right,4 rather than
a waiver of it.5
4 In Jackson, the defendant specifically requested counsel. Jd. at
1406. Here, in contrast, the petitioner accepted counsel at his ar-
raignment. This distinction, however, is not relevant. The Jackson
Court took pains to note that, in construing the scope of an in-
dividual’s request for counsel, a defendant need not specifically
request counsel. 106 S.Ct. at 1409 n.6 (citing Brewer v. Williams,
430 U.S. 387, 404 (1977).
5 We are aware of only three cases that have ever considered
whether individuals who invoke the right to counsel at their ar-
(Footnote continued on following page)
App. 13
The Supreme Court’s decision in Miranda also requires
us to find that Espinoza invoked his Fifth Amendment
right to counsel. In Miranda, the Court held that if a
suspect “indicates in any manner at any stage of the pro-
cess that he wishes to consult with any attorney before
speaking,’ Miranda, 384 U.S. at 444-45 (emphasis added),
he has invoked his Fifth Amendment right to counsel. The
invocation need not be “clear and unequivocal.”’ United
States ex rel. Riley v. Frazen, 653 F.2d 1158, 1159 (7th
Cir.) (per curiam), cert. denied, 454 U.S. 1067 (1981).
Rather, a court must find that an individual has invoked
the right to counsel if his or her words or actions “rea-
5 continued
raignments are invoking both their Sixth and Fifth Amendment
rights. See Collins v. Frances, 728 F.2d 1822 (11th Cir.) (per
curiam), cert. denied, 469 U.S. 963 (1984), reh’g denied, 469 U.S.
1143 (1985); Jordan v. Watkins, 681 F.2d 1067 (5th Cir.), reh’g
denied sub. nom. Jordan v. Thigpen, 688 F.2d 395 (1982); Blas-
ingane v. Estelle, 604 F.2d 893 (Sth Cir. 1979). In each case, the
court held that the petitioner had invoked only his Sixth Amend-
ment right.
This case is factually distinguishable from Collins, Jordan, and
Blasingane. In each of those cases, the court relied on evidence
that, in its view, indicated that at the time of his invocation the
petitioner was seeking to be assisted in preparing his trial defense
(a Sixth Amendment right) and was not seeking to be shielded
from state-coerced self-incrimination (a Fifth Amendment right).
This evidence included the fact that each petitioner had confessed
to the crime prior to his invocation of the right to counsel at his
arraignment on that crime. In this case, in contrast, there is ab-
solutely no evidence that Espinoza intended to limit his invocation.
We also decline to follow Collins, Jordan, and Blasingane
because the Supreme Court’s decision in Jackson suggests that
they may no longer be good law. Jackson held that once an ac-
cused has invoked his or her Sixth Amendment right to counsel
concerning a crime, the police cannot initiate an interview of the
accused concerning that crime. Jackson, 106 S.Ct. at 1411. In each
of these cases, however, after the petitioner invoked his Sixth
Amendment right to counsel, the police initiated an interview
about that crime.
App. 14
sonably may be so construed.” Id.; see, e.g., Smith v. IIli-
nois, 469 U.S. 91 (1984) (per curiam) (defendant’s state-
ment, immediately after a police officer advised him of
his right to counsel, that ‘‘Uh, yeah, I’d like to do that”
held to invoke the right to counsel); United States v.
Porter, 764 F.2d 1, 6-7 (1st Cir.), reh’g denied, 776 F.2d
370 (1985) (defendant’s unsuccessful effort to contact his
lawyer by telephone held to invoke the right to counsel);
United States v. Cherry, 733 F.2d 1124 (5th Cir. 1984)
(defendant’s statement that “[mJaybe I should speak to
an attorney” held to invoke the right to counsel); McCree
v. Housewright, 689 F.2d 797, 801 (8th Cir. 1982), cert.
denied, 460 U.S. 1088 (1983) (defendant’s statement that
his brother ‘‘told me he th{inks] I need[ ] a lawyer’ held
to invoke the right to counsel). In this case, Espinoza’s
actions at his arraignment indicated that he wanted an
attorney to act as his intermediary with the state. Under
Miranda we are compelled to give effect to his intention.
B.
Having concluded that Espinoza invoked his Fifth
Amendment right to counsel at his arraignment on the
weapons charge, we must next determine whether that
invocation remained in effect at the subsequent question-
ing concerning the Foy murder. We conclude that it did.
l. The duration of the invocation
In the ordinary case, once the state has begun to pros-
ecute an individual, attention is focused on the Sixth
Amendment right to counsel. This is because the Sixth
Amendment applies to aspects of a criminal prosecution
not covered by the Fifth Amendment, such as a line-up,
see United States v. Wade, 388 U.S. 218, 221-23 (1967).
However, at the time the state initiates the prosecution,
the Fifth Amendment right does not vanish. Rather, it
continues to provide a right to counsel at any interroga-
App. 15
tion that occurs during the duration of the time that the
individual remains in police custody. See Jackson, 106
S.Ct. at 1407 (Individuals have both a Sixth Amendment
and a Fifth Amendment right to counsel at “post-
arraignment, custodial interrogations.”’).
There are strong parallels between the duration of an
individual’s Fifth Amendment and Sixth Amendment right
to counsel. The Sixth Amendment right vests when an
individual “‘become{s] the accused.” Escobedo v. Illinois,
378 U.S. 478, 485 (1964). From that point on the accused
is entitled to have an attorney present at all “critical
stages of the prosecution.”’ United States v. Wade, 388
U.S. at 237 (1967). This right continues for as long as the
individual remains “the accused.” That is, until the in-
dividual is either convicted or freed by reason of acquit-
tal or dismissal of the charges.
In a similar manner, the Fifth Amendment right to
counsel vests ‘“‘when an individual is taken into custody.”
