Opposition Brief — Biddy v. Diamond
Supreme Court brief1976
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i> Renan Wie, a 8
IV
1970)
United States v. Hale, 397 F.2d 427 (7 Cir. 1968) 12
United States v. Hall, 421 F.2d 540 (2 Cir. 1969),
cert. denied, 397 U.S. 990, 25 L.Ed.2d 398, 90
S.Ct. 1123 (1970)
Sp ANSSOR RES EAR KER OURS EA esse 29
United States v. Hayes, 385 F.2d 375 (4 Cir. 1967),
cert. den. 390 U.S. 1006, 88 S.Ct. 1250, 20
SAME NS A 0s cAN RAMEE CER RV RO Kee eee cece 36
United States v. Hodge, 487 F.2d 945 (5 Cir.
RATE OL eee Fore err eee etary Pree eee 10, 17
United States v. Kinsey, 352 F.Supp. 1176 at 1178
MD Chee ne kas cases bdebiewcaeses 6
United States v. Knight, 261 F.Supp. 843 (E.D.
Pe eek gogo ee oc elt ote eek eee lot. Te 31
United States v. Littlepage, 435 F.2d 498 (5 Cir.
1971), cert. den. 402 U.S. 915, 91 S.Ct. 1374,
28 L.Ed.2d 657, reh. den. 402 U.S. 1013, 91
es Ss ee GE MED cb ae cncintdcenannes 31
United States v. Manni, 270 F.Supp. 103 (D.
Mass. 1967), Aff'd 391 F.2d 922 (1 Cir. 1968) ... 31
United States v. Mansfield, 318 F.2d 961 (7 Cir.
1967)
United States v. Montos, 421 F.2d 215 (5 Cir.
1970), cert. den. 397 U.S. 1022, 90 S.Ct. 1262,
pg ' 3 AS res rr 29
United States v. Osterburg, 423 F.2d 704 (8 Cir.
1970), cert. den. 399 U.S. 914, 90 S.Ct. 2216,
EOE. kb 6.0. 6n5s5 0s Cane udesanune ces 33
United States v. Priest, 409 F.2d 491 (5 Cir. 1969) 14
United States v. Slaughter, 366 F.2d 833 (4 Cir.
1966)
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Vv
United States v. Springer, 460 F.2d 1344 (7 Cir.
PE 400s de ewn eee Sekine babies cea kennneewes
United States v. Young, 471 F.2d 109 (7 Cir.
1972), cert. den. 412 U.S. 929, 93 S.Ct. 2755,
fe * 3 Frere errr rrr errr
Wilson v. United States, 398 F.2d 331 (5 Cir.
RA Pe Sreesanth ere
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In The
Supreme Court of the United States
OCTOBER TERM 1975
No. 75-1006
CAROLEE BIDDY,
Petitioner,
vs.
FRED DIAMOND, SHERIFF, JACKSON COUNTY
JAIL, and JACK REED, WARDEN OF THE
MISSISSIPPI STATE PENITENTIARY,
Respondents.
PETITION FoR Writ oF CERTIORARI TO THE UNITED
States Court oF APPEALS FOR THE FIFTH CIRCUIT
BRIEF IN OPPOSITION
OPINIONS BELOW
The opinion of the Mississippi Supreme Court is
reported as Biddy v. State, 277 So.2d 115 (Miss. 1973).
The opinion of the Court of Appeals for the Fifth Cir-
cuit is reported as Biddy v. Diamond, 516 F.2d 118
(5th Cir. July 18, 1975).
2
JURISDICTION
The jurisdiction requisites are adequately set forth
in the Petition.
STATEMENT OF THE CASE
Petitioner, Carolee Biddy, was indicted by the
Grand Jury of Hinds County, Mississippi, on April 22,
1971, for the crime of murdering her five-year-old
mentally-retarded step-daughter, Mona Biddy. On March
22, 1971, Petitioner, by and through her attorneys,
filed a motion for change of venue in view of the pre-
trial publicity which had surrounded the death of the
deceased, and on April 2, 1971, the Circuit Court of
the First Judicial District of Hinds County, Mississippi,
entered an order changing the venue to the Circuit
Court of Jackson County, Mississippi.
