Opposition Brief — Endell v. Smith
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Supreme Court, U.S.
FILED
Nov § 8%
JOSEPH F. SPAMIOL, JR,
No. 90-395 SE
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990
ROGER V. ENDELL, Commissioner,
Department of Corrections, State of Alaska,
Petitioner,
versus
MICHAEL T. SMITH
Respondent.
On Petition For Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
RESPONDENT'S BRIEF IN OPPOSITION
Peggy A. Roston
PRESTON THORGRIMSON
SHIDLER GATES & ELLIS
420 L Street, Suite 400
Anchorage, Alaska 99501
(907) 276-1969
Counsel for Respondent
BEST AVAILABLE COPY | al
No. 90-395
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990
ROGER V. ENDELL, Commissioner,
Department of Corrections, State of Alaska,
Petitioner,
versus
MICHAEL T. SMITH
Respondent.
On Petition For Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
RESPONDENT'S BRIEF IN OPPOSITION
Peggy A. Roston
PRESTON THORGRIMSON
SHIDLER GATES & ELLIS
420 L Street, Suite 400
Anchorage, Alaska 99501
(907) 276-1969
Counsel for Respondent
i
QUESTIONS PRESENTED
1, 28 U.S.C. § 2254(d) requires a federal court to
presume a state court's fact findings are correct. Does
this presumption apply to a state court's conclusion that
a defendant did not invoke his fifth amendment right to
counsel?
2. In Smith v. Illinois, 469 U.S. 91 (1984) this Court
held an accused's post-request statements cannot be
used to cast doubt on the clarity of an initial request
for counsel. When an accused states he wants an
attorney if law enforcement officers view him as a
suspect, under Smith can a state court rely on the
accused's subsequent statements to conclude he did not
invoke his right to counsel?
3. Assuming, arguendo, a defendant's request for
counsel is ambiguous, can law enforcement officers
continue to discuss the case with the defendant without
fst clarifying whether he wants an attorney?
ii
TABLE OF CONTENTS
Page
I SII 5g bb OS Se esd ee i
fe eee ee eee Vv
a. ec NE eh nd eg eae 2
I ihe nay kg eb ae ak ee 2
Constitutional and Statutory Provisions Involved . 3
UMOOMNONE GE GR GE ww ce tee es +
i I ok eka Oe Tes 4
B. State Court Proceedings .......... 10
C. Federal Court Proceedings ......... 11
1. United States District Court .... 11
2. Ninth Circuit Court of Appeals .. 12
Reasons Why the Petition Should Be Denied ... 13
A. The Cases Relied On By Petitioner
To Show There Is A Conflict Among
The Circuit Courts Are cr :
able From This Case Because They
Involve The Waiver Of Miranda Rights 13
B. Because The Facts Of This Case Are
Substantially Similar To The Facts
Of Smith, Review Of This Case This
Case Ip Unmeceitary. ............ 15
iii
C. The Decision Below Is Consistent
With And Correctly Follows This
Court's Decisions olving The
Fifth Amendment Right To Counsel .. 16
im
Conclusion
Appendix:
28 U.S.C. § 2254 does not
require a federal appellate
court to presume the correct-
ness of the standards applied by
a state court to determine
whether a defendant has invoked
his right to counsel .......... 16
The Ninth Circuit peneses con-
cluded that Smith v. Illinois bars
judicial reliance on statements a
defendant makes after his initial,
albeit conditional, request for
counsel to determine if the request
was ambiguous ............. 19
The Ninth Circuit correctly
determined that even if Smith's
errs was ambiguous, the troopers
violated Smith's amendment
right to counsel by continuing to
discuss the facts of the case with
Smith after they admitted they were
looking at him as a suspect .... 20
Opinion of the Ninth Circuit......... 1-28
iv
Order on Denial of Rehearing
fromm Ge PO COE ww we 29
Opinion of the Alaska Court of Appeals . 31-56
Order from the Supreme Court of Alaska . . 57
U.S. Magistrate's Recommendation Re
Petition for Writ of Habeas Corpus . 59-82
U.S. Magistrate's Supplemental
Recommendation ............. 83-86
Vv
TABLE OF AUTHORITIES
Cases Page
Brewer v. Williams,
SB ae 17
Bryan v. Ward Indiana State Reformatory,
820 F.2d 217 (7th Cir.), cert denied,
ok Se eae 14
Edwards v. Arizona,
i ee ee | ae 12-13, 16
Miller v. Fenton,
oe er ae a 17
Miranda v. Arizona,
Pe 4
Murphy v. Holland,
776 F.2d 470 (4th Cir. 1985),
vacated on other grounds, 475
U.S. 1138 (1986), on remand
845 F.2d 83 (4th Cir. 1988) ........... 14
Smith v. Endell,
860 F.2d 1528 (9th Cir. 1988) .......... 12
Smith v. JIllinois, ‘
469 U.S. 91 (1984)
. i, iii, 11, 12, 13, 15, 18, 19, 20
Terranova v. Kincheloe,
852 F.2d 424 (9th Cir. 1988) ........... 14
United States v. Fouche,
776 F.2d 1398 (9th Cir.
1985), after remand,
833 F.2d 1284 (1987),
cert. denied, 486
Je 4 eer 13, 20
Constitutional Provisi 1s
Unites States Constitution, Amendment V ..... 3
ko 6. ew Oo 68 8 2
OE ree La TA 7
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1990
ROGER V. ENDELL, Commissioner,
Department of Corrections, State of Alaska,
Petitioner,
versus
MICHAEL T. SMITH
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RESPONDENT'S BRIEF IN OPPOSITION
The Respondent, Michael Smith respectfully
requests this court to deny the Petitioner's Petition for
Writ of Certiorari seeking review of the opinion of the
United States Court of Appeals for the Ninth Circuit
entered in this case on November 14, 1988.
2
OPINIONS BELOW
The opinion of the Ninth Circuit is reproduced in
the appendix to this petition; it is also reported at 860
F.2d 1528. The opinion of the U.S. District Court, the
report and recommendation of the U.S. Magistrate, and
the supplemental report and recommendation of the
U.S. Magistrate are reproduced in the appendix.
The opinion of the Alaska Court of Appeals was
not reported. It is reproduced in the appendix. No
opinion was issued by the Alaska Supreme Court. The
supreme court's order denying review is reproduced in
the appendix.
JURISDICTION
This case involves a habeas corpus action filed by
the respondent, Michael T. Smith. The decision of the
Ninth Circuit was issued on November 14, 19838.
Rehearing was denied on June 1, 1990. This Court's
jurisdiction is invoked under 28 U.S.C. § 1254(1).
——
3
" CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution, Amendment V provides
in pertinent part:
No person . . . shall be compelled in any
criminal case to be a witness against himself .
28 U.S.C. § 2254(d) provides:
In any proceeding instituted in a Federal
court by an application for a writ of habeas
corpus by a person in custody pursuant to the
judgment of a State court, a determination
after a hearing on the merits of a factual issue,
made by a State court of competent
jurisdiction in a proceeding to which the
applicant for the writ and the State or an
officer or agent thereof were parties, evidenced
by a written finding, written opinion, or other
reliable and adequate written indicia, shall be
presumed to be correct, unless .. .
4
(8) . . . the Federal court on a
consideration of such part of the record as a
whole concludes that such factual
determination is not fairly supported by the
record[.]
STATEMENT OF THE CASE
This case involves an accused's fifth amendment
right to have counsel present during a custodial
interrogation. In Miranda v. Arizona, 384 U.S. 436
(1966) and its progeny, this Court has vigorously
protected this right from violations by law enforcement
officers. The present case adds little if anything new to
Miranda jurisprudence. In reversing the federal district
court, the Ninth Circuit merely followed this Court's
well-established guidelines in determining whether a
defendant has invoked his right to counsel. Therefore,
this case does not warrant review.
A. The Confession.
Respondent Michael Smith was convicted of the
September 1981 murder of Ron and Darcell Cole.
Smith was initially arrested at the Anchorage Airport by
Anchorage police on October 10, 1981 for possession of
9
5
cocaine. The police read Smith his Miranda rights
which he waived. He asked to speak with someone in
major crimes about recent killings in Anchorage. He
was taken to Alaska State Troopers headquarters.
Smith was interviewed by Troopers Thomas Stearns
and Charles Miller in Stearn’s office. Stearns re-
advised Smith of his Miranda rights. Smith executed a
written waiver of them. -He then proceeded to discuss
his cocaine dealings in Anchorage and his association
with Ron Cole. Smith told the officers he began selling
cocaine, which he obtained from Cole, a few months
prior to the killings. Because of his poor salesmanship,
Smith became indebted to Cole in the amount of
$15,000.00.
The troopers then asked Smith whether he had
killed the Coles. Smith denied any involvement with
the case.
Because the facts bear so heavily in a Miranda
case, the critical portion of the dialogue between Smith
and the troopers is set out below:
STEARNS: Okay. So I take it that you
did not get yourself in a position where you
had to protect yourself, is that a... is that
yes or no?
SMITH: No.
6
STEARNS: Okay, so [you're not saying]
things went bad and you had to protect
yourself? That's out of the question? You
didn't have anything to do with his death.
SMITH: Can I talk to a lawyer? At this
point, I think maybe you're looking at me as
a suspect, and I should talk to a lawyer. Are
you looking at me as a suspect?
MILLER: Well, it... it wouldn't be fair
to you to say we weren't, Mike.
STEARNS: Yeah.
SMITH: Because if you are, it's a serious
charge and I think I should have counsel, if
that's where . . . what you're . . . where you're
coming from, just tell me if you are.
MILLER: Well, Mike, you yourself
pointed out that . . . that anybody that might
be found in that notebook [Ron Cole's list of
drug salesmen] would certainly have reason
enough to kill him.
SMITH: Yeah, I admitted, my name is
probably in it.
STEARNS: And certainly you, . . . you
know, let . . . let's face it, you're a person who
dealt with Ron Cole, and you're a person who
owed him a lot of money. And if you for one
|
7
minute sat down in a room here, after [our]
explaining exactly what our job was and what
we were doing, if you for one minute didn't
picture yourself as a suspect then, okay, then
I would certainly foresee that if you've . . . we
have no choice but to say well, he's . . . he's
told us everything about what the suspect
should look like, and we're sitting here saying,
well you're right, we think that's probably what
the suspect looks like too.
SMITH: Yeah.
STEARNS: Okay. And if you for one
minute think that we don't think the suspect
is someone who is friends with him, someone
who dealt with dope and someone who was in
debt to him, then absolutely, you're correct.
SMITH: Sure.
STEARNS: And we have no choice but
. . . but to eliminate suspects right? I mean,
that's our job.
SMITH: That's fine.
STEARNS: Okay. And that's where
we're coming from.
SMITH: I know, but I'm saying there's
probably a... at least a dozen people like
me that have known him for years and in the
8
same position. They owe him money. They're
friends, and in the same position as I am.
STEARNS: And I don't, you know, I
don't for one minute at all, okay, want to
interrupt your . . . your train of thought or
your needs or you necessities, okay, and we
talked about the rights sheet, you're aware of
them; been advised of your rights at least twice
today, okay.
SMITH: Yes.
STEARNS: And you signed it and you're
aware ... and you're aware that it says on
there any time you feel that you want counsel,
that's it, okay. So, don't misunderstand
[Trooper Miller] and I. You want counsel,
well, by God, don't . . . don't hesitate to get
yourself counsel. You want to talk to us about
Ron Cole's dealings, you want to talk to talk
to us about the murder and suspects, anybody,
we'll talk to you. If you want a lawyer to do
that, then feel free. Okay. I don't think...
I don't think ....
SMITH: I don't know if I need one or
not. That's why I'm trying to make my mind
up, if I need to go that route for myself, you
know.
9
MILLER: All right. Well, you... you
heard what . . . you heard what I said. [..
. you yourself say anybody that would be in
that notebook could be . . . could be a logical
suspect, and you certainly agree, at least with
our line of reasoning, in picturing the kind of
person we have as a suspect, an associate,
somebody that dealt dope and somebody that's
in the notebook and in debt up to his ass.
SMITH: Um'hum.
MILLER: Now, Mike, you've sat here for
the last hour or so and we've . . . we've talked
about your background; you've been pretty
open and honest, at least [from] what we know
about you, okay.
SMITH: Um'hum.
MILLER: Ah, in regards with your
dealings with Ron....
Smith continued to engage in conversation with the
officers. A short time later, Smith confessed that he
had murdered the Coles.
10
B. State Court Proceedings.
Before trial, Smith moved to suppress his
confession on the grounds that it had been obtained in
violation of his fifth amendment right to counsel. The
superior court denied the motion. In doing so, _ it
made the following finding:
THE COURT: Although it is true that
[Smith] discusses with the police, and in a
sense with himself, the fact that he may want
an attorney, it is clear from the context of the
discussion, and the remarks themselves, that
he is simply -- those remarks amount to a
person underscoring the fact that he has a
right to counsel and he knows he has a right
to counsel. He's undecided whether he needs
one, and elects to go forward.
Smith was convicted of two counts of first degree
murder. He appealed to the Alaska Court of Appeals
ee
11
which affirmed the superior court's denial of the motion
to suppress.’ Appendix at 41.
C. Federal Court Proceedings.
1. United States District Court.
Smith filed a petition for writ of habeas corpus in
the U.S. District Court for the District of Alaska on the
grounds that his confession had been obtained in
violation of his fifth amendment right to counsel. The
magistrate assigned to the case recommended that the
petition be denied. Appendix at 59-82. The district
court adopted this recommendation. /d. at 87-88.
In making the recommendation to deny the
petition, the magistrate rejected the State's argument
that 28 U.S.C. § 2254 required him to presume the
correctness of the superior court's conclusion that Smith
had not invoked his right to counsel. It found the issue
of invoking or waiving the right to counsel is a mixed
question of fact and law. The magistrate concluded,
1 The superior court ruled Smith waived his right
to counsel. The Court of Appeals affirmed this ruling.
However, if Smith had never invoked his right to
counsel in the first place, the question of waiver would
not even arise. See Smith v. Illinois, 469 U.S. 91 (1984).
12
however, based on his independent review of the record
that Smith did not unambiguously invoke his right to
counsel. Although he concluded the troopers acted
within constitutional limits during the portion of the
interview which occurred after they acknowledged they
were looking at Smith as a suspect, he noted the
troopers could have focused more directly on
determining Smith's intent. /d at 80.
2. Ninth Circuit Court of Appeals.
Smith appealed the order of the district court
denying his petition for writ of habeas corpus to the
Ninth Circuit. On November 14, 1988 the Ninth Circuit
reversed the district court's decision. Appendix at 1-28.
The majority held that Smith invoked his right to
counsel. It found that the federal and Alaska courts
had reached a contrary conclusion only by relying on
Smith's post-request statements. It noted, however, that
consideration of these statements is barred by Smith v.
Illinois, 469 U.S. 91 (1984). Smith v. Endell, 860 F.2d
1528, 1532 n. 3 (9th Cir. 1988); Appendix at 1-28. It
further found that even if Smith's request for an
attorney was ambiguous, the troopers did not limit their
subsequent communications with Smith to clarification
of his request for counsel as required by Edwards v.