Miranda, 384 U.S. at 478; United States v. Zazzara, 626
F.2d 135, 137 (9th Cir. 1980). It is at this moment that
the potential for “governmental coercion” becomes signifi-
cant. See Colorado v. Connelly, 107 S.Ct. 515, 519-24
(1986). From that point on, the suspect has “the right to
have counsel present at any custodial interrogation.’ Ed-
wards, 451 U.S. at 485-86 (emphasis added). Just as the
Sixth Amendment right continues for as long as the in-
dividual is “the accused,” tl.e Fifth Amendment right con-
tinues for as long as the individual is “in custody.” The
right ends only when the heightened potential for state-
coerced self-incrimination ends—upon the release of the
individual from police custody. See United States v. Geitt-
man, 733 F.2d 1419, 1429 (10th Cir. 1984) (suspect’s Fifth
Amendment right to counsel ended when he was released
on bond); United States v. Skinner, 667 F.2d 1306, 1309
(9th Cir. 1982), cert. denied, 463 U.S. 1229 (1983) (suspect’s
invocation of his Fifth Amendment right to counsel did
not bar police-initiated custodial interrogation where sus-
App. 16
pect released and arrested the next day because he “was
not in continuous custody”’).®
2. The scope of the invocation
Unlike the Sixth Amendment right to counsel, which
is limited to the specific crimes for which the state has
begun the prosecution, supra, the Fifth Amendment right
to counsel extends to any crime about which an individual
is questioned while in continuous custody. The difference
between the scope of the two rights reflects their differ-
ing purposes. The “core purpose” of the Sixth Amend-
ment right to counsel is to insure a fair trial. United
States v. Gouveia, 467 U.S. 180, 188-89 (1984). In order
to insure a fair trial, an accused requires counsel only
when the government is investigating him or her concern-
ing the specific crimes for which he or she is being
prosecuted. In contrast, ‘(t]he sole concern of the Fifth
Amendment, on which Miranda was based, is governmen-
tal coercion.”” Connelly v. Colorado, 107 S.Ct. at 523. The
heightened possibility of state ‘‘overreaching,” id., exists
any time the police or prosecutors question suspects in
police custody. Therefore, the Fifth Amendment right to
counsel must extend to custodial interrogation concerning
any crime. :
Because the Fifth Amendment right extends to any in-
terrogation conducted in police custody, if an individual
invokes the right to counsel during a proceeding that con-
cerns one crime, the invocation continues to apply if he
or she is later interrogated about a second crime.’ If it
6 Because Espinoza was never released from the physical custody
of the police, we need not decide the issue of how long the accused
must be released from custody to find a break in continuous
custody.
7 This court’s opinion in White v. Finkbeiner, 687 F.2d 885 (7th
Cir. 1982) (White IJ) supports this conclusion. Although the
Supreme Court vacated our decision because we applied Edwards
retroactively, see Fairman v. White, 465 U.S. 1075 (1982), there
(Footnote continued on following page)
App. 17
were otherwise, the police would be obligated to adminis-
ter new Miranda warnings each time they questioned a
suspect in continuous custody about a different crime. The
Supreme Court has made clear that the police are not
constrained to do so. See Colorado v. Spring, 107 S.Ct.
851 (1987) (no Fifth Amendment violation where a suspect
was arrested on a weapons charge, waived his right to
counsel, answered questions regarding that offense, and
later in the interrogation was questioned about a murder).
3. Espinoza’s invocation
By accepting counsel at his arraignment on the weapons
charge, Espinoza invoked his Fifth Amendment right to
counsel. This invocation entitled Espinoza to be assisted
by counsel at any interrogation, concerning any crime,
that the police or prosecutors conducted while he
remained in continuous physical custody. The interview
conducted by the assistant state’s attorney regarding the
Foy murder occurred while Espinoza remained in con-
tinuous physical custody. It clearly constituted an inter-
rogation. See Rhode Island v. Innis, 446 U.S. 291, 301
(1980). Espinoza, therefore, had the right to be assisted
by counsel at that interrogation.
7 continued
is no reason to conclude that the Court rejected our underlying
reasoning. Therefore, White J/’s analysis remains persuasive. In
White, the defendant was arrested for an offense unrelated to the
murder for which he was eventually convicted. White v. Fink-
beiner, 611 F.2d 186 (7th Cir. 1979) (White J). He invoked his right
to counsel when given his Mivanda warnings. The police officer
who gave defendant his warnings never told any other officer of
this invocation. Jd. at 189. Subsequently, after another- Miranda
warning, the defendant was questioned ab--t the unrelated murder
by a different officer, and confessed. Jd. .,e found that the defen-
dant’s earlier invocation continued to apply at the time of the later
interrogation. White I], 687 F.2d at 887-88.
App. 18
C.
Although Espinoza invoked his Fifth Amendment right
to counsel, and was therefore entitled to be represented
by counsel at the police interrogation, the possibility re-
mains that he may have waived this right. We conclude,
however, that because the state initiated the interroga-
tion, Espinoza was incapable of waiving his previously in-
voked right to counsel.
In Miranda, the Supreme Court held that “iJf the in-
dividual states that he wants an attorney, the interroga-
tion must cease until an attorney is present.” Miranda,
384 U.S. at 474. However, Miranda left open the possibili-
ty that the police could request individuals who had in-
voked their right to counsel to waive this right. Cf
Michigan v. Mosley, 423 U.S. 96 (1975)(Miranda permits
the police to request individuals who have invoked their
Fifth Amendment right to silence to waive that right).
The Court resolved this question in Edwards v. Arizona,
451 U.S. 477 (1981), holding that an accused who has “ex-
pressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him,
unless the accused himself initiates further communica-
tion, exchanges, or conversations with the police.” Jd. at
484-85.
The Edwards Court further considered the situation in
which the state impermissibly initiates an interrogation
after an individual has invoked the Fifth Amendment
right to counsel. The Court held that, where the state
acts in this matter, it may not establish that the suspect
waived the right to counsel merely by showing only that
the suspect “responded to further police-initiated custodial
interrogation even if he ha[{d] been advised of his rights.”
Id. at 484. Rather, when the state impermissibly initiates
an interrogation, “any waiver of the defendant’s right to
counsel [at] that police-initiated interrogation is invalid.”
Michigan v. Jackson, 106 S.Ct. at 1411.
App. 19
The state suggests that even if Espinoza did invoke his
Fifth Amendment right to counsel, the rules laid down
in Edwards do not apply in this case because Espinoza
invoked his Fifth Amendment right at his arraignment
rather than, as in Edwards, after the police had begun
the interrogation. We do not see how this changes the
analysis. Once an individual is taken into custody, he or
she may request to have an attorney present at any in-
terrogation. A suspect may make this request “at any
stage of the process,” Miranda, 384 U.S. at 444-45. The
instant a suspect does so, the prophylactic rules set down
in Edwards come immediately into operation. They apply
for as long as the underlying right applies.