Petitioner was tried in that court; however, a mis-
trial was declared when the jury was unable to agree
on a verdict. Petitioner was re-tried in that court, and
on September 5, 1972, the petit jury returned a verdict
of guilty of manslaughter. For her crime, Petitioner
was sentenced to serve a term of twenty years in the
Mississippi State Penitentiary wherein she is presently
incarcerated.
On January 8, 1973, the Supreme Court of Mis-
sissippi, by written opinion, affirmed Petitioner’s con-
viction. A petition for rehearing was duly filed, and
on February 26, 1973, the Supreme Court of Missis-
sippi, by a written opinion wherein all the Judges con-
curred, denied the petition for re-hearing. The opinion
of the Supreme Court of Mississippi and the opinion
of the Court in denying the petition for re-hearing are
reported as Biddy v. State, 277 So.2d 115 (Miss. 1973).
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3
A petition for writ of certiorari was then filed in
the Supreme Court of the United States. After review-
ing the precise issue which is again presented here, the
petition was denied on October 7, 1973. Biddy v. Mis-
sissippi, 414 U.S. 866, 38 L.Ed.2d 118, 94 S.Ct. 46,
and on December 3, 1973 the Supreme Court denied the
petition for rehearing. Biddy v. Mississippi, 414 U.S.
1087, 38 L.Ed.2d 493, 94 S.Ct. 610.
Petitioner then filed a petition for writ of habeas
corpus with the United States District Court for the
Southern District of Mississippi pursuant to 28 U.S.C.
§2241 et seq. Pursuant to that petition evidentiary
hearings were conducted by the District Court on Febru-
ary 3, 1974, and on April 11, 1974.
On April 23, 1974, the District Court entered a
written opinion denying the application for writ of
habeas corpus. A copy of the opinion is attached to
Petitioner's brief as Appendix C. A notice of appeal
was filed and a certificate of probable cause was signed
by the District Judge as required by 28 U.S.C. §2253.
On July 18, 1975 the United States Court of Ap-
peals for the Fifth Circuit affirmed the decision of the
District Court. A copy of the opinion is attached to
Petitioner's brief as Appendix D.
STATEMENT OF THE FACTS
The facts of this case as reported in Biddy v.
Diamond, 516 F.2d 118 (5th Cir. 1975) are correct and
are adopted here. Where necessary, a more complete
recitation of the factual situation appears in the argu-
ment.
OE
me ee oe.
P plat
jE REA SPY EL ATIAS
4
ARGUMENT
Whether Appellant Knowingly Waived Her Right to
Remain Silent and Her Right to the Presence of Her
Attorney When She, After Twice Executing Waivers
and Then Requested Her Attorney, Stated That She
Understood Her Rights and Gave a Statement
The uncontradicted proof before this Court is that
on December 15, 1970, Petitioner, a 32-year-old high
school graduate who had worked as a secretary for an
engineering firm, voluntarily went to Police Head-
quarters where she was advised of her rights; that her
rights were then read to her; that she was questioned
individually about each right and stated that she under-
stood them; and that she signed a written waiver.
[Reeves D.C. Tr. 194; Price 274-275; 2d Tr. 340, 351,
300, 366].
It is also uncontradicted that she volunteered to
take a polygraph examination that afternoon; that her
rights were again read to her; and that she signed
another waiver.
The evidence before this Court also shows that she
was not again questioned until December 27, 1970 [D.C.
Tr. 200], on which day she was asked if she understood
her rights and she replied that she did [(Reeves) D.C.
Tr. 206-207, (Price) 280].
Assuming, but not admitting, the Petitioner was
in custody or deprived of her freedom in a significant
way on December 27, 1970, were further Miranda warn-
ings required?
Perhaps this question is best answered by People
v. Hill, 39 [ll.2d 125, 233 N.E.2d 367 (1968), wherein
the court stated:
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5
“To adopt an automatic second-warning system
would be to add a perfunctory ritual to police pro-
cedures rather than providing the meaningful set
of standards envisioned by Miranda. Gorman v.