13
Arizona, 451 U.S. 477 (1981) and United States v.
Fouche, 776 F.2d 1398 (9th Cir. 1985), after remand, 833
F.2d 1284 (1987), cert. denied, 486 U.S. 1017 (1988).
Therefore, it concluded Smith's motion to suppress
should have been granted.
REASONS WHY THE PETITION
SHOULD BE DENIED
A. The Cases Relied On By Petitioner To Show
There Is A Conflict Among The Circuit Courts Are
Distinguishable From This Case Because They Involve
The Waiver Of Miranda Rights.
Under 28 U.S.C. § 2254(d), the federal courts are
required to presume the correctness of state court's
factual findings in a proceeding to which a petitioner
for writ of habeas corpus is a party. Petitioner suggests
that there is a conflict among the circuits over the
application of § 2254 and invites this Court to resolve
this conflict by granting review of this case. However,
the cases Petitioner has relied on are distinguishable
from the present case.
At issue in this case is whether Smith invoked his
fifth amendment right to counsel. As this court
suggested in Smith v. Illinois, 469 U.S. 91 (1984), this
)
14
issue is separate and distinct from the issue of waiver.
The Ninth Circuit concluded that the magistrate and
Alaska courts applied the wrong test to decide Smith
had not invoked his right to counsel. It made no ruling
on the issue of whether Smith waived his right to
counsel.
The cases Petitioner relies on to support its
Petition such as Terranova v. Kincheloe, 852 F.2d 424
(9th Cir. 1988), Bryan v. Ward Indiana State Reformatory,
820 F.2d 217 (7th Cir.), cert. denied, 484 U.S. 867
(1987) and Murphy v. Holland, 776 F.2d 470, 482 (4th
Cir. 1985), vacated on other grounds, 475 U.S. 1138
(1986), on remand 845 F.2d 83 (4th Cir. 1988), involved
the voluntariness of a Miranda waiver. These cases did
not uniformly treat the waiver issue as a question of
law. However, this is not the case to resolve this lack
of uniformity because this case concerns whether Smith
invoked his right to counsel and not whether he
voluntarily waived this right. Therefore, review should
be denied.
15
B. Because The Facts Of This Case Are
Substantially Similar To The Facts Of Smith, Review Of
This Case Is Unnecessary.
The facts in this case are quite similar to the facts
in Smith v. Ilinois, 469 U.S. 91 (1984). In Smith, police
detectives informed Steven Smith of his right to counsel.
He was asked if he understood what he was told. He
stated "Uh, yeah, I'd like to do that." Smith, at 93 (italics
in original). Smith was asked a few more questions.
He was then asked whether he wanted to talk without
the presence of a lawyer. He stated "Yeah and no, uh,
I don't know what's what, really.” Id.
In the present case, Michael Smith's request for
counsel was conditioned on whether the troopers were
looking him as a suspect. He stated "Because if you
are, it's a serious charge and I think I should have
counsel. ..." Rather than directly responding to Smith,
the troopers began to lay out the facts for Smith. They
then questioned him again about whether he wanted a
lawyer. He stated "I don't know if I need one or not.
That's why I'm trying to make my mind up, if I need to
go that route for myself, you know.” 860 F.2d at 1530.
In both cases the defendants indicated they wanted
an attorney. In both cases the dialogue continued. The
defendants then made remarks which suggested they
16
were indecisive about wanting counsel. If anything,
Michael Smith's request for counsel was more clearly
stated than Steven Smith's request.
Thus, this case does not differ substantially from
Smith. Because this Court has already addressed the
fact pattern common to both cases, review of the
decision below is unnecessary.
C. The Decision Below Is Consistent With And
Correctly Follows This Court's Decisions Involving The
Fifth Amendment Right To Counsel.
The Ninth Circuit's holding establishes no new
principle of law. In fact, the court noted "[t)he
governing law is clear." /d. at 1529. The decision
below neither expands nor contracts the prophylactic
rule established in Miranda and Edwards. As discussed
below, it merely applies well-accepted principles to a
fact pattern already addressed by this court. Therefore,
review is not warranted.
1. 28 U.S.C. § 2254 does not require a
federal appellate court to presume the correctness of
the standards applied by a state court to determine
whether a defendant has invoked his right to counsel.
17
This Court has indicated that in a case involving a
voluntary waiver issue the presumption found in 28
U.S.C. § 2254(d) applies to such questions as the events
surrounding the interrogation, the defendant's experience
with the justice system and his familiarity with Miranda.
Miller v. Fenton, 474 U.S. 104, 117 (1983). However,
this Court has noted:
Such underlying factual issues have been
resolved, and the moment comes for
determining whether, under the totality of the
circumstances, the confession was obtained in
a manner consistent with the Constitution, the
State court judge is not in an appreciably
better position than the federal habeas court
to make that determination.
474 U.S. at 117. See also Brewer v. Williams, 430 U.S.
387 (1977).
The present case did not involve historical or
subsidiary factual issues. The Ninth Circuit concluded
there was no factual dispute over what happened during
the troopers’ interview with Smith. It stated “the
constitutional effect of the dialogue is a legal question
subject to our independent review." Smith, 860 F.2d at
1532 n. 3. Further, the Ninth Circuit found the state
18
court applied an inappropriate legal standard to decide
if Smith had invoked his right to counsel:
Moreover, the superior court's conclusion that
Smith ultimately elected to go forward without
an attorney rested upon statements made by
Smith as a result of continued interrogation
following his initial request for counsel. But
consideration of these subsequent statements is
barred by Smith v. Illinois 469 U.S. at 97-99.
Id. at 1532 n. 3. Thus, the Court did not fail to apply
§ 2254(d) to the state court's fact findings. Rather, it
found the state court's reliance on statements made by
Smith after his conditional request for counsel was
incorrect as a matter of law under Smith. Thus, the
constitutional issues on which the Ninth Circuit ruled
fall outside the ambit of § 2254.
Ke
19
2. The Ninth Circuit properly concluded that
Smith v. Illinois bars judicial reliance on statements a
defendant makes after his initial, albeit conditional,
request for counsel to determine if the request was
ambiguous.
Under Miranda before a suspect can be subjected
to a custodial interrogation, he must be advised of his
right to counsel. Smith v. Illinois, 469 U.S. 91, 100
(1984) held that a court cannot rely on statements made
by am accused after he requests counsel to "cast
retrospective doubts on the clarity of the initial request
itself. Such subsequent statements are relevant only to
the distinct question of waiver."
In the present case, the Alaska courts relied on the
entire interview and viewed it in context to decide
whether Smith invoked his right to an attorney. In its
opinion, the Court of Appeals stated:
Judge Ripley concluded that Smith's remarks
about an attorney, viewed in context, simply
indicated that Smith was aware that he had a
right to counsel. ... We note that when Smtih
first brought up the question of whether he
should talk to a lawyer, he wanted to know if
he was a suspect. Smith asked the troopers
a
iam
20
whether he was a suspect and Trooper Sterns
answered by telling Smith that he was a
suspect. Sterns also reminded Smith of his
right to an attorney at that point, and gestured
towards a telephone. . . . Smith then indicated
that he was trying to decide whether to contact
an attorney, but continued with the interview.
Under these circumstances, Judge Ripley could
properly conclude that Smith never invoked his
right to an attorney... .
App. 41. Thus, it is clear that the Alaska courts, and
the magistrate as well, did not follow the standards set
out in Smith v. Illinois, 469 U.S. 91 (1984). Therefore,
the Ninth Circuit properly reversed the decision below.
3. The Ninth Circuit correctly determined
that even if Smith's request was ambiguous, the
troopers violated Smith's fifth amendment right to
counsel by continuing to discuss the facts of the case
with Smith after they admitted they were looking at
him as a suspect.
In United States v. Fouche, 776 F.2d 1398 (9th Cir.
1985), after remand, 833 F.2d 1284 (1987), cert. denied,
486 U.S. 1017 (9th Cir. 1988), the Ninth Circuit held
|
21
that if an accused makes an equivocal request for
counsel, law enforcement officers must cease all
interrogation but can ask questions to clarify the
accused's request.
In the present case, the troopers went beyond
clarification. They began to talk about the evidence
they obtained which would implicate Smith and did not
simply ask Smith whether he wanted an attorney.
Therefore, the Ninth Circuit properly ruled the troopers
violated Smith's right to counsel.
CONCLUSION
For the foregoing reasons, the Petition for Writ of
Certiorari should be denied.
Respectfully submitted,
Peggy A. Roston
PRESTON THORGRIMSON
SHIDLER GATES & ELLIS
420 L Street, Suite 400
Anchorage, Alaska 99501
(907) 276-1969
Counsel for Respondent
October 30, 1990
iii ie elle
APPENDIX
Opinion of the Ninth Circuit
Order on Denial of Rehearing
from the Ninth Circuit
Opinion of the Alaska Court of Appeals
Order from the Supreme Court of Alaska
U.S. Magistrate’s Recomm idation Re
Petition for Writ of Habeas Corpus
U.S. Magistrate’s Supplemental
Recommendation
Order from the U.S. District Court
83-86
87-88
App. 1
Michael T. Smith
Petitioner-Appellant,
v.
Roger V. ENDELL, Commissioner of
the Department of Corrections, State
of Alaska, Respondent-Appellee.
No. 86-4357
United States Court of Appeals,
Ninth Circuit
Argued and Submitted Feb. 1, 1988.
Decided Nov. 14, 1988.
Defendant convicted of murder petitioned for
writ of habeas corpus. The United States District Court -
for the District of Alaska, H. Russell Holland, J., dis-
missed petition, and appeal was taken. The Court of
Appeals, James R. Browning, Circuit Judge, held that
murder defendant’s request for counsel, conditioned upon
whether interrogating officers considered him to be a
suspect, was unambiguous and thus officers, who con-
sidered defendant to be a suspect, should have ceased
interrogating him until attorney was present.
Reversed.
O’Scanniain, Circuit Judge, dissented and filed
opinion.
Peggy A. Roston, Bankston, McCollum &
Fossey, Anchorage, Alaska, for petitioner-appellant. .
W. H. Hawley, Asst. Atty. Gen., Office of
Special Prosecutions and Appeals, Anchorage, Alaska, for
respondent-appellee.
Appeal from the United States District Court for
App. 2
the District of Alaska.
Before BROWNING, NORRIS and
O’SCANNLAIN, Circuit Judges.
JAMES R. BROWNING, Circuit Judge:
Smith was convicted in the Superior Court of
the State of Alaska for the murder of Ron and Darcelle
Cole. He appealed to the Alaska Court of Appeals
asserting, among other claims, that the Superior Court
failed, in violation of rules established in Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), to suppress a confession obtained in the absence
of counsel through in-custody, police-initiated interroga-
tion after Smith had requested an attorney. The Alaska
Court of Appeals affirmed; the Supreme Court of Alaska
denied review. The United States District Court for the
District of Alaska dismissed Smith’s petition for habeas
corpus. This appeal followed.
I
[1] The governing law is clear. Under Miranda
a person in custody must be informed prior to interroga-
tion that he has a right to remain silent and to have a
lawyer present. Miranda v. Arizona, 384 U.S. at 479, 86
S.Ct. at 1630. If he requests counsel, interrogation must
cease until an attorney is available. Jd. it 474, 86 S.Ct.
at 1628. Not only must all questioning stop when a
suspect expresses his desire for counsel, but questioning
can be resumed without a lawyer only if the suspect
Rianne
App. 3
himself initiates further communication - waiver cannot
be found from a suspect’s continued response to ques-
tions, even if he is again advised of his rights. Edwards
v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-
85, 68 L.Ed.2d 378 (1981).
[2-4] Requests for counsel are to be given
broad effect even when less than all-inclusive.
Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 832,
93 L.Ed.2d 920 (1987). A suspect’s responses to further
questioning cannot be used to cast doubt upon the
adequacy of his initial request. Smith v. Illinois, 469 U.S.
91, 97-99, 105 S.Ct. 490, 493-94, 83 L.Ed.2d 488 (1984)
(per curiam). When the initial request is ambiguous or
equivocal, all questioning must cease, except inquiry
strictly limited to clarifying the request. United States v.
Fouche, 776 F.2d 1398, 1405 (9th Cir. 1985), after
remand, 833 F.2d 1284, 1287 (1987); United States v.
Nordling, 804 F.2d 1466, 1470 (9th Cir. 1986).
The facts are undisputed. Smith was arrested
for possession of cocaine and questioned by state
troopers. The troopers advised Smith of his Miranda
rights. Smith waived them. He discussed the drug
charges with the troopers for approximately an hour,
admitting he had been distributing cocaine, Ron Cole
was his supplier, he owed Cole $15,000, and Cole
maintained a list of persons who owed him for cocaine,
one of whom was Smith. The trooper asked Smith if he
shot Cole. Smith denied it. The trooper pressed the
point. Smith’s initial request for counsel followed:
App. 4
Smith: Can I talk to a lawyer? At
this point, I think maybe you’re looking
at me as a suspect, and I should talk to
a lawyer. Are you looking at me as a
suspect?
Trooper: Well, it... it wouldn’t
be fair to you to say that we weren’t
Mike.
2nd Trooper: Yeah.
Smith: Because if you are, it’s...
it’s a serious charge and I think I
should have counsel, if that’s where .. .
what you're ... where you're coming
from, just tell me if you are.
The troopers reminded Smith he himself had
pointed out that anyone in Cole’s list of debtors who
owed him money for drugs "would certainly have reason
enough to kill him," to which Smith responded, "Yeah.
I admitted my name is probably in it.". The troopers
then said:
[L]et’s face it, you’re a person who
dealt with Ron Cole, and you're a
person who owed him a lot of money.
The troopers added that if Smith still did not regard
himself as a suspect:
[W]e have no choice but to say well,
———
App. 5
he’s ... he’s told us everything about
what the suspect should look like, and
we're sitting here saying, well
you're .. . you're right, we think that’s
probably what the suspect looks like
too.
Smith responded, "Yeah," after which the trooper again
repeated the evidence against Smith:
Okay. And if you for one minute you
think that we don’t think the suspect is
someone who is friends with him, some-
one who dealt with dope and someone
who was in debt to him, then abso-
lutely, you’re correct.
Smith reacted by pointing out that others were
equally suspect:
I know, but I’m saying there’s probably
a... at least a dozen people like me
that have known him for years and in
the same position. They owe him
money. They’re friends [ ] in the same
position as I am.
The troopers responded by reminding Smith he
had been advised of his right to counsel and if he
wanted counsel he should not hesitate to get one, but if
"[y]ou want to talk to us about Ron Cole’s dealings, you
want to talk about the murder and suspects, anybody,
will talk with you."
tee rnenneineniil
App. 6
Smith then made his second statement regarding
representation by counsel, saying: "I don’t know if I
need one or not. That’s why I’m trying to make my
mind up, if I need to go that route for myself, you
know.”
A trooper responded with still another recitation
of the circumstances connecting Smith with the murder:
Alright... Well, you... you heard
what .. . you heard what I said. |...
you yourself say anybody that would be
in that notebook could be . . . could be
logical suspect, and you certainly agree,
at least with our line of reasoning, in
picturing the kind of person we have as
a suspect, an associate, somebody that
dealt dope and somebody that’s in [the]
notebook and in debt up to his ass.