Because Espinoza invoked his Fifth Amendment right
to counsel at his arraignment, the state’s attorney was
barred, under Edwards,® from initiating any interrogation
while Espinoza remained in continuous custody. The state
concedes that it initiated the interrogation of Espinoza
regarding the Foy murder. Therefore, Espinoza was con-
stitutionally incapable of waiving his right to counsel. By
interrogating Espinoza about the murder in the absence
of his lawyer, the police violated Espinoza’s Fifth Amend-
ment right to counsel.
V.
The State of Illinois violated Espinoza’s Fifth Amend-
ment right to counsel by interrogating him without his
lawyer. Therefore, the trial court should have granted
Espinoza’s motion to suppress the confession that he gave
at his interrogation. Because Espinoza’s confession was
admitted into evidence at his trial for the murder of
Frank Foy, the district court correctly granted Espinoza’s
writ of habeas corpus.
8 Edwards applies to all cases in which defendants were not final-
ly convicted before May 18, 1981, the date on which that case was
decided. Shea v. Louisiana, 105 S.Ct. 1065 (1985). Espinoza was
not convicted until 1983. Edwards therefore applies.
App. 20
The order of the district court is AFFIRMED.
A true Copy:
Teste:
Appeals for the Seventh Circuit
App. 21
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
No. 84 C 7603
UNITED STATES OF AMERICA, ex rel. MIGUEL ESPINOZA,
Petitioner,
WARDEN J.W. FAIRMAN,
Respondent.
MEMORANDUM OPINION
Petitioner Miguel Espinoza filed for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254 (“§ 2254”), challeng-
ing his April 14, 1982, conviction for murder and armed
robbery. Espinoza, sentenced to 40 years imprisonment
for those offenses,! claims that he was denied his Fifth
and Sixth Amendment rights to assistance of counsel
when his confession was admitted into evidence at trial.
He raised these issues in a motion to suppress before trial
and on his direct appeal; the respondent admits that peti-
tioner has exhausted his state remedies. Answer, p. 1.
The case is before us on respondent’s motion for sum-
mary judgment. Petitioner moved for appointment of coun-
sel, which we denied because the petition, to which was
attached petitioner’s appellate brief, sufficiently states the
nature of petitioner’s claim and sets forth in great detail
the legal issues involved. Order of November 29, 1984.
Based upon the trial record, the appellate briefs, peti-
tioner’s petition for rehearing in state court, and respon-
App. 22
dent’s memorandum in support of his motion for summary
judgment, we deny respondent’s motion and grant the
writ.
FACTS
On August 29, 1980, Chicago police, responding to a
report of a man with a gun, arrived at a tavern, searched
petitioner, discovered a gun, and arrested petitioner for
unauthorized use of a weapon (“UUW?’’). Trial Record
(“Record”) 95-99, 175, 182, 311. Petitioner subsequently
was incarcerated in Cook County Jail to await trial. A
public defender was appointed to represent petitioner and
on some date prior to September 3, 1980, appeared in
court on his behalf on this charge. Record 135, 175, 182.
The police Crime Laboratory and Firearms Section ana-
lyzed the gun found on petitioner and determined that
it had been used to fatally wound Frank Foys, Jr. Record
201-202. On September 3, 1980, petitioner was taken from
the jail and brought to see Assistant State’s Attorney
Brian Collins at the Cook County State’s Attorney’s of-
fice by two police investigators. Collins testified that he
did not send for petitioner and did not know how peti-
tioner came to be in his office. Record 123. Collins learned
that petitioner had been taken into custory on a charge
other than the Foys murder sometime before he began
to question petitioner about the murder. Record 121. He
did not ask petitioner about his representation on the
other charge, and stated that he did not know that peti-
tioner was represented by a public defender. Record 121.
Collins testified that he gave petitioner his Miranda
warnings and that petitioner orally waived his rights. Rec-
ord 113-14. Collins then began to question petitioner about
the murder. This interrogation was carried out in English,
and Collins stated that petitioner spoke English “like a
native.”” Record 124. After 15 to 20 minutes of question-
ing, Collins sent for a court reporter. After the court
reported arrived, Collins again advised petitioner of his
Miranda rights. Record 117. Again in English, Collins
App. 23
questioned petitioner. Petitioner confessed to the Foys
murder. The court reporter typed his confession, and peti-
tioner was given the opportunity to read and sign each
page. Record 131. Petitioner signed the confession. Record
117.
The next’ morning a complaint was filed against peti-
tioner based upon his confession. The UUW charge was
dropped. On October 21, 1980, the judge assigned to the
murder case ordered a mental fitness examination for peti-
tioner. A second and a third examination were also or-
dered in January and February 1981. Based upon the tes-
timony of Dr. Albert Sipes, a psychiatrist, and the report
of another psychiatrist, Dr. Gilbert Bogan, who had ex-
amined petitioner, petitioner was found unfit to stand trial
and was committed to the Department of Mental Health.
Record 1-18, 296. Dr. Sipes testified that petitioner was
suffering from dysthymic disorder, a depressive neurosis
which rendered him unable to cooperate with his attorney.
Record 7, 59, 72. Dysthymic disorder is a temporary con-
dition, brought on by situational stress, which prevents
the subject from caring about his situation. Petitioner had
apparently attempted suicide while in jail. Record 4-5.
While committed to a mental health facility following
the finding of unfitness, petitioner received anti-depression
medication. Record 42. Dr. Sipes examined petitioner
again on December 15, 1981, and found him still not men-
tally fit for trial. Record 305.