United States, 380 F.2d 158, 164 (lst Cir.).”’
Failure of police to repeat the Miranda warnings
prior to the taking of the defendant's third and fourth
“in custody” statements was assigned as error in State
v. Rowe, 468 P.2d 100 (Wash. 1970). The court stated:
“Defendant was properly informed of his rights at
the time of his arrest and again before giving his
first and second written statements. Miranda does
not require the police to make repeated recitations
of a defendant's constitutional rights before the
taking of each subsequent statement. State v.
Blanchey, 75 Wash. Dec.2d 935, 54 P.2d 841
(1969); State v. Lucia, 74 Wash.2d 819, 447 P.2d 606
(1968). Having been informed of his rights three
times and having intelligently waived them, state-
ments taken within the next 48 hours cannot be
said to have been made without knowledge of his
rights.”’
In Miller v. United States, 396 F.2d 492 (8th Cir.
1968), the court was faced with the issue of whether
Miranda warnings must be given each time the _ in-
terrogation process resumes. The court stated:
“It is difficult to lay down a rule of general appli-
cation, and we will not attempt to do so here. In
each case the ultimate question is: Did the de-
fendant, with a full knowledge of his legal rights,
knowingly and intelligently relinquish them?’ (396
F.2d at 496).
bo “line RE RAE RELICS 7
6
United States v. Anthony, 474 F.2d 470, 473 (5th
Cir. 1973) held: “there is no requirement that an ac-
cused be continually reminded of his rights once he
has intelligently waived them.”
As stated by the First Circuit in Gorman v. United
States, 380 F.2d 158, 164 (1st Cir. 1967):
“In the first place, advocacy of an automatic sec-
ond-warning system misunderstands and down-
grades the warnings required by Miranda. Their
purpose was not to add a perfunctory ritual to the
police procedure but to be a set of procedural safe-
guards ‘to inform accused persons of their right of
silence and to assure a continuous opportunity to
exercise it. * * * While the police interrogators
must faithfully carry out Miranda’s mandate at the
threshold, they may then proceed to elicit re-
sponses, however incriminating, without further
specific warnings.”’
Petitioner next urges that the effectiveness of the
Miranda warnings dissipated during the twelve-day
period between December 15 and December 27—that
the December 15 warnings had become stale.
In United States v. Kinsey, 352 F.Supp. 1176 at
1178 (E.D. Penn. 1972), the court stated:
“There is no requirement that the Miranda warn-
ings be repeated immediately prior to the com-
mencement of every interrogation session. They
do not become ‘stale’: Commonwealth v. Abrams,
443 Pa. 295, 298-301, 278 A.2d 902 (1971).”’
The Ohio Court in State v. Gallagher, 36 Ohio
App.2d 29, 301 N.E.2d 888, 890 (1973), held:
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7
“The law is established that there is no require-
ment to repeat the warnings during subsequent
questionings, even if several weeks elapse and fur-
ther questioning is conducted by other persons.”’
Petitioner relies upon Brown v. State, 252 A.2d
272, 275 (Md. 1969), for the proposition that Miranda
required that she be readvised of her rights on Decem-
ber 27, 1970. Even in that case the court stated:
“We quite agree with the cases which hold that
the Miranda warnings need not be given anew nor
the Miranda waiver expressed each time the officers
question the accused.”’
Petitioner also relies upon People v. Schenk, 24
Cal. App.3d 233, 101 Cal. Rptr. 75 (1972); however,
the court stated:
“[W]e hold that a repeated and continued warning
need not precede every twist and turn in the in-
vestigatory phase of the criminal proceeding.
Rather, as was stated in People v. Brockman
(1969), 2 Cal. App.3d 1002, 1006, 83 Cal. Rptr.
70, 73: ‘The determination, in each case, is
whether the Miranda warning sufficiently informs
a defendant of his constitutional rights so that he
has an understanding of those rights during sub-
sequent interrogations. [Citations.]’ If the Record
reflects that the defendant comprehended during
subsequent interrogation the precedent Miranda
warnings, the requirements of Miranda have been
satisfied.”
See also: Maguire v. United States, 396 F.2d 492 (9
Cir.