This part of the interview concluded:
SMITH: Um’hum.
TROOPER: Now, Mike, you've sit
here for the last hour or so and
we've... we've talked about your
background; you’ve been pretty open
and honest at least what we know
about you, okay.
SMITH: Um’hum.
TROOPER: Ah, in regards with your
App. 7
dealings with Ron...
At this point, the troopers shut off the tape re-
corder for approximately twenty-one minutes to "get
some coffee." While the tape was off, Smith confessed
to the murders. The troopers then turned the recorder
back on, and Smith repeated his confession.
The Superior Court denied Smith’s motion to
suppress, holding that in his two references to a lawyer
Smith was merely “underscoring the fact that he has a
right to counsel .... He’s undecided whether he needs
one and elects to go forward.". The Alaska Court of
Appeals affirmed, stating Smith’s first reference to
having an attorney "simply indicated Smith was aware
that he had a right to counsel;" and his second reference
"indicat{ed] he was trying to decide whether to contact
an attorney, but continued with the interviews."
The United States Magistrate recommended
denial of Smith’s petition for habeas corpus. The magis-
trate recognized that Smith v. Illinois barred use of
Smith’s second reference to counsel to cast doubt upon
his initial request, and said it was not clear whether in
evaluating Smith’s request for counsel the Alaska Courts
had relied upon both statements. The magistrate char-
acterized Smith’s first statement as a conditional request
for counsel. "A statement of conditional intent,” the
magistrate said, "is an ambiguous statement, at least in
the context of this dialogue,” thus bringing into play the
doctrine that only questions designed to clarify whether
the subject desires an attorney were permissible.
i App. 8
"Where a suspect’s desires are expressed in an equivocal
fashion,” the magistrate continued, "it is permissible for
the questioning officer to make further inquiry to clarify
the suspect’s wishes.”
The magistrate characterized the wenpen’
response to Smith’s initial request as consisting of
“statements as to the focus of their investigation and
then to Smith’s right to counsel.” The magistrate con-
cluded, "Their statements did not embrace the form of
further interrogation. Informing Smith of the available
evidence against him in response to his question as to
whether he was a suspect did not fall within the realm
of interrogation.”
The magistrate recognized that the investigators
“might have focused more directly on Smith’s equivoca-
tions as to whether he sought to invoke his right to
counsel. However, their brief continuation of their
discussion of the type of person they considered as a
suspect was not error of constitutional dimension," and
"did not exceed the permissible boundary of the ‘equi-
vocalness excepticn.” In a Supplemental Report, the
magistrate reiterated that the investigators "did not act
improperly by addressing the ambiguity of whether or
not Smith was a suspect as well as reminding Smith of
the previous advisement of rights that he received from
the Investigator since this questioning was directed
toward clarifying Smith’s desire for counsel."
The district court stated it had reviewed the
magistrate’s report, was “satisfied that Petitioner's con-
‘
ren nti
App. 9
stitutional right to counsel was not effectively invoked,
and therefore the questioning which preceded and led to
his confession was permissible." The court adopted the
magistrate’s recommendation and dismissed the petition.
II
We believe the magistrate’s analysis underlying
the district court’s order was flawed in two critical
respects. First, Smith’s initial request for counsel was
not equivocal or ambiguous. It was conditional, but the
investigators knew the condition to be satisfied.
Communication with Smith with respect to the matter
under investigation therefore should have ceased until an
attorney was present. Second, even if Smith’s initial
request was unclear, the interrogator’s response was
inappropriate because it was not designed to clarify the
request. On either hypothesis, the confession must be
suppressed.
A
Smith's initial request was clear enough: if the
troopers regarded him as a suspect in the murder of
Ron and Darcelle Cole, he wanted an attorney. The .
request was not ambiguous; Smith was uncertain whether
the troopers considered him a suspect, but if they did,
his intent was clear: "I should talk to a lawyer.” In this
respect his statement was not equivocal; there was no
App. 10
"might" or "maybe" or "perhaps."
[5] We agree with the magistrate that Smith’s
request was conditional; it was not to be operative unless
the troopers suspected Smith of the murders; if they did,
however, Smith wanted counsel. The troopers could not
have mistaken Smith’s meaning.? Since they knew him
to be a suspect, questioning should have stopped until
an attorney was present, unless Smith himself initiated its
renewal.
Smith’s repetition of his inquiry as to whether
he was a suspect by asking the troopers "where you're
coming from" was not an initiation of a new exchange.
The question was a continuation of a dialogue that had
not been terminated. See Christopher v. Florida, 824
F.2d 836, 845 (11th Cir. 1987).
It is also irrelevant that Smith was advised of
his right to counsel both before and after he asked for
an attorney or that the interrogation was conducted
without coercion. See Arizona v. Roberson, _ US. ___,
108 S.Ct. 2093, 2100, 100 L.Ed.2d 704 (1988); Smith v.
Illinois, 469 U.S. at 99 n.8, 105 S.Ct. at 495, n.8; Edwards
v. Arizona, 451 U.S. at 484-85, 101 S.Ct. at 1884-85. The
Supreme Court has repeatedly emphasized that the
Edwards rule is a "rigid," "bright line," "per se" rule.‘
The conduct it prohibits is not wrongful in itself. The
purpose of the rule is wholly prophylactic: “By prohibit-
ing further interrogation after the invocation of these
rights, we erect an auxiliary barrier against police coer-
cion." Barrett, 107 S.Ct. at 832.5
App. 11
B
[6] Even if Smith’s request were regarded as in
some way ambiguous or equivocal, the troopers did not
respond by limiting their inquiry to clarifying Smith’s
desire for counsel. They did not give Smith a direct
answer to the simple question he asked: whether he
was a suspect. Instead they used his question as an
occasion for repeatedly cataloguing the evidence connect-
ing him with the murders.
The resulting drawn-out dialogue was wholly
unnecessary to the only proper purpose of further ques-
tioning: the clarification of Smith’s imtial statement that
if he was a suspect he wanted counsel. Smith asked
only whether he was a suspect, not wiy he was a suspect.
The repeated recitations of the circumstances tying
Smith to the murders did nothing to clarify Smith's
desire for counsel. It was a powerful -- though subtle --
inducement for him to confess. See United States v.
Johnson, 812 F.2d 1329, 1331 (11th Cir. 1986).
The prophylactic rule established in Miranda
and Edwards was intended to preclude precisely the kind
of technique employed by the troopers in this case to
induce Smith to forego his initially expressed desire for
counsel and incriminate himself. Questioning after an
ambiguous or equivocal request for counsel "is to be
limited to... clarification and cannot be used as a
means of eliciting any incriminating statements from the
App. 12
suspect relating to the subject matter of the interroga-
tion." United States v. Cherry, 733 F.2d 1124, 1130 (Sth
Cir. 1984) (citation omitted); Fouche, 776 F.2d at 1405.
As the Supreme Court said in Smith v. Illinois: “In the
absence of such a bright-line prohibition, the authorities
through "badgerfing]’ or ‘overreaching’ - explicit or
subtle, deliberate or unintentional - might otherwise
wear down the accused and persuade him to incriminate
himself notwithstanding his earlier request for counsel’s
assistance.” 469 U.S. at 98, 105 S.Ct. at 494 (citations
omitted).
The State concedes that an equivocal request
for counsel permits the police only to ask the suspect
questions that seek to clarify and precludes the police
from supplying information to a suspect as a strategy to
elicit incriminating statements. The State argues, how-
ever, that this rule does not apply when the suspect asks
whether he is a suspect and appears to desire this
information to assist him in deciding whether to invoke
his right to counsel.’ As we have noted, however,
"Questions aimed at clarifying the desire for counsel
must be strictly limited to that purpose." Fouche, 776
F.2d at 1405. The proper response in this case was
simply to inform Smith he was a suspect.’ Certainly
nothing more was required to "clarify" the request, and
therefore nothing more was allowed under Edwards and
Fouche.
Although agreeing that Smith’s request was
conditional and the condition had been satisfied, the
oe oe
App. 13
magistrate upheld the continuing dialogue between the
troopers and Smith, on the ground the exchange was not
"interrogation." The Edwards prophylactic rule applies
to the initiation of any "communication, exchanges, or
conversations.” 451 U.S. at 485, 101 S.Ct. at 1885, see
also Bradshaw, 462 U.S. at 1044-45, 103 S.Ct. at 2834-35.
The police "may not ask questions or make statements
which ‘open up a more generalized discussion relating
directly or indirectly to the investigation,’ as this con-
stitutes interrogation." Christopher v. Florida, 824 F.2d
836, 845 (11th Cir. 1987) (quoting Bradshaw, 462 USS. at
. 1045, 103 S.Ct. at 2835). :
The State argues that Smith’s post-request
"failure to respond to the [troopers’] offer to use the
telephone together with the fact that he resumed ans-
wering questions adequately clarified Smith’s position."
Acceptance of this argument would defeat the require-
ment that post-request interrogation be limited to clarifi-
cation of the initial request, and that waiver may not be
based upon a suspect’s response to continued interroga-
tion. See also United States v. Ledezma-Hernandez, 729
F.2d 310, 312 (Sth Cir. 1984).
Because this requirement was violated, the state-
ment obtained from Smith should have been suppressed.
REVERSED.
O’SCANNLAIN, Circuit Judge, dissenting:
As I read the record in this case, defendant
Smith never invoked his right to counsel after having
been given unrestricted opportunity to do so. At most
Cs ee
i ,
App. 14
he was "thinking out loud” while making up his mind in
a clearly non-coercive situation. In the Miranda-
Edwards-Fouche I-Fouche II context, I would summarize
the record as comprising an initial Miranda waiver as the
interrogation begins, a later ambiguous request for
counsel followed by clarifying questions, after which it
becomes clear that defendant never did invoke his right
to counsel. Therefore, I must dissent from the majority’s
decision to require suppression of the confession. I
would concur in the four preceding court decisions (two
Alaska state courts, a federal magistrate, and a federal
district judge), which found no constitutional bar to the
admissibility of Smith’s confession.
The key issue is, of course, whether Smith’s
statements were sufficient, as a matter of constitutional
law, to invoke his right to counsel. If Smith had stopped
after "Can I talk to a lawyer?," he would have invoked
unambiguously his fifth and fourteenth amendment rights
and no doubt the Alaska troopers, following Miranda
and Edwards, would have answered affirmatively and
shown him the telephone as indeed they did in this case.
In any event, "can I talk to a lawyer?" standing alone,
would have been an unambiguous request for counsel.
The problem is that Smith did not stop there.
He went on to say, without interruption, that he was
only interested in talking to a lawyer if the police were
looking at him as a suspect, whereupon he asked the
question, "Are you looking at me as a suspect?" A\l-
though the majority feels otherwise, I find the trooper’s
App. 15
answer to that question to be responsive and com-
prehensible: "Well, it... it wouldn’t be fair to you to
say that we weren’t Mike." Of course Smith was a
murder suspect and Trooper Stearns told him so.
The troopers then began to clanfy whether
Smith, having received confirmation he was indeed a
suspect, wanted to go on to invoke his right to counsel,
as the following excerpt from the interrogation transcript
makes clear.
STEARNS: And you signed [the rights
sheet] and you’re aware . . . and you're
aware that it says on there any time
you feel that you want counsel, that’s it,
okay. So, don’t misunderstand Chuck
and I. You want counsel, well... by
God don’t... don’t hesitate to get
yourself counsel. You want to talk to
us about Ron Cole’s dealings, you want -
to talk to us about the murder and
suspects, anybody, will [sic] talk to you.
If you want a lawyer to do that, then
feel free [gesturing to a nearby tele-
phone].
These police statements were well within the
clarification process because they were in response to
Smith’s own questions.2 The majority attaches great
significance to the troopers’ explaining to Smith why he
was a suspect, which it deems impermissible because it
found a purpose to elicit incriminating statements in
violation of the standard we established in Fouche J, 776
App. 16
F.2d at 1405 ("Questions aimed at clarifying the desire
for counsel must be strictly limited to that purpose; they
may not be used to elicit incriminating information").
While the Fouche J standard is strict by its very terms, I
do not believe it was intended to be used as a mechan-
ism to pick apart every word that a police officer might
utter during the course of an interrogation. Indeed, the
actions of the troopers are at least as solicitous concern-
ing the suspect’s right to counsel, if not more so, as
those of the FBI agent which we held to be proper in
Fouche II. See also United States v. Nordling, 804 F.2d
1466, 1470-71 (9th Cir. 1986). Even the majority con-
cedes that the interrogation was conducted without the
slightest trace of coercion.* Majority opinion at 1531.
In the clarification process, it became obvious
that Smith did not intend to invoke his right to an
attorney. Having been offered the telephone to call his
lawyer, Smith chose instead to renew the dialogue.
Indeed, Smith stated shortly before his confession, and
long after having been told he was a suspect: "I don’t
know if I need [an attorney] or not. That’s why I’m
trying to make my mind up, if I need to go that route
for myself, you know."
Certainly, if Smith’s initial statements had been
unequivocal, then I would not look beyond them in
determining that he had properly invoked his right to
counsel. Smith v. Illinois, 469 U.S. at 92, 105 S.Ct. at
491. But Smith’s initial statements do not rise to the
level of an unambiguous request, and therefore the
App. 17 -
Smith v. Illinois rule does not apply. See Grooms v.
Keeney, 826 F.2d 883, 887 (9th Cir. 1987) (court stating
that "[t]he Smith rule does not apply here, because it
concerned an unequivocal request for counsel, and there
is nO persuasive reason to extend or invert its rule to fit
the facts of this case") (citation omitted).
Smith’s latter statements merely show that he
had no iptention of unambiguously invoking his right to
counsel before continuing to answer questions. In
Fouche II, we did not require in the clarification process
that the suspect affirmatively state that he would con-
tinue without a lawyer present. Rather, simply enough,
we evaluated whether Fouche invoked his right to
counsel. See Fouche I], 833 F.2d at 1287 ("Fouche
voluntarily declined to invoke his right to counsel,
choosing instead to answer [the agent’s] questions.").
Nothing in Edwards or its progeny mandates a
reversal in this case. Smith made an ambiguous inquiry
about right to counsel, to which the troopers responded
properly by seeking to clarify Smith’s true intentions. In
so doing, the troopers did not stray from the limits we
laid down in Fouche J. I am aware of no Supreme
Court or Ninth Circuit precedent which freezes police in
their tracks after the defendant says, "I’m trying to make
my mind up” in this context. I am concerned that the .
majority’s analysis unnecessarily complicates this area of
the law. I fear that the majority’s holding does not
accomplish what in large measure it sets out to do, Le.,
provide a bright line for all concerned parties to follow.
a
App. 18
In fact, I think it may likely have the opposite effect.
The analysis essentially injects a new concept into the
fifth-fourteenth amendment lexicon: "conditional un-
equivocal request for counsel.” In so doing, it confuses
and diverts attention from whether right to counsel has
been invoked. It also carries with it a potentially thorny
new analytical requirement, ie., whether a "condition"
laid down by the suspect is satisfied.°
Even if my fears that the majority’s "bright line"
will become blurred are unjustified, [ am concerned that
it loses sight of the policy underlying that line. Until
now, we have sought to maintain a delicate balance
between ensuring that suspects are properly insulated
against police overreaching while allowing the law en-
forcement community to perform its duties effectively.’