On March 3, 1982, a full hearing was held regarding
petitioner’s mental fitness. Dr. Gerson Kaplan, a psychia-
trist, testified that he spoke with petitioner in English,
that petitioner had no difficulty speaking English, that he
had given petitioner an electroencephalogram which showed
no abnormalities, and that petitioner was not suffering
from any mental disorder. Record 25-36, 40-41. Reports
from the facility where petitioner was committed were
mixed. Record 37-38. Dr. Kaplan interpreted these reports
to suggest that petitioner was pretending to be mentally
ill. Record 40. Dr. Sipes testified that in his opinion, peti-
App. 24
tioner was still unable to cooperate with his attorney and
was unfit for trial. Record 61. In Dr. Sipes’ view, peti-
tioner’s depression still prevented him from caring what
happened to him; petitioner would “sit there and do what
he is told, but that is all that he can do.”’ Record 72. Dur-
ing his hearing, petitioner abruptly left the courtroom and
returned, and mumbied unintelligibly. Record 65, 81.
Based upon this evidence, the judge found petitioner fit
for trial and able to cooperate with his attorneys. Record
90.
A hearing on petitioner’s motion to suppress his con-
fession was then held. Collins testified as to the circum-
stances of the interrogation, see supra, and petitioner,
through a Spanish interpreter, stated that he did not un-
derstand English very well and had not understood much
of what had transpired with Collins. Petitioner had re-
ceived a second grade education in Mexico, and had a
substantial history of drug and alcohol abuse. Record
139-45. His arrest record indicated many arrests for drunk
driving and possession of dangerous drugs. Record 311.
Petitioner also claimed that he had been hospitalized for
“mental damage’”’ following a car accident, but no hospital
records were offered. Record 178.
The trial judge denied the motion to suppress, making
several findings of fact. He found no language barrier:
“while he may feel more comfortable with Spanish .. .
he did, in fact understand all that was done.” Record 176.
The court also found that the government initiated inter-
rogation (Record 175), petitioner was “duly advised of his
Miranda warnings” (Record 184), and concluded that “‘in
light of all the attendant circumstances [petitioner] know-
ingly and intelligently, freely and voluntarily gave the
statement in question in this cause.”’ Record 183.
Petitioner was then convicted of the murder after a stip-
ulated bench trial in which the confession was the prin-
cipal state’s evidence. An interpreter was provided for
petitioner at trial (Record 186), and upon the conclusion
of evidence and sentencing, petitioner, over his counsel’s
App. 25
objection, gave a rambling statement in Spanish. He re-
marked upon “certain mental problems” he had, his rela-
tionship with God, requested that he be given the death
penalty and that his body be given an autopsy. Record
223. The trial judge declined to sentence petitioner to
death. Record 223.
The Illinois appellate court affirmed the denial of the
motion to suppress the confession, and held that the trial
court’s finding of voluntary waiver of counsel was sup-
ported by the manifest weight of the evidence because:
(1) petitioner understood English; (2) petitioner was twice
advised of his right to assistance of counsel; (3) the state
introduced evidence that petitioner did not suffer from
a serious mental illness; and (4) petitioner made no re-
quest for counsel. People v. Espinoza, No. 82-1080, slip
op. at 5 (1st Dist. Ill. App. Ct. Aug. 31, 1983).
DISCUSSION
We deny respondent’s motion for summary judgment
and grant petitioner’s writ for habeas corpus because the
facts in the record? indicate that the state violated peti-
tioner’s Fifth Amendment right to counsel, as delineated
in Edwards v. Arizona, 451 U.S. 477 (1981). In addition,
we find that because petitioner’s Sixth Amendment right
to counsel had attached at the time he was questioned,
and petitioner did not validly waive that right, the state
violated petitioner’s Sixth Amendment right as well.®
Fifth Amendment Right to Counsel
In Edwards, the Supreme Court held that once a defen-
dant has invoked his right to counsel, the government
must cease all interrogation. Defendant initiation is the
only method by which a defendant can validly waive his
Fifth Amendment right to counsel. Jd. at 484-85. This rule
is “rigid’’ and clear-cut, in order to avoid any possibility
that police will attempt to badger a suspect into confess-
ing. Smith v. Illinois, __.. U.S. ___, 105 S.Ct. 490, 492
(1984).
App. 26
Here, petitioner obviously at some point prior to inter-
“rogation on the murder charge invoked his right to coun-
sel, because a public defender was appointed for him and
appeared at his arraignment on the UUW charge. Respon-
dent has not argued that petitioner initiated the conver-
sation, and the trial court specifically held that interroga-
tion was initiated by the state. Record 175. Therefore,
following Edwards, the facts here demonstrate a viola-
tion of petitioner’s Fifth Amendment right to counsel.
The trial and appellate courts found that Edwards was
inapplicable, apparently because Collins questioned peti-
tioner about a murder, while the public defender had been
appointed to defend petitioner on the UUW charge:
Defendant fails to cite any authority to support his
assertion that the appointment of counsel to repre-
sent him in a separate prosecution is the equivalent
of an invocation of his right to counsel in the instant
case. We therefore believe that the trial court’s find-
ing of voluntary waiver of counsel was supported by
manifest weight of the evidence.
People v. Espinoza, slip op. at 5; see Record 175.
Three cases from the Seventh Circuit and this district
clearly indicate that, under Edwards, once a suspect in-
vokes his right to counsel on one charge, the government
may not initiate interrogation on any other charge. White
v. Finkbeiner (II), 687 F.2d 885 (7th Cir. 1982), vacated
sub nom Fairman v. White, ___._ U.S. ___, 104 S.Ct.
1433 (1984), on remand, ___ F.2d , No. 79-1563 (7th
Cir. Jan. 15, 1985); United States ex rel. Karr v. Wolff,
556 F. Supp. 760 (N.D. Ill. 1983), vacated, 732 F.2d 615
(7th Cir. 1984); and United States ex rel. Kines v. Geer,
527 F. Supp. 307 (N.D. Ill. 1981).4
In White, the defendant was arrested for an offense
unrelated to the murder for which he was eventually con-
victed. White v. Finkbeiner (I), 611 F.2d 186 (7th Cir.
1979).5 He invoked his right to counsel when given his
Miranda warnings. The police officer who gave defendant
his warnings never told any other officer of this invoca-
App. 27
tion. Id. at 189. Subsequently, after another Miranda
warning, defendant was questioned about the unrelated
murder by a different officer, and confessed. /d.