1968), cert. den. 393 U.S. 1099 (1969); Tucker
v. United States, 375 F.2d 365 (8 Cir. 1967), cert. den.
espinal ize ket ae
ti
: OE GOAPA te
ae
4
s
:
3
|
'
8
389 U.S. 888 (1967); State v. Magee, 52 N.J. 352, 245
A.2d 339 (1968).
On two separate occasions on December 15, the
Petitioner was advised of her rights and signed waiver
forms. She was not questioned between that date and
December 27, when she was told that she had been
informed of her rights previously and asked if she
understood them. She replied that she did. (D.C. Tr.
206).
On both dates the conversations were with the
same officers, the conversations occurred in the same
location, and the officers had made no attempt to
dilute Petitioner's understanding or knowledge of her
rights. At the evidentiary hearing below Petitioner was
asked if she knew that she did not have to talk to the
officers. She refused to give a direct answer but stated:
“IT don't think I really thought about it.” (D.C. Tr.
185). The record clearly indicates the Petitioner had
full knowledge of her rights and
intelligently — relin-
quished them.
What effect did Petitioner's December 15, 1970,
request to have her lawyer have upon her December
27, 1970, statements? Petitioner contends the request
‘nullified’’ her prior unquestionably valid waivers, there-
by rendering the December 27th statement inadmissible
and in support of that contention relies upon the fol-
lowing statement from Miranda vy. Arizona, 384 U.S.
436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966):
“If the individual states that he wants an at-
torney, the interrogation must cease until an attor-
ney is present. At that time, the individual must
have an opportunity to confer with the attorney
and to have him present during any subsequent
. BLEED THROUGH
9
questioning. If the individual cannot obtain an at-
torney and he indicates that he wants one before
speaking to the police, they must respect his deci-
sion to remain silent."’ (Emphasis added) 384 U.S.
at 474, 16 L.Ed.2d at 723.
However, Miranda vy. Arizona, supra, held that even
if interrogation is continued after a request but with-
out the presence of an attorney the statements might
be admissible if the defendant knowingly and_ intel-
ligently waived his privilege.
In United States v. Green, 433 F.2d 946, 948 (5th
Cir. 1970), it was held:
“Miranda did not hold that once an accused
expresses a desire to have counsel present the
door to present or future interrogation is forever
closed. The right to have counsel present can be
waived."
Cf. United States v. Brown, 459 F.2d 319 (5th Cir.
1971), cert. den. 409 U.S. 864, 93 S.Ct. 155, 34 L.Ed.
2d 111 (1972).
A waiver in United States v. Green, supra, was
found under more suspect circumstances than exist in
the instant case. Here, Petitioner was not under arrest
at the time of any interrogation; in both cases the
questioning ceased when a_ request for counsel was
made; and in both cases the individual being ques-
tioned acknowledged awareness and understanding of
his rights.
In United States v. Appell, 259 F.Supp. 156 (D.
Mass. 1966), an officer advised the defendant to ac-
company him to his office where defendant was advised
of his rights. The defendant called his attorney and
10
while waiting for the attorney to arrive gave damaging
admissions. The Court found the defendant was aware
of his rights and in fact executed them, and the state-
ments made in the attorney’s absence were admissible.
In United States v. Hodge, 487 F.2d 945 (5th
Cir. 1973), the defendant was arrested and advised of
his Miranda rights. He requested an attorney and
the interrogation was terminated. After being advised
of the procedure for obtaining counsel the defendant
elected to give a statement after waiving his right to
counsel. The defendant contended that once he re-
quested counsel there could be no further interrogation.
The Court held that the defendant’s request for an at-
torney evidenced an understanding of his rights; that
an arrestee could change his mind after requesting
counsel; and that the defendant had voluntarily and
freely waived the right. In the instant case the Peti-
tioner evidenced her understanding of her rights by re-
questing her counsel; by noting that the law enforce-
ment officers ceased their questioning when asked, and
that the officers left her home when requested.