Perhaps the majority’s new "bright line” is only
an accretion from the old. But one only has to look
back less than a decade to the facts of Edwards (which
extended Miranda) and compare them to the present
case to see how accretion becomes avulsion. The
Edwards Court was presented with detectives who went
to the jail where defendant was being held to badger
him into talking after he had unequivocally invoked both
his right to counsel and his right to remain silent; the
Court quite properly drew a line beyond which the
police could not go and required suppression of the
confession. Here, we delegate to a knowledgeable
defendant during a Miranda-waived interrogation at
trooper headquarters the right to lay down to police the
App. 19
conditions upon which his interrogation may or may not
proceed. We have come a long way since Miranda and
Edwards -- too far, too fast, in my view.
FOOTNOTES
1. We disagree with the dissent’s view that "Smith’s
statements evince no more than an ambiguous or
equivocal! assertion of the right to counsel." Dissent at
1534 n.1. The dissent concedes, as it must, that Smith
made clear he was "interested in talking to a lawyer if
the police were looking at him as a suspect.” /d. at
1534. It is difficult to regard Smith’s statement as
ambiguous and equivocal when the statement "I do want
an attorney before it goes very much further" is not. See
Oregon v. Bradshaw, 462 U.S. 1039, 1041-42, 103 S.Ct.
2830, 2832-33, 77 L.Ed.2d 405 (1983) (plurality opinion).
2. If there were any doubt whether Smith invoked
his right to counsel his request should have been broadly
construed and the uncertainty resolved in favor of in-
vocation, of the right. Barrett, 107 S.Ct. at 832; Michigan
v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1409, 89
L.Ed.2d 631 (1986); Grooms v. Kenney, 826 F.2d 883,
886 (9th Cir. 1987); United States ex rel. Espinoza v.
Fairman, 813 F.2d 117, 122-23 (7th Cir. 1987); Wilson v.
Murray, 806 F.2d 1232, 1235 (4th Cir. 1986); McGee v.
Housewright, 689 F.2d 797, 801 (8th Cir. 1982).
Faced with an ambiguous or equivocal request, the
"settled approach to questions of waiver requires us to
give a broad, rather than a narrow, interpretation to a
defendant’s request for counsel.” Jackson, 475 U.S. at
es
App. 20
633, 106 S.Ct. at 1409. Doubts must be resolved in
favor of protecting the constitutional claim." Jd. It is
only when this broad interpretation fails to clarify the
request that further questioning directed solely toward
resolving the ambiguity is permitted. ,
3. The State argues that we are required by 28
U.S.C. § 2254(d) to regard as presumptively correct the
state court findings "that Smith was ’merely underscor-
ing" the fact that he had a right to coynsel, that he knew
he had a mght to counsel, and that he ultimately elected
to go forward without counsel." As the district court
concluded, the state court’s characterization of Smith’s
words is hardly a finding of fact. There is no dispute
that Smith knew he had a right to counsel, nor is there
any factual dispute as to what happened. The constitu-
tional effect of the dialogue is a legal question subject to
our independent review. Cf. Miller v. Fenton, 474 US.
104, 112, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985);
United States v. Crespo de Llano, 838 F.2d 1006, 1015 &
n.2 (9th Cir. 1988); Grooms v. Kenney, 826 F.2d at 885.
Moreover, the superior court’s conclusion that
Smith ultimately elected to go forward without an attor-
ney rested upon statements made by Smith as a result of
continued interrogation following his initial request for
counsel. But consideration of these subsequent state-
ments is barred by Smith v. Illinois, 469 U.S. at 97-99,
105 S.Ct. at 493-95. As the Supreme Court explained,
"Using an accused’s subsequent responses to cast doubt
on the adequacy of the initial request itself is even more
intolerable. ‘No authority, and no logic, permits the
interrogator to proceed . . . on his own terms and as if
the defendant had requested nothing, in the hope that
TT
App. 21
the defendant might be induced to say something casting
retrospective doubt on his initial statement that he
wished to speak through an attorney or not at all.” Jd.
at 98-99, 105 S.Ct. at 494 (citation omitted).
Although in this case the magistrate was aware of
the rule of Smith v. Illinois, he nonetheless relied upon
Smith’s later statement that he was uncertain whether he
needed counsel to support the magistrate’s conclusion
that Smith did not sufficiently invoke the right to coun-
sel. The dissent reflects the same error. Dissent at
1536 ("Smith’s latter statements merely show that he had
no intention of unambiguously invoking his right to
counsel .... )
4. See Arizona v. Roberson, 108 S.Ct. at 2098;
Michigan v. Jackson, 475 U.S. at 634, 106 S.Ct. at 1408;
Smith v. Illinois, 469 U.S. at 98, 105 S.Ct. at 494; Solem
v. Stumes, 465 U.S. 638, 646-48, 104 S.Ct. 1338, 1343-44,
79 L.Ed.2d 579 (1984); Oregon v. Bradshaw, 462 USS. at
1044, 103 S.Ct. at 2834.
5. Contrary to the dissent, the holding in this case
neither draws new lines nor creates new categories. Cf.
Dissent at 1536-1537 & n.5. Rather, it declines to create
an exception to Miranda and Edwards allowing police to
ignore clear and unequivocal requests for counsel when
the individual indicates his request need only be honored
if the police consider him a suspect. |
This approach presents no "potentially thorny new
analytical requirement." Dissent at 1536. When an in-
dividual responds to interrogation by stating “if I am a
suspect, I want counsel," and then asks "am I a suspect?"
App. 22
police officers will readily recognize the correct response
and its consequences.
6. See supra at 1529-1530.
7. The magistrate relied upon United States v.
Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978) (en
banc), for the proposition that "[a]ll communication be-
tween a suspect and a law enforcement officer is not
barred after the suspect invokes his right to counsel."
However, Rodriguez-Gastelum was decided prior to
Edwards, and, as the state concedes, was significantly
undermined by Edwards. Appellee’s brief at 28. See
United States v. Thierman, 678 F.2d 1331, 1338 (9th Cir.
1982) (Wallace, J., dissenting). Our decision in Fouche
makes clear that the only permissible communication
following an equivocal request for counsel is that which
is aimed at clarifying the request.
8. The State argues the Fouche rule requiring the
police to clarify a suspect’s intentions is inapplicable to
this case because Smith’s initial statement "was not an
ambiguous or equivocal request for counsel and certainly
not a request for immediate representation." We agree
the request was conditional, but, as stated in Part IIA,
we do not agree that the police may disregard the
request when they know the condition has been satisfied.
9. The Magistrate cited United States v. Davis, 527
F.2d 1110 (9th Cir. 1975), in which a suspect who indi-
cated he did not want to talk, was shown surveillance
photographs taken at the bank during the robbery and
asked if he wanted to reconsider. The case is distin-
guishable. In Davis, the suspect’s right to silence rather
=
App. 23
than the right to counsel was at issue, and "the right to
silence is not protected by a per se rule." Chinstopher v.
Florida, 824 F.2d at 844; Michigan v. Mosley, 423 USS.
96, 104 n.10, 96 S.Ct. 321, 326 n.10, 46 L.Ed.2d 313
(1975). In any event, the single statement in Davis is in
sharp contrast with the repeated recitation of incriminat-
ing circumstances to which Smith was exposed.
A possibly more analogous case is United States v.
Pheaster, 544 F.2d 353 (9th Cir. 1976), where we held
that the police officers did not have to "sit mute" during
the transportation of a prisoner even after he had
invoked his right to counsel. Our holding in Pheaster is
seriously undermined by the Supreme Court’s decision in
Edwards. See also Brewer v. Williams, 430 U.S. 387, 97
S.Ct. 1232, 51 L.Ed.2d 424 (1977) (finding a violation of
the right to counsel when police elicited incriminating
information during ride to police station).
1. Smith’s statements evince no more than an am-
biguous or equivocal assertion of the right to counsel, see
United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985)
("Fouche I"), even when read in light of the Supreme
Court’s charge to construe broadly any such requests.
See e.g., Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct.
1404, 1409, 89 L.Ed.2d 631 (1986).
Moreover, the simple fact that the suspect has men-
tioned the word "lawyer" is not dispositive of whether he
has made even an ambiguous request for counsel. See
United States v. Jardina, 747 F.2d 945, 949 (Sth Cir.
1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84
L.Ed.2d 833 (1985) ("The word ’attorney’ has no talis-
manic qualities. A defendant does not invoke his right
App. 24
to counsel any time the word falls from his lips").
2. These statements also shed light on what we
have referred to as the "critical factor" in determining
the validity of the government’s behavior; ie., "whether
a review of the whole event discloses that the interview-
ing agent has impinged on the exercise of the suspect’s
continuing option to cut off the interview." United States
v. Fouche, 833 F.2d 1284, 1287 (9th Cir. 1987), cert.
denied, _-—~US. __, 108 S.Ct. 1756, 100 L.Ed.2d 218
(1988) ("Fouche II") (quoting Nash v. Estelle, S97 F.2d
513, 518 (Sth Cir.) (en banc), cert. denied, 444 U.S. 981,
100 S.Ct. 485, 62 L.Ed.2d 409 (1979)).
The majority seems to think that the clarification
process should be limited to the police answering a sus-
pect’s questions. See majority opinion at 1533-1534.
Such an approach is at odds, however, with the very
wording of the standard we adopted in Fouche J, where-
in we stated that "[q/uestions aimed at clarifying the
desire for counsel must be strictly limited to that pur-
pose." Fouche J. I found no constitutional requirement
that a suspect and police reverse roles at this stage; the
police are still in charge of the interrogation and are not
barred from asking clarifying questions.
3. Indeed, the troopers’ actions neither violate the
Fouche I standard nor would they violate the necessarily
Stricter standard we apply in reviewing police conduct
following a suspect’s unequivocal request for counsel. A
recent case is illustrative, in which we held that police
did not violate Miranda when, after a suspect had un-
equivocally requested an attorney, they falsely told him
that he had been positively identified by the victim of
App. 25
the rape. Shedelbower v. Estelle, 859 F.2d 727 (9th Cir.
1988). One would be hard-pressed to argue that lying to
a suspect about his implication in the crime about which
he is being questioned is somehow more appropriate
police conduct than that in which the troopers engaged
here.
4. I am mindful of the Court’s admonition that
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68
L.Ed.2d 378 (1981), and its progeny provide for "a
prophylactic safeguard whose application does not turn
on whether coercion in fact was employed." Smith v.
Illinois, 469 U.S. 91, 99 n.8, 105 S.Ct. 490, 495 n.8, 83
L.Ed.2d 488 (1984) (emphasis supplied). I am not
questioning in this dissent whether Edwards should be
applied; rather, I suggest that evaluating the underlying
purposes of the Edwards rule offers guidance on how to
apply the rule.
5. This is especially bothersome here, where the
alleged condition relates to a matter within the exclusive
knowledge of the interrogators. Where, as here, the
answer is obvious, Le., the troopers were looking at
Smith as a murder suspect (and so informed him), the
problems are admittedly minimal. But what about a
situation in which the suspect makes his request contin-
gent upon a matter that is not readily apparent? Then
will the focus of the inquiry have to shift to the state of
mind of the interrogators to see if the alleged condition ~
is satisfied?
Until now, right to counsel jurisprudence recognized
two categories of request with a bright line rule to deal
with each: “unequivocal” (all interrogation ceases until
App. 26
accused initiates further communication: Miranda-
Edwards) or “ambiguous-equivocal” (clarifying questions
only: Fouche I-Fouche I]). The majority sets up a new
category of "conditional" somewhere between Miranda
and Fouche I; I would place "conditional," if such a
category were to exist at all, entirely within "ambiguous-
equivocal.”
First, a two category rule definitely offers a much
more luminous “bright line" than does the majority.
Second, such a standard actually serves to protect the
suspect undergoing questioning better than does the
majority approach because under the latter analysis,
what happens to requests based on conditions that are
not satisfied? Can they be treated as nullities? Again,
the analysis will unravel into a thorny bramble in which
the court will be called upon to determine whether the
condition is satisfied. Third, the "strictly limited" stan-
dard set forth in our Fouche J decision guards against
agents using responses to an allegedly conditional re-
quest for counsel as opportunities to obtain incriminating
statements. Indeed, under the standard of conduct
exhibited in this case, the interrogator would be required
to do more than simply provide any knowledge he may
have in regard to the "condition" the suspect has at-
tached to his purported invocation; he should also give
the suspect, having been made aware of any information
the agent may have had, an additional and explicit
opportunity to invoke the right to counsel (as the troop-
ers did here). Finally, such a standard comports with
the fact that "Edwards focuses on the state of mind of
the suspect and not of the police." Anzona v. Roberson,
___—~US. -_, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704
(1988). Indeed, as Justice Kennedy stated in his
App. 27
Roberson dissent, "[oJur ultimate concern in Edwards,
and in the cases which follow it, is whether the suspect
knows and understands his rights and is willing to waive
them." Roberson, 108 S.Ct. at 2102.
6. I advisedly speak of maintaining a balance
between these competing interests in this context. As
Justice Kennedy reminds us in his dissent in Roberson,
the Edwards rule is just that -- a rule - and not a
constitutional mandate. Roberson, 108 S.Ct. at 2101-02
(Kennedy, J., dissenting). Therefore, we must be careful
in applying the rule in contexts that represent an "in-
ching away" from the moorings of the original purposes
for the rule.
7. The words of Justice Kennedy’s dissent in
Roberson seem particularly apt here as well: "The
majority’s rule is not necessary to protect the rights of
Suspects, and it will in many instances deprive our
nationwide law enforcement network of a legitimate
investigative technique now routinely used to resolve
major crimes." Roberson, 108 S.Ct. at 2102 (Kennedy, J.,
dissenting).
App. 28
App. 29
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL T. SMITH,
Petitioner-Appellant,
No. 86-4357
v.
ROGER V. ENDELL, D.C. No. CV84-583-H
Commissioner of the
Department of Corrections,
State of Alaska,
)
)
)
)
)
)
)
)
)
) ORDER
)
)
Respondent-Appellee.
)
Before: BROWNING, NORRIS
and O’SCANNLAIN, Circuit Judges
Judges Browning and Norris vote to deny the
petition for rehearing and reject the suggestion for
rehearing en banc; Judge O’Scannlain votes to grant the
petition for rehearing and reject the suggestion for
rehearing ‘en banc.
The full court has been advised of the sugges-
tion for rehearing en banc and no active judge has
requested a vote on whether to rehear the matter en >
banc. (Fed. R. App. P. 35).
The petition for rehearing is denied and the
App. 30
Suggestion for rehearing en banc is rejected.
Filed June 1, 1990, Cathy A. Catterson, Clerk, U.S.
Court of Appeals. ;
App. 31
THE COURT OF APPEALS
OF THE STATE OF ALASKA
MICHAEL T. SMITH,
)
)
Appellant, ) File No. 7093
)
v. ) MEMORANDUM
) OPINION AND
STATE OF ALASKA, ) JUDGMENT
is
Appellee. ) [No. 641 - July 25, 1984]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, J. Justin Ripley, Judge.