The Seventh Circuit found that the Court’s decision in
Edwards made the confession inadmissible. It was irrele-
vant under Edwards whether or not the officer question-
ing defendant about the murder knew that defendant had
invoked his right to counsel on the unrelated charge: Ed-
wards made government initiation of any conversation im-
permissible. White (II), 687 F.2d at 887 n. 9.
Similarly, in Karr, the petitioner was arrested in
McHenry County, Illinois, for an offense committed in that
county. Karr, 556 F. Supp. at 761. Petitioner invoked his
right to counsel. Meanwhile, authorities in Lake County,
Illinois, learned that police in McHenry were holding peti-
tioner for an offense with a modus operandi similar to
a crime being investigated in Lake County. Lake Coun-
ty police officers travelled to McHenry, read petitioner
his Miranda warnings, and questioned him about the
unrelated Lake County offense. Petitioner confessed. The
court granted the petition, finding a violation of Edwards.
The Court stated that ‘““Hdwards would make it incum-
bent on the Lake County police to determine whether
[petitioner] had invoked his right to counsel and to cut
short their interrogation if he had.” Karr, 556 F. Supp.
at 764.
Finally, in Kimes, petitioner was arrested for theft. He
invoked his right to counsel. A few hours later, police initi-
ated interrogation concerning an unrelated armed robbery,
and petitioner confessed. The court granted petitioner’s
writ, finding Edwards controlling, and stated that it was
irrelevant that the second interrogation involved an of-
fense unrelated to the first interrogation. Kimes, 527 F.
Supp. at 309 n. 3.
These decisions make it clear that when a defendant in-
vokes his right to counsel, the government may not in-
itiate interrogation in any charge, however unrelated the
subsequent questioning may be to the initial interroga-
App. 28
tion. Therefore, the state in the instant case should not
have attempted to question petitioner about the murder:
Edwards “would make it incumbent on” Collins to deter-
mine whether petitioner had invoked his right to counsel
and “to cut short [his] interrogation if he had.” Karr, 556
F. Supp. at 764.6 Because the state clearly initiated in-
terrogation after petitioner had invoked his right to
counsel, we find that the state violated petitioner’s Fifth
Amendment rights.
Sixth Amendment Right to Counsel
Moreover, we find that because the UUW charge was
related to the murder charge, petitioner’s Sixth Amend
ment right to counsel had attached at the time he was
questioned. Because the record does not demonstrate a
valid waiver, this right was violated.
The state and trial courts found that petitioner’s Sixth
Amendment rights had not yet attached at the time he
was questioned, because petitioner had not been charged
with murder, but only unlawful use of a weapon. Because
Sixth Amendment rights attach only after initiation of
adversary judicial proceedings, see Kirby, 406 U.S. at 690
(1972), the state courts found that at the time of interro-
gation, petitioner’s Sixth Amendment rights had attached
only in relation to the UUW charge. Espinoza, slip op.
at 6. The courts based their decisions on their conclusion
that the UUW charge was not related to the murder
charge. Id. at 8.
We disagree. In Massiah, the defendant had been ar-
rested on narcotics charges. While free on bail, he was
approached by a federal agent who elicited incriminating
statements from him. The government used these state-
ments in the trial against him; which, in addition to the
original charges, included new counts derived from the
statements. Massiah, 377 U.S. at 206, 307 F.2d 62, 78 (2d
Cir. 1962). The Supreme Court reversed the defendant’s
conviction, holding that government solicitation of in-
criminating statements in the absence of counsel violates
alcatel
App. 29
the Sixth Amendment. Massiah, 377 U.S. at 206. Thus,
even in motion to suppress, the first case to hold solicited
statements inadmissible, the statements concerned charges
not identical to the original charge against the defendant.
See United States ex rel. Sanders v. Rowe, 460 F. Supp.
1128, 1189 (N.D. Ili. 1978).
The Illinois Supreme Court found that Sixth Amend-
ment rights did not attach in one case because, unlike
Massiah, the later charges had not been “procured pur-
suant to the investigation of the original charges for which
adversary proceedings had been initiated.’”’ People v. Mar-
tin, 102 Ill.2d 412, 466 N.E.2d 228, 232 (1984). Here, the
murder charge was “procured pursuant” to the UUW
charge: by analyzing the gun obtained in the UUW ar-
rest, the state linked petitioner to Foys’ murder. The deci-
sion to question petitioner regarding the murder grew
directly out of the UUW charge.
Moreover, even if the UUW charge were not related
to the murder charge, we would still find that petitioner’s
Sixth Amendment rights had attached, because the inter-
rogation involved wrongdoing committed prior to the
UUW arrest. The Seventh Circuit had distinguished solici-
tation that violates motion to suppress from constitutional
solicitation by finding “‘post-indictment statements con-
stituting admissions of past wrongdoing” are not. United
States v. Moschiano, 695 F.2d 236, 241-42 (7th Cir. 1982).
In Moschiano, the court specifically stated, “Massiah for-
bids the use at trial of uncounseled post-indictment state-
ments relating to past wrongdoing.” Jd. at 243. See also
United States v. Merritts, 537 F.2d 713, 715 n. 4 (7th Cir.
1975) (distinguishing Massiah based on Massiah’s state-
ments concerning “past wrongdoing,” not new criminal
acts).
Here, the statements concerning Foy’s murder related
to past wrongdoung, not an act committed after petitioner
had been arraigned in the UUW charge. Therefore, under
the Seventh Circuit’s interpretation of Massiah, the gov-
ernment could not deliberately solicit such statements in
ee
App. 30
the absence of counsel, and petitioner’s Sixth Amendment
right to counsel was violated, unless petitioner waived
that right.?
Respondent argues that even if petitioner’s Sixth Amend-
ment rights did attach, petitioner waived that right when
he responded to questioning after being given his Miran-
da warnings. We disagree.
In order to demonstrate a waiver of the Sixth Amend-
ment right to counsel, the government must show an in-
tentional relinquishment or abandonment of a known right
or privilege. Brewer v. Williams, 430 U.S. 387, 404 (1977),
citing Johnson v. Zerbst, 304 U.S. 458 (1938). The Zerbst
test places a “heavy’’ burden on the government, and
“courts indulge every reasonable presumption against
waiver.” White (i), 611 F.2d at 192; Zerbst, 304 U.S. at
464. Each waiver must be evaluated on the basis of its
own fact situation. Zerbst, 304 U.S. at 464; Robinson v.