In United States v. Dority, 487 F.2d 846 (6th
Cir. 1973), the defendant, after being advised of his
rights by an FBI agent, stated that he did not want
to make a statement but would like to consider it for
a few days. Counsel was appointed and the agent,
although he did not know of the appointment of coun-
sel, readvised the defendant of his rights. The Court
held that the agent was under no Constitutional duty
to refrain from talking to the defendant out of the
presence of his attorney since the defendant's right to
have counsel present was waived by his act of sign-
ing the waiver.
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11
In Wilson v. United States, 398 F.2d 331 (5 Cir.
1968), cert. den. 393 U.S. 1069, 89 S.Ct. 727, 21
L.Ed.2d 712 (1969), the arrested defendants after having
counsel appointed and being advised of their rights,
refused to give a statement. Later, law enforcement
officers knowing that counsel had been appointed for the
defendants, were able to obtain a statement. The de-
fendants contended that since the officers knew counsel
was appointed they were prohibited from interrogating
them without the presence of their counsel. This Court
rejected the argument by stating:
“It appears without dispute that appellants
made oral admissions to agents of the Federal
Bureau of Investigation out of the presence of
appellants’ counsel, the agents knowing that counsel
had been appointed for appellants. That fact alone
will not in our opinion render inadmissible the ad-
missions made, as held in Coughlan v. United
States, 391 F.2d 371 (9 Cir. 1968). (398 F.2d at
333).
The Ninth Circuit, in Coughlan v. United States,
391 F.2d 371 (9 Cir. 1968), cert. den. 393 U.S. 870,
89 S.Ct. 159, 21 L.Ed.2d 139 (1968), found that the
defendant was interrogated in jail by officers who knew
that he was represented by counsel. Defendant’s coun-
sel was not present at the interrogation and had no
notice of it. The Court stated:
“Under this state of the facts, appellant con-
tends that his Constitutionally guaranteed right to
counsel was effectively denied. We are asked to
rule that any statement, admission or confession
secured by peace officers from a defendant repre-
sented by an attorney, where the attorney was not
12
timely advised of the proposed interview or inter-
rogation, be rejected as violative of the right to
counsel. Appellant recognizes that this Sixth
Amendment right may be voluntarily waived, but,
at oral argument, it was contended that such a waiver
would never be knowingly and truly voluntary un-
less counsel was present to advise the client.
It may well be that the day is approaching
when the right to counsel may be expanded to
the point where an accused may only be _ inter-
rogated by the police in the presence of his lawyer.
However, no persuasive precedent for the holding
here sought has come to our attention. Appellant
relies heavily on the teaching of Miranda v. State
of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.
2d 694 (1966). Miranda specifically recognizes
prior cases holding that the right to counsel may
be waived. Here a clear and knowing waiver was
shown. We are unwilling to attempt to expand
the Miranda ruling to the extent sought by ap-
pellant.’’ (391 F.2d at 371).
In United States v. Hale, 397 F.2d 427 (7 Cir.
1968), the sheriff requested the defendant to follow
him to his office, which the defendant did. An attor-
ney was then appointed to represent him and the at-
torney talked with the defendant at length that day.
The next day the attorney was told that FBI officers
were coming to interrogate the defendant and the at-
torney advised the two officers that his client was
prepared to cooperate. Although he did not inform the
police officers to call him, it was his intention to be
present at any interrogation and he assumed that he
would be called. He had earlier told the defendant to
say nothing unless he were present. The FBI agents
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13
arrived, advised defendant of his rights and at that time
the defendant made a statement out of the presence
of his attorney. The Court found the admissions to
be the product of a waiver and admissible into evi-
dence.
In the instant case the Petitioner, her husband,
and her attorneys cooperated with the police; however,
her attorney never advised the police not to question
his client unless he was present. The Seventh Circuit,
in a leading case, United States v. Springer, 460 F.2d
1344 (7 Cir. 1972), cert. den. 407 U.S. 873, 93 S.Ct.
205, 34 L.Ed.2d 125 (1972), found that the government
agents presented a signed waiver form to the defendant
and that the defendant had stated that he under-
stood his rights. The Court held that such was suffi-
cient to raise a presumption of validity of waiver and
shift the burden of going forward to the accused who
must present some facts tending to show the waiver
was not voluntary or knowledgeable. The Court also
acknowledged that the fact that a defendant has an
attorney does not mean, as per se rule, that law en-
forcement officers cannot procure a statement of any
kind from defendant without prior notice to, if not the
consent of, the attorney.