Appearances: Janet L. Rice, Susan
Orlansky, Assistant Public Defenders,
and Dana Fabe, Public Defender,
Anchorage, for Appellant. Kristen L.
Young, Assistant Attorney General,
Office of Special Prosecutions and
Appeals, Anchorage, and Norman C.
Gorsuch, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats
and Singleton, Judges.
App. 32
COATS, Judge.
Michael T. Smith was convicted of two counts—
of murder in the first degree, AS 11.41.100(a)(1).- Judge
Justin Ripley sentenced Smith to fifty years’
imprisonment for one count of murder and sixty years
imprisonment on the other count of murder. These
sentences were made consecutive to each other. Smith
appeals his conviction and sentence to this court. We
affirm.
The evidence presented at trial showed that
Michael Smith had been dealing in cocaine and Ron
Cole was his supplier. Smith owed Cole over $15,000
from the various cocaine dealings and Cole was pressing
Smith for the money. Smith went over to Ron Cole’s
residence on or about the twenty-eighth day of
September 1981. At that time he shot and killed both
Ron Cole and Cole’s wife, Darcell Cole.
Smith left Anchorage after the killings. He re-
turned on October 10, 1981, and was arrested at the
airport on drug charges. He was taken to trooper head-
quarters where he was interviewed by Troopers Thomas
Sterns and Chuck Miller. Smith initially denied any
involvement in the Cole homicides but later admitted
that he killed Ron and Darcell Cole.
At trial, Smith defended on the ground of
insanity. He claimed that at the time of the killings he
was suffering from cocaine psychosis and that because of
this psychosis he believed that it was necessary for him
to kill the Coles to protect himself and his family. The
App. 33
jury rejected this defense and convicted Smith of two
counts of first-degree murder.
THE CONFESSION
Smith first argues that Judge Ripley erred in not
suppressing the confession which he made to Troopers
Sterns and Miller. Smith’s argument turns on the fact
that during the interview he indicated that he might want
an attorney.
Under the Supreme Court’s decision in Miranda
v. Anzona, 384 U.S. 436, 16 L.Ed.2d 694 (1966), the
prosecution may not use statements stemming from
custodial interrogation unless prior to any questioning,
the person in warned "that he has a right to remain
silent, that any statement he does make may be used as
evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed."
384 US. at 444, 16 L.Ed.2d at 706-07.
The procedure to be followed by the police
when a defendant requests counsel differs depending
upon the nature of that request. Generally, where a
defendant states that he wants an attorney, police must
cease interrogation until an attorney is present. 384 U.S.
at 474, 16 L-Ed.2d at 723. However, courts have recog- -
nized that "[w]here the suspect’s desires are expressed
in... an equivocal fashion, it is permissible for the
questioning official to make further inquiry to clarify the
suspect’s wishes." Nash v. Estelle, 597 F.2d 513, 517 (Sth
Cir.) (en banc), cert. denied, 444 U.S. 981, 62 L.Ed.2d
App. 34
409 (1979).' It is therefore important for purposes of
this analysis to determine whether in fact Smith’s request
was equivocal,” or whether Smith’s mention of an attor-
ney during the course of questioning was an invocation
of his right to an attorney, thereby requiring the officers
to cease interrogation. Resolution of this issue requires
us to describe the interview in greater detail.
When Smith was arrested at the airport, the
arresting officers warned him of his Miranda mghts.
Smith told the arresting officers that he wanted to speak
to somebody in charge of major crimes about some
recent killings in Anchorage. Smith was taken to the
State Troopers office where he was interviewed by
Troopers Stearns and Miller.
At the beginning of his interview with Stearns
and Miller, Smith was again advised of his rights. Smith
indicated that he understood his rights and had waived
them verbally at the airport. The critical part of the
interview follows:
STEARNS: We have tipped the scales
of ... of being anymore than what we
were before, and that’s asking questions
about dope..
SMITH: Every... everything’s fine.
STEARNS: Dealings and Ron Cole.
SMITH: Everything’s fine. I under-
stand you need information and I’m
willing to supply everything [ know.
|
App. 35
STEARNS: Okay. So, the answer to
the question of whether you had any
involvement with the death of RON
COLE is no you did not, is that right?
SMITH: That’s right.
STEARNS: Okay, and you have no
idea who did kill RON COLE?
SMITH: No.
STEARNS: And you suspect no one
of killing RON COLE that you per-
sonally know or have any contact with?
SMITH: I wouldn’t be able to give you
a suspect, no.
STEARNS: Okay, and I guess the
question that I asked that set you off to
wondering what CHUCK and I were
up to ah... I... I guess what |
asked was, you didn’t get yourself into
a position where you had to protect
yourself and that... that tended
to... to at least make you want to
ask some question of us.
SMITH: It... it, well, I’m not stupid,
okay.
STEARNS: Okay.
App. 36
SMITH: I saw... saw your line of
questions. I saw where you were head-
ing.
STEARNS: Un’huh.
SMITH: It’s alright.
STEARNS: Okay. So, I take it that
you did not get yourself in a position
where you had to protect yourself, is
that a... is that yes or no?
SMITH: No....
STEARNS: Okay, so umm... we're
not in a park where you're . . . you're
afraid to say anything that you're out
there and the things went bad and you
had to protect yourself, that’s out of
the question, you didn’t have anything
to do with his death.
SMITH: Can I talk to a lawyer? At
this point, I think maybe you’re looking
at me as a suspect, and I should talk to
a lawyer. Are you looking at me as a
suspect?
MILLER: Well, it... it wouldn’t be
fair to you to say that we weren't
MIKE.
STEARNS: Yea.
) 4
:
-
-
App. 37
SMITH: Because if you are, it’s . . . it’s
a serious charge and I think I should
have counsel, if that’s where... what
you're... where you’re coming from,
just tell me if you are.
MILLER: Well MIKE, you yourself
pointed out that... that anybody that
might be found in that notebook would
certainly have reason enough to kill
him.
SMITH: Yeah. I admitted, my name
is probably in it.
STEARNS: And certainly you .. . you
know, let... let’s face it, you’re a
person who dealt with RON COLE,
and you're a person who owed him a
lot of money and if you for one minute
sat down in a room here after us ex-
plaining exactly what our job was and
what we were doing, if you for one
minute didn’t picture yourself as a
suspect then, okay, then I would cer-
tainly forsee that if you’ve reached that
point in your mind now, you're . . . we
have no choice but to say well, he’s... .
he’s told us everything about what the
suspect should look like, and we’re
sitting here saying, well you're...
you're right, we think that’s probably
what the suspect looks like too.
SMITH: Yeah.
App. 38
STEARNS: Okay. And if you for one
minute think that we don’t think the
suspect is someone who is friends with
him, someone who dealt with dope and
someone who was in debt to him, then
absolutely, you’re correct.
SMITH: Sure.
STEARNS: And we have no choice
but . . . but to eliminate suspects night?
I mean, that’s our job.
SMITH: That’s fine.
STEARNS: Okay. And that’s where
we're coming from.
SMITH: I know, but I’m saying there’s
probably a. .. at least a dozen people
like me that have known him for years
and in the same position. They owe
him money. They’re friends; in the
same position as I am.
STEARNS: And I don’t, you know, I
don’t for one minute at all, okay, want
to interrupt your... your train of
thought or your needs or your neces-
sities, Okay, and we talked about the
rights sheet, you’re aware of them; been
advised of your nghts at least twice today,
okay.
App. 39
SMITH: Yes.
STEARNS: And you signed it and
you're aware... and you’re aware that
if says on there any time you feel that
you want counsel, that’s it, okay. So,
don’t misunderstand CHUCK and I.
You want counsel, well... by God
don’t... don’t hesitate to get yourself
counsel. You want to talk to us about
RON COLE'S dealings, you want to talk
to us about the murder and suspects,
anybody, will talk to you. If you want a
lawyer to do that, then feel free. Okay.
I don’t think... I don’t think ...?
SMITH: IJ don’t know if I need one or
not. That’s why I’m trying to make my
mind up, if I need to go that route for
myself, you know.
MILLER: Alright. Well, you... you
heard what . . . you heard what I said.
I... you yourself say anybody that
would be in that notebook could
be... could be logical suspect, and
you certainly agree, at least with our
line of reasoning, in picturing the kind
of person we have as a suspect, an
associate, somebody that dealt dope
and somebody that’s in notebook and
in debt up to his ass.
SMITH: Um-hum.
App. 40
MILLER: Now MIKE, you’ve sit here
for the last hour or so and we've...
we've talked about your background;
you've been pretty open and honest at
least what we know about you, okay. —
SMITH: Um’hum.
MILLER: Ah, in regards with your
dealings with RON... [Emphasis
added.]
Shortly after this exchange, the trooper shut off the tape
to get some coffee. According to the troopers, during
this period of time Smith admitted that he killed the
Coles. The tape recorder was then turned on again and
Smith repeated his confession.
Judge Ripley concluded that Smith’s remarks
about an attorney, viewed in context, simply indicated
that Smith was aware that he had a right to counsel,
that he was undecided whether to invoke the right to
counsei or go forward, and that he ultimately elected to
not invoke his right to counsel but continued to talk to
the police. We believe that the record supports Judge
Ripley’s conclusion. We note that when Smith first
brought up the question of whether he should talk to a
lawyer, he wanted to know if he was a suspect. Smith
asked the troopers whether he was a suspect and
Trooper Sterns answered by telling Smith that he was a
' suspect. Sterns also reminded Smith of his right to an
attorney at that point, and gestured towards a telephone
App. 41
where Smith could call an attorney. Smith then indi-
cated that he was trying to decide whether to contact an
attorney, but continued with the interview. Under these
circumstances, Judge Ripley could properly conclude that
Smith never invoked his right to an attorney, was made
fully aware of that right, and chose to continue the
interview. See Nashoalook v. State, 663 P.2d 975, 977-
980 (Alaska App. 1983). We conclude that Judge Ripley
did not err in deciding that Smith knowingly and intel-
ligently waived his right to counsel.
THE ARMED ROBBERY CONVICTION
Smith next argues that Judge Ripley erred in
allowing the state to ask a character witness about
Smith’s former conviction for armed robbery. The
record reflects that Judge Ripley granted a protective
order prohibiting the state from introducing “evi-
dence ... implying the existence of any inadmissible
conviction," pursuant to Evidence Rule 609. Evidence
Rule 609 concerns impeachment by evidence of convic-
tion of a crime and provides, among other things, that a
conviction over five years old is inadmissible against the
accused in a criminal case. A.R.E. 609(b). Thus, the
protective order precluded introducing evidence of -
Smith’s 1969 California conviction of armed robbery.
Smith, however, introduced evidence of his good reputa-
tion for peacefulness in the community through a
character witness, David Quast. Judge Ripley allowed
the prosecutor to ask Quast whether, in arriving at his
App. 42
conclusion that Smith had a good reputation for peace-
fulness, he had considered the fact that Smith had been
convicted of armed robbery in California in 1969.°
Quast replied that he knew Smith had formerly been in
jail, that he did not know the details of the crime, but
that an armed robbery conviction did not influence or
change his opinion of Smith’s good reputation for peace-
fulness. Smith contends that Judge Ripley erred in
allowing this cross-examination.
A character witness may be cross-examined
about an accused’s prior arrest or conviction which
appears inconsistent with the opinion or reputation to
which the character witness has previously testified.
A.R.E. 405(a). In Michelson v. United States, 335 U.S.
469, 482, 93 L.Ed. 168, 177 (1948), the Supreme Court
reasoned:
The inquiry as to an arrest is per-
missible also because the prosecution
has a right to test the qualifications of
the witness to bespeak the community
opinion. If one never heard the specul-
ations and rumors in which even one’s
friends indulge upon his arrest, the jury
may doubt whether he is capable, of
giving any very reliable conclusions as
to his reputation.
335 U.S. at 483, 93 L.Ed. at 177. See United States v.
Edwards, 549 F.2d 362, 367 (Sth Cir.), cert. denied, 434
U.S. 828, 54 L.Ed.2d 87 (1977); United States v. Lewis,
482 F.2d 632, 638 (D.C. Cir. 1973).
App. 43
Alaska Rule of Evidence 405(a) permits inquiry
into specific acts on cross-examination "to prove the
knowledge of a character witness" where character has
been placed in issue. E.R.C. 81. Evidence Rule 405(a)
provides:
Methods of Proving Character.
(a) Reputation or Opinion. In all
cases in which evidence of character or
a trait of character of a person is
admissible, proof may be made by
testimony as to reputation in any com-
munity or group in which the individual
habitually associated or by testimony in
the form of an opinion. On cross-ex-
amination, inquiry is allowable into
relevant specific instances of conduct.
[Emphasis added.]
Since the cross-examination of Quast is allowed under
Evidence Rule 405(a), the question which this case pre-
sents is whether the probative value of the inquiry about
the prior conviction outweighs the danger of unfair
prejudice. A.R.E. 403. This balancing process is en-
trusted to the discretion of the trial judge and on appeal
we are to reverse the judge’s decision only where there
is an abuse of discretion. Alaska Northen Dev. v.
Alyeska Pipeline Serv., 666 P.2d 33, 42 (Alaska 1983),
cert. denied, __ U.S. __,, 104 S.Ct. 706, 79 L.Ed.2d 170
(1984).
Smith argues that the 1969 armed robbery
App. 44
conviction was too remote in time to have significant
probative value and that his participation in the crime
was minimal so that the conviction shed little light on his
character. He also points out that his character witness,
Quast, testified that he had only known Smith since
1976. He argues that asking Quast about a 1969 armed
robbery was not relevant to Quast’s testimony.
The purpose of allowing cross-examination of
character witnesses concerning prior convictions was set
forth in United States v. Edwards, 549 F.2d at 367:
Allowing evidence of convictions under
Rule 609(b) is meant to impeach the
witness with respect to /us truth and
veracity and also the limiting of the
time for use of convictions allows for
rehabilitation of that witness. But
allowing cross-examination of character
witnesses as to their having heard of prior
convictions or arrests of a defendant
shows whether he has knowledge of
defendant’s reputation and whether that
knowledge influences his opinion in any
way. [Emphasis added.]
See also Michelson v. United States, 335 U.S. 469, 93
L.Ed. 168 (1948) (prosecutor allowed to question char-
acter witness about defendant’s 27-year-old arrest for
receiving stolen goods); United States v. Booz, 451 F.2d
719 (3d Cir. 1971) (prosecutor allowed to ask reputation
witness about defendant’s 13-year-old court martial). We
conclude that Judge Ripley did not abuse his discretion
in allowing the prosecutor to inquire into Smith’s prior
App. 45
armed robbery conviction. Smith elected to introduce
evidence of his reputation for peacefulness. He could
not necessarily limit the testimony to his character for
peacefulness from 1976 on. See Salud v. State, 630 P.2d
1008, 1010-11 (Alaska App. 1981) (once accused offers
evidence of his character for peacefulness, prosecution
may rebut with evidence of reputation of violence). We
find no error. -
THE FAILURE TO DEFINE
"MENTAL DISEASE OR DEFECT"
Smith’s defense at trial was based on
AS 12.45.083, the statutory test for insanity in effect at
the time he killed the Coles. Former AS 12.45.083
provides in pertinent part:
(a) A person is not responsible for
criminal conduct if at the time of the
conduct, as a result of mental disease
or defect, he lacks substantial capacity
either to appreciate the wrongfulness of
his conduct or to conform his conduct
to the requirements of law.