Percy, 738 F.2d 214 (7th Cir. 1984). In this case, the gov-
ernment’s burden is raised above that found in Zerbst
because a high burden of proof is imposed to show waiver
of counsel where, as here, counsel has already been ap-
pointed for the defendant prior to the time that he was
questioned. United States v. Springer, 460 F.2d 1344 (7th
Cir.), cert. denied, 409 U.S. 873 (1972).
Applying a heightened Zerbst test to the facts of this
case, we find that respondent is not entitled to summary
judgment, but, to the contrary, the record demonstrates
lack of valid waiver, entitling petitioner to a writ.
The facts in the record argue against waiver. Zerbst and
Robinson indicate that a defendant’s background and ex-
perience are relevant. Elsewhere, the Seventh Circuit also
considered background and experience, and, in finding
wavier, specifically noted that the defendant had no his-
tory of drug use and did have a knowledge of court prac-
tice. United States v. Davis, 604 F.2d 474 (7th Cir. 1979).
Here, petitioner’s background indicates little education,
a long history of alechol and drug abuse, and that he was
“more comfortable” speaking and understanding Spanish.
App. 31
Record 176. While he had a long arrest record, none of
these arrests involved violent crimes, but were all drug,
alcohol and car theft violations. Record 311. Also, Robin-
son noted the fact that a defendant knows he is being
charged with the crime about which he is being ques-
tioned is an indication of waiver. Robinson, 738 F.2d at
222. Here, petitioner was not aware prior to questioning
that the state intended to charge him with murder. In
Springer, the Seventh Circuit also took into account a
time interval to reflect before confessing, which did not
occur here.
Petitioner’s mental state at the time he was questioned
is one more factor which cuts against waiver. At one
point, he was deemed unfit for trial because he suffered
from nervous depression and evinced suicidal tendencies.
This type of disorder is triggered by stress, and renders
the subject very cooperative and unable to care about his
situation. Record 75. Despite a later finding of fitness,
we regard the first finding of unfitness as significant be-
cause it was made at a point closer in time to the inter-
rogation. Certainly, incarceration in Cook County Jail can
be considered a stressful event, likely to trigger depres-
sion in a person vulnerable to such a response. There-
fore, the evidence tends to support an inference that peti-
tioner was suffering from depression when he was ques-
tioned. According to doctors’ testimony, if petitioner were
depressed when he met Collins, he would have had no
concern about himself, and might have agreed with what-
ever Collins wanted him to say. The two sets of Miran-
da warnings given to petitioner would have had little
effect.
Based upon this showing, using a totality of circum-
stances test with a strict burden of proof on the state,
and keeping in mind petitioner’s limited education, limited
court experience, history of alcohol and drug abuse, and
the circumstances under which his confession was taken.
with no counsel present and government initiation, we find
that petitioner did not voluntarily waive his Sixth Amend-
ment right to counsel.
App. 32
CONCLUSION
Respondent’s motion for summary judgment is denied.
Because the facts in the record indicate that, contrary
to the rule set out in Edwards, the state initiated inter-
rogation in the absence of petitioner’s counsel, and that
petitioner did not waive his Sixth Amendment right to
counsel, we grant the petitioner a writ of habeas corpus.
Petitioner is to be discharged from custody unless the
state retries him within 120 days. If the state decides to
appeal this order, we will entertain a motion to stay is-
suance of the writ pending appeal.
DATED: March 12, 1985
ENTER: /s/ John F. Grady
United States District Judge
1 Espinoza’s conviction for armed violence was vacated by the
Sane court in —_ of People v. Donaldson, 91 Ill.2d 164, 435
.E.2d 477 (1982). People v. Espinoza, No. 82-1080, slip op. (1st
Dist., Ill. App. Ct. Aug. 31, 1983).
2 Pursuant to § 2254, we presume that all of the state court’s
findings of fact, e.g., that petitioner could understand English, are
correct. We do not presume correctness as to the court’s legal
conclusions, e.g., that petitioner waived his right to counsel. Deter-
minations of waiver are not factual findings, but rather are issues
of federal law. Brewer, 430 U.S. at 402. Therefore, a state court’s
finding as to waiver is not binding on this court. United States
v. Scott, 501 F. Supp. 53 (N.D. Ill. 1980). The Seventh Circuit in
Robinson did state in reviewing a state trial and appellate court’s
finding of waiver that “lower courts’ determinations regarding a
defendant’s waiver are ‘entitled to substantial deference,’ ” citing
Springer and Sumner v. Mata, 449 U.S. 589, 546 (1981). However,
App. 33
the court in Springer was referring to the federal district court’s
finding of waiver, and Sumner did not involve waiver. Therefore,
while we give the state court’s determinations great considera-
tion in this case, in light of Brewer, we base our legal conclusions
on an independent review of the record.
3 The Fifth Amendment right to counsel attaches when a suspect
is subjected to custodial interrogation. Miranda v. Arizona, 384
U.S. 474 (1966). The Sixth Amendment right to counsel attaches
when the government deliberately solicits information from a
defendant after adversarial proceedings have begun. Kirby v. Illi-
nois, 406 U.S. 682 (1970); Massiah v. United States, 377 U.S. 201
(1964).
4 White and Karr were vacated and remanded by the Supreme
Court and Seventh Circuit after lower courts found confessions
inadmissible under Edwards, because the Court held that Edwards
should not be applied retroactively, Solem v. Stames, ___._ U.S.
____, 104 S.Ct. 1338 (1984). Therefore, the remanding courts in-
structed the lower courts to apply pre-Edwards law.
Edwards was decided on May 18, 1981. At that point in time,
petitioner had been questioned and charged with murder, but had
not yet been tried. The Supreme Court recently has ruled that
Edwards applies to all cases in which defendants were not finally
convicted before the date on which Edwards was decided. Shea
v. Louisiana, _.___ U.S. __, S.Ct. __., 53 U.S.L.W. 4173
(U.S. Feb. 20, 1985). Therefore, Edwards applies in this case, and
the vacated opinions in White (II) and Karr are indicative of the
Seventh Circuit’s view of post-Edwards law.
5 White (J) was vacated by the Supreme Court in light of Ed-
wards, 415 U.S. 1013 (1981).
8 We note that this case differs from the situation found in White
(ID, Karr and Kimes in that in those three cases, the government
initiated questioning before the defendant had seen his attorney at
all. Here, petitioner did see counsel, at least when he was arraigned
on the UUW charge. Therefore, the initiation of questioning oc-
curred after petitioner had conferred with his attorney. Edwards
states that “‘an accused . . . is not subject to further interroga-
tion by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication.”
Edwards, 451 U.S. at 484-85. Theoretically, respondent could argue
that because counsel had been made available to petitioner when
he was arraigned on the UUW charge, Edwards does not apply,
and the state could initiate questioning.
But we do not interpret Edwards to permit such initiation.
Rather, we believe that the Court meant that after a suspect has
invoked his Fifth Amendment right to counsel, the government
App. 34
may not initiate any questioning unless the suspect’s counsel is
present at the interrogation. The Fifth Amendment right to
counsel means that a suspect “must have an opportunity to con-
fer with the attorney and to have him present during any subse-
quent questioning.” Miranda, 384 U.S. at 474. Petitioner invoked
this right, including the opportunity to have counsel present at
subsequent questioning, when a public defender was appointed for
him. Therefore, the government could not bypass petitioner’s at-
torney and initiate questioning in his absence. An interpretation
of Edwards allowing such conduct would undermine the entire ra-
tionale of that decision. As indicated, supra, at 6, the Court held
as it did in Edwards because it feared that police would attempt
to badger a suspect into confession. A suspect is vulnerable to
such badgering whenever his attorney is not present. See Miran-
da, 384 U.S. at 474. Therefore, we interpret Edwards to hold that
any discussion must be initiated by the suspect or held with coun-
sel present.
7 We also find pertinent the remarks made in the dissent in
Martin:
While the primary responsibility of the attorney was in the
[original] charge, to say that he had only the responsibility of
counseling on that charge and that the benefit of counsel to
which the client was entitled was also so limited seems dan-
gerously close to making the attorney’s appointment here only
a formalism.
Martin, 102 Ill.2d at 426; 466 N.E.2d at 235 (Ward, J., dissenting,
joined by Goldenhersh and Simon, JJ.) Even if the instant case
did not meet the test for relatedness set forth by the majority
in Martin (which it does), we believe that unless petitioner’s public
defender is considered his attorney for Sixth Amendment purposes
on the murder charge, his appointment would amount to mere
formalism.
App. 35
Third Division—Filed 8-31-83
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
No. 83-706
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
MIGUEL A. ESPINOZA (Impleaded),
Defendant-Appellant.
Appeal from the Circuit Court of Cook County.
Honorable Fred Suria, Jr., Judge Presiding.
ORDER DISPOSING OF APPEAL
UNDER SUPREME COURT RULE 23
Following a bench trial on stipulated facts, defendant,
Miguel A. Espinoza, was convicted of murder (Ill. Rev.
Stat. 1981, ch. 38, par. 9-1), armed robbery (Ill. Rev. Stat.
1981, ch. 38, par. 18-2) and armed violence (Ill. Rev. Stat.
1981, ch. 38, par. 33A-2/9-1). He was sentenced to concur-
rent terms of 40 years for murder, 30 years for armed
robbery and 30 years for armed violence. On appeal, de-
fendant contends that the trial court erred in refusing to
suppress a confession allegedly obtained in violation of his
fifth and sixth amendment right to the assistance of
counsel.
At a hearing on the motion to suppress, Officer Anthony
Denton testified that on August 29, 1980, he responded
App. 36
to a radio message about a man with a gun in a tavern.
When he reached the tavern, he was met by an unidenti-
fied person who indicated that defendant was the man
with the gun. Officer Denton condacted a pat-down search
of defendant and arrested him upon finding a gun in his
pants pocket.
Defendant was taken into custody and charged with the
unlawful use of weapons. At some time between August
29 and September 3, he made a court appearance on that
charge and was represented by an assistant public
defender.
Assistant State’s Attorney Brian Collins testified that
he interviewed defendant on September 3, 1980, at the
Cook County State’s Attorney’s office located at 26th and
California. After having been advised of his Miranda
rights, defendant gave an oral statement concerning a
murder and robbery which occurred on August 24, 1980.
Ballistics tests of the gun recovered from defendant on
August 29 had shown that it was the same gun used in
the murder and armed robbery of Frank Foys, Jr. Upon
completion of the oral statement, a court reporter was
called and defendant was again advised of his Miranda
rights. He then gave a written confession admitting that
he fatally shot the victim and robbed him of his wallet
and watch.
Collins stated that both the oral and written confessions
were conducted in English and that defendant spoke Eng-
lish “like a native.”’ He further stated that while in the
office defendant read a sports magazine and discussed an
article concerning a football player. It was Collins’ opin-
ion that defendant was in excellent health at the time.
Although he knew defendant was in custody on an unlaw-
ful use of weapons charge at the time of the confession,
he did not know that an assistant public defender had
been appointed to represent him on that charge. Collins
did not ask any questions concerning the unlawful use of
weapons charge.
App. 37
Defendant testified, through an interpreter, that he re-
membered the interview with Collins but that he could
not understand some of the questions because he did not
speak English very well. He stated that he first came to
this country in 1969 and he admitted conversing in En-
glish with Drs. Kaplan and Stipes, wh» examined him to
determine his fitness to stand trial.?
At the conclusion of the hearing, the court entered spe-
cific findings that: (1) defendant had no difficulty speak-
ing or understanding the English language; (2) he was
represented by an assistant public defender on a separate,
unlawful use of weapons charge; (3) at the time of the
confession, he had not yet been charged with the murder
and armed robbery of Frank Foys, Jr.; (4) there was no
evidence indicating that defendant invoked his right to
counsel with respect to the instant charges; and (5) the
confession was “knowingly, intelligently, freely and volun-
tarily” given.
Defendant first contends that his fifth amendment right
to the assistance of counsel during custodial interrogation
was violated. He argues that the appointment of an assis-
tant public defender to represent him on the unlawful use
of weapons charge constituted an invocation of his right
to counsel with respect to the instant charges.