(b) Reliance on mental disease or
defect as excluding responsibility is an
affirmative defense. The burden of
proof beyond a reasonable doubt does
not require the prosecution to disprove
an affirmative defense unless and until
there is evidence supporting the de-
fense. The requirement of evidence
supporting the affirmative defense is
SO
App. 46
not satisfied solely by evidence of an
abnormality which is manifested only by
repeated criminal or otherwise anti-
social conduct.
Former AS 12.45.083 was patterned after the substantial
capacity test developed by the American Law Institute.
Neither the Alaska test nor the A.L.I. test defines
“mental! disease or defect." Nor are there cases in
Alaska which have attempted to supply the definition.
To fill the void, Smith requested that the jury
be given the following instruction:
As used in these instructions, the term
mental disease or defect includes any
abnormal condition of the mind which
substantially affects mental or emotional
processes and substantially impairs be-
havior controls.
Judge Ripley refused to give this instruction. He con-
cluded that the term "mental disease or defect," to the
extent it was to be defined, had been defined by the
legislature and that it was up to the jury to apply the
legislature’s definition to the facts.
The instructions that Judge Ripley gave were
taken from the Alaska Pattern Jury Instructions which
closely track the language of former AS 12.45.083:
The State must prove beyond a
reasonable doubt that at the time of
the criminal act, the defendant did not
lack the substantial capacity either to
App. 47
appreciate the wrongfulness of his
conduct or to conform his conduct to
the requirements of the law as a result
of mental disease or defect.
The defense of non-responsibility due
to mental disease or defect is not
satisfied solely by evidence of an ab-
normality which is manifested only by
repeated criminal or otherwise anti-
social conduct.
Smith argues that because the trial court failed
to define the term "mental disease or defect," the court’s
instructions were ambiguous. He argues that as a result,
the jury was confused and relied too heavily on expert
opinion to supply the meaning.
Smith’s proposed instruction was taken from
McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir.
1962). The McDonald definition of "mental disease or
defect" was adopted by the D.C. Circuit Court to be
used in conjunction with the Durham test. It was later
grafted onto the A.L.I. test of substantial capacity which
replaced the Durham test in thai jurisdiction. United
States v. Browner, 471 F.2d 969, 990-92 (D.C. Cir. 1972).
While there are at least two states which have
adopted the A.L.I. test plus the McDonald definition of
"mental disease or defect," the McDonald definition has
not widely been accepted. One writer concludes that
McDonald is even more sweeping and vague than the
App. 48
M’Naghten test.
Under the McDonald definition the
trier of fact who finds the mental and
emotional processes "substantially im- —
paired" must still ask: "affected" and
"impaired" in what way? The obvious
answer is: affected and impaired in a
way which results from an “abnormal
condition of mind.” But surely not just
any abnormality of mind will do for the
present purpose. A person who is in a
state of self-induced alcoholic or nar-
cotic intoxication is in an abnormal
condition of the mind which can often
substantially affect intellectual and emo-
tional processes and impair behavior
controls. Again, unavoidable or negli-
gently induced extreme fatigue and
exhaustion is associated with an ab-
normal condition of mind which may
substantially affect intellect and emotion
and impair behavior control. But
surely these kinds of abnormal condi-
tions of the mind are not appropriate
for the purpose of excusing from crimi-
nal responsibility by reason of insanity.
What is clearly needed is a state-
ment of that specific sort of mental
abnormality which will iielp to establish
the insanity plea. What kind of ab-
normal mental condition must the court
have tacitly had in mind when it formu-
lated the definition? One possible
App. 49
answer is the specific form of mental
abnormality whose presence, appro-
priately connected to the act, excuses
from criminal responsibility. But this
answer is obviously defective on two
grounds: (a) it makes the whole test a
question begging one since the mental
disease test is supposed to provide an
independent criterion of the absence of
criminal responsibility; (b) it is still too
general, for it is not difficult to think of
mental abnormalities whose presence,
when appropriately connected to the
act, typically do excuse from criminal
responsibility but which do not provide
the basis for an insanity plea. Such a
condition would be produced, for ex-
ample, by nonnegligently induced ex-
haustion. Another possible answer
would restrict the insanity plea to those
mental abnormalities which exist in
involuntarily induced disorders in order
to exclude mental abnormalities pro-
duced by exhaustion, intoxication,
concussion, and the like. But this also
renders the McDonald definition hope-
lessly question begging. The point of
using the phrase “abnormal condition
of the mind" was precisely to help
define what the court meant by "mental
disease."
Thus, the court in McDonald recog-
nizes the inadequacy of treating mental
disease as a medical concept and pro-
App. 50
poses that since this concept serves
specific legal purposes it should be
defined accordingly. However, the
opinion fails to build on a constructive
account of-that legal role and thereby
offers a definition which compounds
the present confusion.
Fingarette, The Concept of Mental Disease in Criminal
Law Insanity Tests, 33 Univ. Chicago L. Rev. 229, 242-
43 (1966). (Footnotes omitted.) From Professor
Fingarette’s analysis it would appear that the McDonald
definition, had it been given, would have proved favor-
able to Smith in that it could have encompassed Smith's
drug-induced psychosis.
The state argues, however, that the trial court
was correct in not using the McDonald definition be-
cause to do so would have resulted in an improper
modification of Alaska’s insanity statute. We believe the
state’s argument is meritorious.
As the state points out, the court in Browner
was not clarifying the A.LI. test but was in fact creating
a new insanity rule. In Alaska, it was the legislature and
not the court which adopted the A.L.I. test. The Alaska
test does not define "mental disease or defect" other
than by exclusion. An instruction using the McDonald
definition arguably would broaden application of that
test. "It is: the legislature, not the court, that has the
authority to change statutory laws." State v. Crenshaw,
659 P.2d 488, 497 (Wash. 1983).° The court in Crenshaw
held that where the legislature has acted, any instruction
App. 51
with language which differs from that of the statute
would be improper. /d. at 498.
While it is true the phrase "mental disease or
defect" may be susceptible of differing interpretations, it
appears that the legislature in adopting the A.L.I. test
made a conscious decision to leave the phrase undefined.
As one critic writes, because "a precise definition of
insanity is impossible . . . it is entirely sensible to leave
‘mental disease’ undefined, at least so long as it is modi-
fied by a statement of minimal conditions for being held
to account under a system of criminal law." A. S.
Goldstein, The Insanity Defense 87 (1967). Until we
know what really causes criminal conduct, "the insanity
defense will have to be framed in a way which permits
juries to express the feelings of the community on the
subject of responsibility." Jd. at 91.’
We conclude that Judge Ripley did not err in
failing to further define the term "mental disease or
defect.”
App. 52
App. 53
THE SENTENCE
Smith was convicted of two counts of first-
degree murder. Alaska Statute 12.55.125(a) provides
that "[a] defendant convicted of murder in the first
degree shall be sentenced to a definite term of imprison-
ment of at least 20 years but not more than 99 years."
Judge Ripley sentenced Smith to 50 years for Count I
and 60 years for Count II. The sentences are to run
consecutively. Smith appeals this sentence as excessive.
He also argues that "the trial court erred . . . in impos-
ing consecutive sentences in excess of the maximum
possible for one count without finding, explicitly or
implicitly, that confining Smith for 110 years would be
necessary to protect the public." See Lacquement v.
State, 644 P.2d 856, 862 (Alaska App. 1982).
In sentencing Smith, Judge Ripley emphasized
Smith’s age and pattern of criminal behavior. He also
noted the particular facts of the case which indicated
that Smith had planned the killings in advance. Judge
Ripley concluded that given Smith’s age, criminal record,
and the facts of the instant offenses, Smith’s chances for
rehabilitation were slight and the risk to society was
great if he were ever released from prison. We believe
that Judge Ripley’s findings are supported by the record»
and that they support the sentences which he imposed,
including the need to impose those sentences consecu-
tively. See Neal v. State, 628 P.2d 19, 21 (Alaska 1981).
See also Nukapigak v. State, 663 P.2d 943 (Alaska 1983).
App. 54
The conviction and sentences are AFFIRMED.
FOOTNOTES
1. Nash v. Estelle, 597 F.2d 513 (Sth Cir.) (en
banc) cert. denied, 444 U.S. 981, 62 L.Ed.2d 409 (1979),
was cited with approval in Edwards v. Arizona, 451 U.S.
477, 486 n.9, 68 L.Ed. 378, 387 n.9 (1981).
2. Webster defines "equivocal" to mean:
(1) that can have more than one interpretation;
having two or more meanings; purposely vague,
misleading, or ambiguous... ; (2) uncertain;
undecided; doubtful . . . ; (3) suspicious; ques-
tionable ....
Webster’s New World Dictionary, 474 (2d ed. 1980).
3. In his affidavit which was attached to the state’s
opposition to Smith’s motion to suppress, Trooper
Stearns stated: "When I said to defendant’... feel
free ...°, I did remind Smith he had been advised of
his rights, twice, and that a request for counsel would
end the questioning, and I was gesturing to the tele-
phone nearby, which defendant was free to use, if he
wished, to call an attorney."
4. In reviewing this issue, we review the record in
the light most favorable to the prevailing party, in this
case, the state. Giacomazzi v. State, 633 P.2d 218, 222-
23 (Alaska 1981).
5. Judge Ripley had warned Smith earlier in the
App. 55
trial that if he had witnesses testify about his reputation
for peacefulness, there was a possibility that the prosecu-
tion would be able to cross-examine those witnesses
about whether they had considered Smith’s 1969 armed
robbery conviction.
6. In Crenshaw, the Washington Supreme Court
stated that where the legislature had chosen to codify
the M’Naghten test and not include a definition of
"moral" rather than “legal” wrong, it was preferable to
have the test presented to the jury without elaboration.
7. The Alaska Legislature has included a definition
for "mental disease or defect" as part of its 1982 reform
of the insanity defense. AS 12.47.130(3) defines "mental
disease or defect" as:
[A] disorder of thought or mood that substan-
tially impairs judgment, behavior, capacity to
recognize reality, or ability to cope with the
ordinary demands of life; "mental disease or
defect" also includes mental retardation, which
means a significantly below average general
intellectual functioning that impairs a person’s
ability to adapt or to cope with the ordinary
demands of life.
App. 56 App. 57
IN THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL T. SMITH, _ )
)
Petitioner, |) Supreme Court No. S-591
)
vs. )
) ORDER
STATE OF ALASKA, _ )
| )
Respondent. )
)
Court of Appeals No. 7093
Superior Court No. 3AN 81-6231 Cr.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices
On consideration of the petition for hearing
| filed on August 23, 1984 and the opposition to the
petition filed on August 31, 19842
IT IS ORDERED:
The petition for hearing is denied.
App. 58 App. 59
Entered by direction of the court at Anchorage, IN THE UNITED STATES DISTRICT COURT
Alaska on October 4, 1984. |
FOR THE DISTRICT OF ALASKA
CLERK OF THE SUPREME COURT
MICHAEL T. SMITH,
)
)
Is/ Petitioner, )
DAVID A. LAMPEN | : .
)
ROGER ENDELL, ) No. A84-583 Civil
(Rabinowitz, Chief Justice, and Moore, Justice, dissent. Commissioner of the )
They would grant the petition.] Department of Corrections, ) RECOMMENDATION
State of Alaska, ) REPETITION
) FOR WRIT OF
) HABEAS CORPUS
)
| Respondent.
Michael T. Smith, an Alaska State prisoner, who
was sentenced to serve 50 and 60 years consecutively on
two counts of first degree murder of Ron and Darcella
Cole has filed a habeas corpus petition brought under
28 U.S.C. § 2254 directed at his July 23, 1982 Judgment
of Conviction entered by the Superior Court, Third
Judicial District, at Anchorage. For reasons stated
herein, 1 RECOMMEND that the petition be DENIED.
Prior to trial, Smith moved to suppress his
confession claiming that his Miranda rights were violated
because he had requested a lawyer before the question-
ing ceased. The trial judge denied the motion to
suppress, and the tape recorded confession was intro-
duced at trial. The Alaska Court of Appeals affirmed
Se
App. 60
the conviction in an unpublished memorandum opinion |
and judgment dated July 25, 1984. The Supreme Court
of Alaska denied Smith’s petition for hearing. Smith did
not file for post-conviction relief in State Court.
EXHAUSTION OF STATE REMEDIES
Although Smith v. Illinois, 105 S.Ct. 490 (1984)
was decided subsequent to the Alaska Court of Appeals
decision in the underlying case, respondent State of
Alaska takes the position that Smith v. Illinois was not
a significant change in the law and it is unlikely that the
Alaska Courts would further consider Smith’s claim on
the merits if he brought a post-conviction action in State
Court pursuant to Alaska Criminal Rule 35(c)(7). See |
Marone v. State, 653 P.2d 672 (Alaska Ct. App. 1982).
See also Giacomazzi v. State, 633 P.2d 218, 222 (Alaska
1981), wherein the Alaska Supreme Court addressed the
standard for determining the consequences of an ac-
cused’s ambiguous or equivocal request for counsel when
in custody. The Alaska Supreme Court adopted an
approach that permits a limited inquiry for the purpose
of clarification after an accused makes a statement that
arguably might be construed as a request for counsel.
Exhaustion does not demand repetitious applications to
state courts. A prisoner need only fairly present his
claims to the state courts once. See Picard v. Connor,
404 U.S. 270, 275 (1971). I find that petitioner Smith |
has satisfied the exhaustion requirement by presenting |
the State Supreme Court with a fair opportunity to rule
|
App. 61
on the merits and by having the issues raised before the
Alaska Court of Appeals. See Sherwood v. Tomkins, 716
F.2d 632 (9th Cir. 1983).
FACTS DETERMINED BY STATE COURTS
Where the facts underlying a constitutional claim
are in dispute, a federal court in a habeas corpus peti-
tion must conduct an evidentiary hearing if the petitioner
did not receive a full and fair evidentiary hearing in a
state court. 28 U.S.C. § 2254(d); Townsend v. Sain, 372
U.S. 293, 312 (1963). Smith has not alleged any of the
exceptions to § 2254(d) providing cause for an eviden-
tiary hearing. Therefore, the determination on the
merits of factual issues made by the state court evi-
denced by a written finding, written opinion or other
reliable and adequate written indicia shall be presumed
to be correct unless they lack fair support in the record.
Marshall v. Lonberger, 103 S.Ct. 843, 850 (1983); Sumner
v. Mata, 102 S.Ct. 1303 (1982) (per curiam).
Prior to trial in the State Court, the defendant
filed a motion to suppress his confessions or admissions
on grounds that such statements were made after he had
indicated his desire and need for an attorney. It was
Smith’s position that he had stated his desire to exercise
his right to silence and his right to counsel. The State
argued that Smith as a matter of fact had not asked for
an attorney nor had he asked that the question be
stopped prior to making his incriminating statements.