The right to the assistance of counsel during custodial
interrogation is an adjunct of the fifth amendment privi-
lege against self-incrimination. (People v. Krueger (1980), 82
Ill. 2d 305, 412 N.E.2d 587.) If, at any time during a cus-
todial interrogation, an accused expresses his desire to deal
with law enforcement officials only through counsel, all
questioning must stop until counsel has been made avail-
able to him. The only exception to this rule exists where
defendant himself initiates further communication with the
1 Defendant was initially found unfit to stand trial on February
23, 1981, and was committed to the Department of Mental Health.
He was subsequently found competent to stand triai on March 3,
1982.
|
App. 38
authorities. (Edwards v. Arizona (1981), 451 U.S. 477, 68
L. Ed. 2d 378, 101 S. Ct. 1880.) In order to establish valid
waiver of the right to counsel, the State must prove, by a
preponderance of the evidence, “‘an intentional relinquish-
ment or abandonment of a known right or privilege.” (Peo-
ple v. Aldridge (1980), 79 Ill. 2d 87, 92, 402 N.E.2d 176, 179.)
Where the State makes a prima facie showing that a con-
fession was procured in accordance with constitutional
guidelines, the burden of producing evidence that the con-
fession was illegally obtained shifts to the defense, and
shifts back to the prosecution only when the defendant
has produced such evidence. (People v. Cozzi (1981), 93
Ill. App. 3d 94, 416 N.E.2d 1192.) To show that he in-
voked his right to counsel, the defendant must show that
the request for counsel was made by him or on his behalf.
People v. Krueger.
In the instant cause, the State established that defen-
dant understood English and that he was twice advised
of his right to the assistance of counsel. Although defen-
dant claims to have suffered from brain damage, the State
introduced evidence that he was in good health and did
not suffer from a serious mental illness. As the trial court
specifically noted, defendant produced no evidence indi-
cating that he made a request for counsel. Furthermore,
defendant fails to cite any authority to support his asser-
tion that the appointment of counsel to represent him in
a separate prosecution is the equivalent of an invocation
of his right to counsel in the instant cause. We therefore
believe that the trial court’s finding of a voluntary waiver
of counsel was supported by the manifest weight of the
evidence.
Defendant next contends that his sixth amendment right
to counsel attached when adversary proceedings were in-
itiated on the separate unlawful use of weapons charge.
He argues that this right was violated when the author-
ities questioned him concerning the instant crimes in the
absence of counsel.
App. 39
A defendant’s sixth amendment right to the assistance
of counsel attaches at or after the initiation of adversary
judicial criminal proceedings, whether by way of formal
charge, preliminary hearing, indictment, information or ar-
raignment. (Moore v. Illinois (1977), 434 U.S. 220, 54 L.
Ed. 2d 246, 98 S. Ct. 458.) However, Illinois courts have
held that the initiation of adversary proceedings on one
charge does not trigger a defendant’s sixth amendment
right to counsel with respect to an unrelated offense. Peo-
ple v. Martin (1979), 80 Ill. App. 3d 281, 399 N.E.2d 265;
People v. Earl (1979), 78 Ill. App. 3d 188, 397 N.E.2d 97.
In People v. Martin, the defendant was arrested on
January 16, 1976, and charged with certain offenses. On
January 19, 1976, he was questioned about an unrelated
burglary, armed robbery and murder. After receiving the
Miranda warnings, the defendant made a statement and
was subsequently charged with those crimes. On appeal,
he argued that his sixth amendment right to counsel had
been violated. In rejecting that argument, the court noted
that although adversary proceedings had begun on the
charges for which the defendant was initially arrested, he
had not yet been formally charged with the unrelated of-
fenses which formed the basis of the questioning. There-
fore, his sixth amendment right to counsel had not yet
attached with regard to those offenses.
In People v. Earl, the defendant was arrested on De-
cember 27, 1976, and charged with the unlawful use of
weapons. Counsel was appointed to represent him, and
a preliminary hearing was held. On January 13, 1977, the
defendant was placed in a lineup and identified as the
perpetrator of an armed robbery and aggravated battery
which had occurred on December 5, 1976. His attorney
was not present at the lineup. The court held that al-
though the defendant’s sixth amendment right to counsel
had attached in the separate unlawful use of weapons
prosecution, it was “evident that in the instant matter
adversary criminal proceedings relevant to the armed rob-
bery or aggravated battery offenses had not been initiated
against defendant when he took part in the lineup.” (Peo-
App. 40
ple v. Earl (1979), 78 Ill. App. 3d 188, 193, 397 N.E.2d
97, 101.) Therefore, his right to counsel had not yet at-
tached with respect to those offenses.
Defendant relies on United States ex rel. Sanders v.
Rowe (N.D. Ill. 1978), 460 F. Supp. 1128, for the proposi-
tion that once adversary proceedings commence on one
offense, the right to counsel attaches during any subse-
quent interrogation even if the questioning pertains to dif-
ferent offenses and is conducted by a different police agen-
cy. In Sanders, defendant was arrested and charged with
armed robbery. Later that day, in the absence of coun-
sel, he confessed to committing two other armed robberies
on the same night. In deciding that adversary proceedings
for all three offenses commenced with the filing of a com-
plaint on only one, the court specifically noted that the
crimes were closely related in time and therefore part of
a continuous series of criminal activity. In contrast, the
offenses in the instant cause were committed on separate
days and clearly not part of a related series of criminal
activity. We therefore follow the reasoning set forth in
People v. Martin and People v. Earl in concluding that
defendant’s sixth amendment right to counsel was not
violated.
Defendant also contends that since his convictions for
murder and armed violence arose from the same physical
act, the conviction for armed violence must be vacated
under the authority of People v. Donaldson (1982), 91 Ill.
2d 164, 485 N.E.2d 477. We agree with this contention
and therefore vacate his conviction for armed violence.
The State’s request for costs in the amount of $50 under
People v. Nicholls (1978), 71 Ill. 2d 16€, 374 N.E.2d 194
is granted.
Accordingly, the judgment of the circuit court is af-
firmed in part and reversed in part.
Affirmed in part; reversed in part.
McNamara, P.J., MCGILLICUDDY and WHITE, J.J.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.