The trial judge found nothing in the evidence and record
TT
App. 62
before him to suggest that anything occurred to overbear
the will of-Smith-with-respect to his confessions. See
oral ruling on defendant Smith’s motion to suppress
confession denied, Exhibit "E" to Docket Entry No. 7.
Superior Court Judge Ripley made the following
findings: Smith had initially been advised from a
Miranda card by Investigator Jones at the airport and
was again readvised by Investigator Stearns; that Smith
had signed the form of Miranda waiver card; that at
page 2 of the confession there was an extensive discus-
sion and warning of Miranda rights; and that Smith’s
remarks on the occasion underscored the fact that he
knew that he had a right to counsel. Judge Ripley
found from the record that Smith was undecided as to
whether he needed an attorney and elected to go for-
ward with making statements. He also found that the
waiver was made knowingly and voluntarily and without
coercion or mental impairment.
The Court of Appeals of the State of Alaska set
forth the interview in some detail beginning at page 4 of
the Memorandum Opinion and Judgment, No. 641 - July
25, 1984, as follows:
STEARNS: We have tipped the scales
of . . . of being anymore than what we
were before, and that’s asking questions
about dope. ...
SMITH: Every .. . everything’s fine.
STEARNS: Dealings and Ron Cole.
App. 63
SMITH: Everything’s fine. I under-
stand you need information and I’m
willing to supply everything I know.
STEARNS: Okay. So, the answer to
the question of whether you had any
involvement with the death of RON
COLE is no you did not, is that right?
SMITH: That’s right.
STEARNS: Okay, and you have no
idea who did kill RON COLE?
SMITH: No.
STEARNS: And you suspect no one
of killing RON COLE that you per-
sonally know or have any contact with?
SMITH: I wouldn't be able to give you
a suspect, no.
STEARNS: Okay, and I guess the
question that I asked that set you off to
wondering what CHUCK and I were
up to ah... I... I guess what |
asked was, you didn’t get yourself into
a position where you had to protect
yourself and that... that tended
to... to at least make you want to
ask some question of us.
SMITH: It... it, well, I’m not stupid,
App. 64
okay.
STEARNS: Okay.
SMITH: I saw... saw your line of
questions. I saw where you were head-
ing.
STEARNS: Un’huh.
SMITH: It’s alright.
STEARNS: Okay. So, I take it that
you did not get yourself in a position
where you had to protect yourself, is
that a... is that yes or no?
SMITH: No....
STEARNS: Okay, so umm... we're
not in a park where you're . . . you're
afraid to say anything that you're out
there and the things went bad and you
had to protect yourself, that’s out of
the question, you didn’t have anything
to do with his death.
SMITH: Can I talk to a lawyer? At
this point, I think maybe you're looking
at me as a suspect, and I should talk to
a lawyer. Are you looking at me as a
suspect?
MILLER: Well, it... it wouldn’t be
fair to you to say that we weren't
App. 65
MIKE.
STEARNS: Yea.
SMITH: Because if you are, it’s. . . it’s
@ serious charge and I think I should
have counsel, if that’s where... what
you're... where you’re coming from,
just tell me if you are.
MILLER: Well MIKE, you yourself
pointed out that . . . that anybody that
might be found in that notebook would
certainly have reason enough to kill
him.
SMITH: Yeah. I admitted, my name
is probably in it.
STEARNS: And certainly you .. . you
know, let... let’s face it, you’re a
person who dealt with RON COLE,
and you're a person who owed him a
lot of money and if you for one minute
sat down in a room here after us ex-
plaining exactly what our job was and
what we were doing, if you for one
minute didn’t picture yourself as a
suspect then, okay, then I would cer-
tainly forsee that if you’ve reached that
point in your mind now, you're . . . we
have no choice but to say well, he’s .. .
he’s told us everything about what the
suspect should look like, and we’re
sitting here saying, well you're...
App. 66
you're right, we think that’s probably
what the suspect looks like too.
SMITH: Yeah.
STEARNS: Okay. And if you for one
minute think that we don’t think the
suspect is someone who is friends with
him, someone who dealt with dope and
someone who was in debt to him, then
absolutely, you’re correct.
SMITH: Sure.
STEARNS: And we have no choice
but . . . but to eliminate suspects right?
I mean, that’s our job.
SMITH: That’s fine.
STEARNS: Okay. And that’s where
we're coming from.
SMITH: I know, but I’m saying there’s
probably a . . . at least a dozen people
like me that have known him for years
and in the same position. They owe
him money. They’re friends; in the
same position as I am.
STEARNS: And I don’t, you know, I
don’t for one minute at all, okay, want
to interrupt your... your train of
thought or your needs or your neces-
sities, okay, and we talked about the
App. 67
rights sheet, you’re aware of them; been
advised of your rights at least twice today,
okay.
SMITH: Yes.
STEARNS: And you signed it and
you’re aware... and you’re aware that
it says on there any time you feel that
you want counsel, that’s it, okay. So,
don’t misunderstand CHUCK and I.
You want counsel, well... by God
don’t... don’t hesitate to get yourself
counsel. You want to talk to us about
RON COLE’S dealings, you want to talk
to us about the murder and suspects,
anybody, will talk to you. If you want a
lawyer to do that, then feel free. Okay.
I don’t think... I don’t think...
SMITH: IJ don’t know if I need one or
not. That’s why I’m trying to make my
mind up, if I need to go that route for
myself, you know.
MILLER: Alright. Well, you... you
heard what . . . you heard what I said.
I... you yourself say anybody that
would be in that notebook could
be ... could be logical suspect, and
you certainly agree, at least with our
line of reasoning, in picturing the kind
of person we have as a suspect, an
associate, somebody that dealt dope
and somebody that’s in notebook and
App. 68
in debt up to his ass.
SMITH: Um-hum.
MILLER: Now MIKE, you've sit here
for the last hour or so and we've...
we’ve talked about your background;
you've been pretty open and honest at
least what we know about you, okay.
SMITH: Um’hum.
MILLER: Ah, in regards with your
dealings with RON... [Emphasis
added.]
LEGAL CONCLUSION REACHED BY STATE COURT
On appeal to the Court of Appeals of the State
of Alaska, Smith argued that Judge Ripley had erred in
not suppressing the confession which he made to
Troopers Stearn and Miller on the basis that during the
interview he had indicated that he might want an attor-
ney. The Alaska Court of Appeals, citing Nash v.
Estelle, 597 F.2d 513, 517 (Sth Cir.) (en banc), cert.
denied, 444 U.S. 981 (1979) and Edwards v. Anzona, 451
U.S. 477, 486 n.9 (1981), held that where a suspect’s
desires are expressed in equivocal terms, it is permissible
for the questioning officer to make further inquiry in
order to clarify the suspect’s desires. The Court of
Appeals recognized that an analysis of the confession
issue required particular attention to the facts of the
App. 69
interview to determine whether, in fact, Smith’s request
was equivocal or amounted to an invocation of his right
to an attorney, thereby requiring the officers to cease
interrogation..
ANALYSIS OF FEDERAL CONSTITUTIONAL CLAIM
| In his federal habeas petition, Smith asserts that
his confession should have been excluded because the
Court of Appeals misapplied the federal constitutional
standard dealing with a suspect’s right to counsel. The
federal habeas court is bound by the State Court’s
findings of fact unless such finding is shown by con-
vincing evidence to be erroneous. The ultimate issue of
invoking or waiving a right to counsel is a mixed ques-
tion of law and fact.
The presumption of correctness must be applied
to the factual component of the questions presented by
this federal habeas petition. Price v. Wainwnght, 37
Crim. L. Rep. 2216 (11th Cir. 1985). The Court of
Appeals reached the legal conclusion that Smith had not
invoked his right to an attorney since his request con-
| cerning an attorney was equivocal.
Where an interviewee states that he wants an
attorney, interrogations must cease until an attorney is
present. Miranda v. Arizona, 384 U.S. 436, 474 (1966);
Edwards v. Arizona, 451 U.S. 477, 485 (1981); Michigan
v. Moseley, 423 U.S. 96, 104 n.10, 109-111 (1975).
Miranda prohibits the prosecution from using statements
stemming from custodial interrogation unless prior to
App. 70
any questioning, the person is warned that "he has a
right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a
right to the presence of an attorney, either retained or
appointed.” Jd. at 444. In his arguments to the Court
of Appeals, Smith argued that the investigators had
ignored his request for an attorney, did not stop the
interrogation, but continued to elicit responses from him
to "subjugate" him to the will of his examiners and
thereby undermine his privilege against compulsory self-
incrimination. The Court of Appeals upheld the trial
court’s decision that Smith had not requested an attor-
ney in such a manner as to require the interrogation to
cease.
Petitioner Smith relies upon Smith v. Illinois,
supra, as dispositive of his petition for habeas corpus
relief. In that case, the Supreme Court granted cer-
tiorari in a case wherein the petitioner, Steven Smith,
contended that the police had improperly elicited a
confession from him after he clearly had requested the
assistance of counsel and that the confession should have
been suppressed by the trial court as violative of
Miranda v. Anzona, supra, and Edwards v. Anzona, supra.
Previously, the Illinois Supreme Court had held that
Steven Smith’s responses to continued police questioning
rendered his initial request for counsel "ambiguous"
thereby not requiring the officers to terminate their
questioning. The Supreme Court noted that under
Miranda and Edwards, an accused’s post-request re-
sponses to further interrogation may not be used to cast
App. 71
doubt on the clarity of his initial request for counsel.
The Supreme Court found no ambiguity in Smith’s initial
request and reversed his conviction of armed robbery.
Smith v. Illinois acknowledged the existence of
a conflict among the courts that had previously
addressed the relevance of alleged ambiguities or
equivocations that either preceded an accused’s pur-
ported request for counsel or were a part of the request
itself.! In Smith, the Supreme Court distinguished the
case before it stating that neither of these conflicting cir-
cumstances pertained. "The courts below were able to
construe Smith’s request for counsel as ’ambiguous’ only
by looking to Smith’s subsequent responses to continued
police questioning and by concluding that, ’considered in
total,’ Smith’s ’statements’ were equivocal.” Jd. at 494.
[emphasis in original]. The Supreme Court held that a
statement is either an assertion of the right to counsel or
it is not. "Where nothing about the request for counsel
or the circumstances leading up to the request would
render it ambiguous, all questioning must cease." This
restraint on police interrogation, the court noted, had
previously been set forth as a prophylactic rule designed
to protect an accused in police custody from being
badgered by police officers. See Id. n.2, citing Miranda
v. Anzona, supra; Fare v. Michael C., 442 U.S. 707, 719 -
(1979) (an accused’s request for an attorney is per se an
invocation of his Fifth Amendment rights requiring that
all interrogation cease); Rhode Island v. Innis, 446 U.S.
291, 298 (1980); Wynck v. Fields, 459 U.S. 42, 45-46
(1982) (per curiam); Edwards v. Anzona, supra; Oregon
=.
App. 72
- v. Bradshaw, 103 S.Ct. 2830, 2834 (1983); and the more
recent case of Solem v. Strumes, 104 S.Ct. 1338 (1984).
In Smith v. Illinois, supra, the Supreme Court
found that the detective did not even initially terminate
their questioning once Steven Smith had invoked his
right to counsel. The court construed Smith’s statement:
"Ugh, yeah. I'd like to do that" which was made after
Smith had learned that he had the right to his counsel’s
presence as an unambiguous request for counsel. The
Supreme Court disapproved continued police questioning
after a nonambiguous request for counsel is made re-
gardiess of whether such continued inquiry in retrospect
would have a tendency to dissipate the accused’s initial
request for counsel. "No authority,... permits the
interrogator to proceed... as if the defendant had
requested nothing in the hope that the defendant might
be induced to say something casting retrospective doubt
on his initial statement that he wished to speak through
an attorney or not at all." /d. at 495 quoting dissenting
Justice Simon of the Illinois Supreme Court.
The Alaska Court of Appeals recognized the
need to determine whether, in fact, Smith’s request for
an attorney was equivocal or whether it constituted an
invocation of his right to an attorney. That court agreed
with Judge Ripley’s conclusion that Smith’s remarks
about an attorney viewed in context indicated that Smith
was undecided whether to invoke the right to counsel.
The Court of Appeals affirmed the District Judge’s
denial of the suppression motion only in the context of
all of the circumstances. Since Michael Smith made
App. 73
more than one reference to an attorney, it is not clear
whether the Court of Appeals used Smith’s statements
made after these particular requests to determine the
clarity of his previous remarks concerning counsel.
Smith v. Illinois holds that an accused’s post-request
responses to further interrogation may not be used to
cast doubt or clarity on his initial request for counsel.
The Court of Appeals determined that Smith’s
statements regarding the presence of an attorney col-
lectively did not constitute a present request for counsel.
Whether Michael Smith effectively asserted his right to
counsel at any time during the colloquy in which the
incriminating statements were made is a question of
federal constitutional law. Brewer v. Williams, 430 U.S.
387 (1978). The issue requires an application of con-
stitutional principles to the facts as found. /d. at 1242;
Brown v. Allen, 344 U.S. 443, 507 (1953).
After the investigators responded to Smith’s
question: "Are you looking at me as a suspect?" by
indicating yes they were, the prior condition imposed by
Smith, that is, that he wanted counsel if he were being
considered a suspect had been met. Constitutional law,
however, does not require the troopers to recognize the
fulfillment of this condition as an invocation of the right
to counsel without seeking further clarification. Miranda
prohibits only continued interrogation. All communica-
tion between a suspect and a law enforcement officer is
not barred after the suspect asserts his right to counsel.
United States v. Rodriquez-Gastelum, 569 F.2d 482 (9th
Cir. 1978) (en banc).
App. 74
In the instant case, during his interrogation by
Investigators Stearns and Miller, Michael Smith first
raised the topic of an attorney be asking if he could talk
to a lawyer.2> Smith explained to the investigators why
he had asked about an attorney by stating that he
thought they were looking at him as a suspect to the
murder.* Smith specifically asked if they were looking
at him as a suspect. Trooper Miller answered Smith’s
second question by telling him that he was a suspect.
Trooper Stearns agreed. The Alaska Courts treated
this dialogue by Smith as insufficient to constitute a
request for counsel. Unlike the statements made by
Steven Smith in Smith v. Illinois, supra, the questions
asked by Petitioner Michael Smith do not suggest an
unequivocal invocation of counsel.’ The investigators
responded by immediately addressing only the latter
question of whether they were looking at Smith as a
suspect. Upon receiving an affirmative answer, Smith’s
remarks were that if the troopers were looking at him
as a suspect, then he thought he should have counsel.®
Unlike the statements considered in Smith v. Illinois,
these statements regarding counsel were conditional. A
statement of conditional intent is an ambiguous state-
ment, at least in the context of this dialogue. The
colloquy proceeded with the investigators explaining to
Smith why he was considered a suspect. Investigator
Stearns then reminded Smith of the advisement of rights
form that he had signed. Stearns told Smith that if he
wanted counsel not to hesitate to get counsel, but that
if he wanted to talk about the murder and suspects, then
App. 75
the officers would talk to him. Smith responded: "I
don’t know if I need one or not. That’s why I’m trying
to make my mind up, if I need to go that route for
myself, you know.”
None of these remarks of petitioner Michael
Smith legally constituted an assertion of the right to the
assistance of counsel such as would require interrogation
| to cease under Smith v. Illinois, or Edwards v. Arizona,
or any other Supreme Court case cited in the Smith
opinion. Smith’s reference to his right to counsel was
ambiguous with respect to the assertion of such a right,
and Edwards v. Anzona and Miranda v. Arizona do not
require that all questioning of Smith as a suspect should
have ceased at that point.
In Edwards v. Arizona, the court found that
Edwards had expressed his desire to deal with the police
only through counsel. Edwards at 484-85. Edwards
holds that a criminal defendant’s rights are violated by
use of a confession obtained by police-instigated inter-
rogation without counsel present after an attorney has
been requested. In the instant case, Michael Smith did
not invoke his right to counsel in the first instance;
rather his asserted request for counsel itself was am-
biguous. In such situations, the courts have addressed
the issue of whether further questioning should have .
been limited to the ambiguities raised by the suspect and
whether there was a subsequent knowing and intelligent
| waiver of the right to counsel. The Ninth Circuit has
drawn a distinction between "an inquiry for the limited
purpose of clarifying whether the suspect is invoking his
App. 76
right to remain silent" or “has changed his mind regard-
ing an earlier assertion of his rights.” Questioning
aimed at eliciting incriminating statements concerning the
very subjects on which the defendant has invoked his
right is prohibited by Rhode Island v. Innis. When it is
unclear whether a suspect has indeed invoked his right
to silence, the interrogator can ask questions designed to
clarify whether or not a suspect intends to talk. See e.g.,
Nash v. Estelle, 597 F.2d 513, 517 (Sth Cir.) (en banc)
(suspect’s intent unclear when he expressed contradictory
desires, "a desire for counsel and a desire to continue
the interview without counsel."), cert. denied, 444 U.S.
981 (1979). See also United States v. Riggs, 537 F.2d
1219, 1222 (4th Cir. 1976) (suspect’s statement that he
had "no information" could be interpreted "as a mere
declaration of ignorance not precluding further coopera-
tion with the investigation.") In Riggs, the officers
continued to interrogate Riggs instead of attempting to
clarify his intent. The Fourth Circuit upheld as not
clearly erroneous the trial court’s finding that Riggs’
statement was not only unclear but also more plausibly
an expression of his ignorance than an invocation of his
rights. The Fourth Circuit admonished the police,
however, next time to inquire of the suspect as to the
correct interpretation of his statement. /d. at 1222.
Miranda approves of the use of clarifying questions. See
384 U.S. at 485. Rhode Island v. Innis, supra, instructs
that the focus of the Miranda safeguards should be on
the perceptions of the suspect rather than on the intent
of the police. See United States v. Webb, 755 F.2d 382,
App. 77
388 (Sth Cir. 1985). Smith v. Illinois, supra, indicates
that an unintentional violation of Edwards v. Arizona is
a violation nonetheless.
Nash v. Estelle, supra, is distinguishable from the
instant case on its facts. In Nash, the Fifth Circuit, en
banc, upheld the district court’s determination that the
habeas petitioner had made an unambiguous request for
counsel during the following exchange of remarks:
Nash: If I want a lawyer present, I just
put down [on the waiver form] I want
him present? (Officer) Files: Please
just tell us about it. Anytime we are
talking and you decide that you need
somebody else here, you just tell me
about it and we will get somebody up
here. Nash: Well I don’t have the
money to hire one, but I would like,
you know, to have one appointed.
Files: You want one to be appointed
for you? Nash: Yes sir."
The en banc panel found that Nash’s position
regarding counsel was “equivocal” in that he expressed
conflicting desires to have counsel and to continue the
interrogation without counsel, so that Officer Files was
entitled to continue the interview by asking "clarifying"
questions. The four dissenting judges thought that the
supposed need for clarification arose from interrogation
that continued after Nash requested counsel. The dis-
senters found no equivocalness inherent in Nash’s initial
App. 78
request for counsel based upon a reading of the earlier
transcript.
The en banc panel held that if a suspect utters
an ambiguous statement that is unclear to the interrogat-
ing officer as to whether the suspect is in fact asserting
the right to counsel, the officer is free to ask questions
in order to ascertain what the suspect means. See
United States v. Riggs, supra. This does not mean that an
ambiguous statement that might be construed as a
request for counsel is a free reign to the interrogator to
ignore the request and proceed with the interrogation.
Once the privilege to remain silent and the absence of
counsel has been asserted, an interrogator must not seek
its retraction by continued questioning. See United States
v. Massey, 550 F.2d 300, 308 (Sth Cir. 1978); United
States v. Crist, 435 F.2d 354, 357 (7th Cir. 1970); United
States v. Clark, 499 F.2d 802, 807 (4th Cir. 1974).
Miranda v. Anzona discourages any such attempts and
renders any purported waiver of counsel invalid. See
also Maglio v. Jago, S80 F.2d 202 (6th Cir. 1978) (equi-
vocal request for an attorney which the interrogating
officer understood to be a request for the presence of
an attorney and interrogator continued questioning.)
Where a suspect's desires are expressed in an equivocal
fashion, it is permissible for the questioning officer to
make further inquiry to clarify the suspect’s wishes.
United States v. Rodriguez-Gastelum, supra.
Subsequent to Smith’s equivocal statements
regarding his desire to have counsel, the dialogue con-
tinued with a discussion as to the reasons for the focus
App. 79
of the investigation upon Smith. Investigator Stearns
told Smith where the investigators were "coming from"
and then he brought up the matter of the advisement of
rights form which had apprised Smith of his rights.
Investigator Stearns reminded Smith that the form
provided that if at any time he felt that he wanted
counsel, then it was o.k. to request counsel and he
should not hesitate to get himself counsel. In addition
to reminding him of the advisement of his rights,
Investigator Stearns gestured to a telephone nearby
which defendant was free to use if he wished to call an
attorney. Smith’s immediate response was the following:
"I don’t know if I need one or not. That’s why I’m
trying to make my mind up, if I need to go that route
for myself, you know.” Soon after this exchange of
remarks occurred, the troopers turned off the tape re-
corder to get some coffee. During this period of time,
Smith admitted that he killed the Coles. The tape
recorder was turned on again and Smith repeated his
confession.
Subsequent to Smith’s initial reference to coun-
sel, the Troopers made statements as to the focus of
their investigation and then as to Smith’s right to coun-
sel. Their statements did not embrace the form of
further interrogation. Informing Smith of the available
evidence against him in response to his question as to
whether he was a suspect did not fall within the realm
of interrogation. See United States v. Davis, 527 F.2d
1110 (9th Cir. 1975). The trooper’s statements were not
reasonably likely to discourage Smith from asserting his
App. 80
rights to counsel or likely to have any undue influence
or coercive effect on Smith’s right to request the pre-
sence of counsel during an interrogation. Investigators
Stearns and Miller might have focused more directly on
Smith’s equivocation as to whether he sought to invoke
his right to counsel. However, their brief continuation of
their discussion of the type of person they considered as
a suspect was not error of a constitutional magnitude.
Reasonable latitude must be afforded to an
interrogating officer to formulate answers to an accused’s
questions that contain an equivocal or ambiguous refer-
ence tc the availability of counsel. Since Steven Smith
continued to state that he was not sure whether he
wanted an attorney after it was clear that he understood
and had been advised of his right to have counsel, the
officers were not required to cease their interrogation.
Thus, Smith did not sufficiently invoke the right to
counsel and this court need not determine whether the
record would support a valid waiver of that right if the
issue were present. At no time during questioning did
Smith unequivocally indicate that he wished to remain
silent. Investigators Stearns’ and Miller’s subsequent
questioning did not exceed the permissible bounds of the
“equivocalness exception." Compare United States v.
Rodnguez-Gastelum, supra; Pierce v. Cardwell, 572 F.2d
1339 (9th Cir. 1978); Nash v. Estelle, supra; United States
v. Pheaster, 544 F.2d 353 (9th Cir. 1976).
For the foregoing reasons, the Petition for Writ
of Habeas Corpus should be DENIED. IT IS SO
RECOMMENDED.
App. 81
DATED this 23rd day of October, 1985 at
Anchorage, Alaska.
/s/ John D. Roberts
United States Magistrate
Pursuant to Magistrate Rule 12(C), a party
seeking to object to this proposed finding or recommen-
dation shall, within 10 days after the date of service of
a copy of the recommendation, file written objections
with the Clerk of the U.S. District Court or else the
right to further appeal may be waived. Responses to
the objections shall be filed within ten (10) days after
receipt of the objections. The parties shall otherwise
comply with the provisions of Magistrate Rule 12(C).
FOOTNOTES
1. Some courts took the approach that all ques-
tioning must cease upon any reference to counsel,
however, ambiguous or equivocal whereas other courts
permitted a limited inquiry for clarification after an
accused makes a statement that arguably might be
construed as a request for counsel.
2. Webster’s New World Dictionary (2d ed. 1980)
defines "equivocal" to mean: "(1) having two or more-
meanings; purposely vague, misleading, or am-
biguous ...; (2) uncertain; undecided; doubtful... ;
(3) suspicious; questionable ... ."
3. Smith: Can I talk to a lawyer?
App. 82
4. (Smith: continued) At this point, I think
maybe you’re looking at me as a suspect, and I should
talk to a lawyer.
5. (Smith continued): Are you looking at me as a
suspect?
6. Stearns: Yeah.
7. If one considers only the declarative statement
and not its immediate context, then the pertinent portion
of that statement reads: "At this point, I think... I
should talk to a lawyer." Although these words by
themselves appear to be an unequivocal invocation of
the right to counsel, we do not deem it appropriate to
consider the words selectively since they were spoken in
a single utterance which included two questions.
8. Smith: Because if you are, it’s . . . it’s a serious
charge and I think I should have counsel, if that’s
where ... what you're ... where you're coming from,
just tell me if you are." [emphasis supplied].
App. 83
IN THE UNiTED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MICHAEL T. SMITH,
Petitioner,
v.
COMMISSIONER,
DEPARTMENT OF
CORRECTIONS, STATE
OF ALASKA,
SUPPLEMENTAL
RECOMMENDATION
)
)
)
)
)
ROGER ENDELL, ) No. A84-583 Civil
)
)
)
)
)
)
Respondent.
)
Pursuant to Local Magistrate Rule 12(c), peti-
tioner’s Objections to the Magistrate’s Recommendation
Regarding Petition for Habeas Corpus together with the
State respondent’s response have been duly considered
by the United States Magistrate. In his Objections, the
petitioner asserts that in his colloquy with Investigator
Stearns, Smith essentially stated that if you are looking
at me as a suspect (then) I want to talk to a lawyer.
Smith’s remarks, however, do not constitute an un-
equivocal assertion of the right to counsel.’ Smith’s
remarks did not unambiguously request counsel either
conditionally or unconditionally. The Ninth Circuit Court
of Appeals has recently commented on this area of the
law in United States v. Pierre Fouche, _ F.2d ___ (9th
App. 84
Cir., November 19, 1985) as follows:
The Supreme Court has not ad-
dressed what constitutes a _ valid
assertion of the right to counsel....—
In Edwards, the Court refers to a right
to counsel that has been "specifically
invoked." 451 U.S. at 482. In Brewer
v. Williams, 430 U.S. 387, 404-05
(1977), the Court speaks of "clear [] ex-
pressions" of desire for the presence of
counsel. No Ninth Circuit cases pro-
vide guidance.
The Fouche court rejected the position taken by
the Sixth Circuit that an equivocal assertion of counsel
is sufficient under Miranda v. Anzona, 384 U.S. 436
(1966) to invoke the right to counsel.2 The Ninth
Circuit has adopted as a more reasonable approach that
taken by the Fifth Circuit which holds that where a
suspect makes an equivocal assertion of counsel, the
police must cease all questioning, except that they may
attempt to clarify the suspect’s desire for counsel.
"Questions aimed at clarifying the desire for counsel
must be strictly limited to that purpose; they may not be
used to elicit incriminating information. [citations
omitted]." Fouche, supra. Law enforcement conversa-
tions that are fairly designed to clarify an ambiguity
regarding an equivocal request for counsel do not auto-
matically void a subsequent confession. Jd. Thus,
Investigator Stearns did not act improperly by addressing
the ambiguity of whether or not Smith was a suspect as
App. 85
well as reminding Smith of the previous advisement of
rights that he received from the Investigator since this
questioning was directed toward clarifying Smith’s desire
for counsel. -
WHEREFORE, the Magistrate declines to
modify his Recommendation.
DATED this 20th day of December, 1985 at
Anchorage, Alaska.
/s) JOHN D. ROBERTS
United States Magistrate
Pursuant to Magistrate Rule 12(C), a party
seeking to object to this proposed finding or recommen-
dation shall, within 10 days after the date of service of
a copy of the recommendation, file written objections
with the Clerk of the U.S. District Court or else the
right to further appeal may be waived. Responses to
the objections shall be filed within 10 days after receipt
of the objections. The parties shall otherwise comply
with the provisions of Magistrate Rule 12(C).
App. 86
FOOTNOTES
1. Smith: Because if you are, it’s . . . it’s a serious
charge and I think I should have counsel, if that’s
where ... what you're ... where you're coming from,
just tell me if you are.
See Memorandum Opinion and Judgment of the Court
of Appeals of the State of Alaska (No. 641, July 25,
1984), p. 5, a copy of which is attached to Docket Entry
No. 7.
2. See Maglio v. Jago, 580 F.2d 202, 205 (6th Cir.
1978) (citing Miranda’s requirement that questioning
cease if a suspect "indicates in any manner” that he
wishes to consult an attorney before speaking.
App. 87
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MICHAEL T. SMITH,
Petitioner,
v.
COMMISSIONER,
DEPARTMENT OF
CORRECTIONS, STATE
OF ALASKA,
ORDER
(Recommendation of
Magistrate Adopted)
)
)
)
)
.
ROGER ENDELL, ) No. A84-583 Civil
)
)
)
)
)
Respondent. )
)
Petitioner seeks a writ of habeas corpus under
28 U.S.C. § 2254 as an Alaska state prisoner. Petitioner
has exhausted all state remedies available to him. He
raised a question as to the use of a confession obtained
by authorities at a time when Petitioner was not repre-
sented by counsel. The question raised is whether
Petitioner effectively requested the assistance of counsel.
The United States Magistrate has reviewed
Petitioner’s arguments and authorities and has filed an
extensive memorandum recommending denial of the
petition.
Having reviewed the Magistrate’s recommenda- _
tions as well as his supplemental recommendations, the
Court is satisfied that Petitioner’s constitutional right to
App. 88
counsel was not effectively invoked, and therefore the
questioning which preceded and led to his confession
was permissible. The recommendation of the United
States Magistrate is adopted as supplemented. The
petition for a writ of habeas corpus is denied.
DATED at Anchorage, Alaska, this 20th day of
February, 1986.
/s/ United States District Judge
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