The facts in the instant case clearly show that
Petitioner was aware of her Constitutional rights and ef-
fectively waived them. The Petitioner has failed to put
on sufficient proof to show otherwise. In United States
v. Springer, supra, the Court also held that a district
court’s determination that a defendant’s oral and writ-
ten confessions were given after waivers of Miranda
rights is entitled to substantial deference and would
not be overturned if it was substantially supported.
The Supreme Court of Mississippi, the Federal District
14
Court and Fifth Circuit Court of Appeals have, after
considering the evidence, found the statements were
given after a voluntary and knowing waiver. The find-
ings of those Courts are substantiated by the Record
and their decisions should not be overturned.
In Dillon v. United States, 391 F.2d 433 (10 Cir.
1968), the defendant, at the request of the city police,
went to the police station and was placed in an inter-
view where he was interrogated by agents of the FBI
who also advised him of the charges pending against
him and his Constitutional rights.
In Dillon v. United States, supra, the Court stated:
“It is further contended by Dillon that after
counsel had been retained for him the FBI agent
interviewed him without his counsel being present
and this procedure tainted the admissions. We do
not agree. The fact that Dillon’s counsel was
not present at the time the admissions were con-
firmed does not ipso facto render them inadmissible.
Butterwood v. United States, supra, at 383 of 365
F.2d. The presence of counsel can be waived as
well as demanded. Certainly, if an accused can
waive the right to counsel when that right first
attaches, Adams v. United States ex rel. McCann,
317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268
(1942); Leighton v. Cox, 365 F.2d 122 (10 Cir.
1966), he can waive the right to have counsel
present subsequent to the counsel’s appointment or
retainment. The chief concern in each case is that
the waiver be intelligently made.”
Petitioner relies primarily upon United States v.
Slaughter, 366 F.2d 833 (4 Cir. 1966), and United
States v. Priest, 409 F.2d 491 (5 Cir. 1969). In each
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15
of those cases the Court looked to the statement in
Miranda that:
“Once warnings have been given, the subse-
quent procedure is clear. If the individual indi-
cates in any manner, at any time prior to or dur-
ing questioning, that he wishes to remain silent,
the interrogation must cease. At this point he has
shown that he intends to exercise his Fifth Amend-
ment privilege; any statement taken after the
person invokes his privilege cannot be other than
the product of compulsion, subtle or otherwise.
Without the right to cut off questioning, the
settling of in-custody and interrogation operates
on the individual to overcome free choice in pro-
ducing a statement after the privilege has been
once invoked. If the individual states that he wants
an attorney, the interrogation must cease until an
attorney is present. At that time, the individual
must have an opportunity to confer with the at-
torney and have him present during any subsequent
questioning.’’ (Emphasis added) (384 U.S. at 473-
474, 86 S.Ct. at 1627-1628, 16 L.Ed.2d 723).
Miranda, supra, and its progeny do require that if
an individual requests counsel while he is undergoing
custodial interrogation the interrogation must cease.
In the cases relied upon must heavily by the Petitioner,
the defendants did, in fact, request the assistance of
counsel and none was provided. Their statements
were taken without ever seeing or discussing the mat-
ter with an attorney. However, the authorities do not
require that a defendant in fact talk or consult with
an attorney. The last portion of the above quoted
statement in Miranda, supra, provides that the defen-
dant must have an “opportunity’’ to consult with an
16
attorney—it does not require him to do so. In the
cases relied upon most heavily by Petitioner the defen-
dants were not permitted the opportunity to exercise
their right.
In the instant case the Petitioner did in fact re-
quest an attorney after taking the polygraph examina-
tion on December 15th. The important factor is that
she was then given the opportunity to consult with her
attorney and in fact she went to her home where she
was met by her attorney.
After consulting with her attorney the Petitioner
was once again free to remain silent and to say nothing
without the presence of her attorney. Having full
knowledge of those rights she knowingly and volun-
tarily waived them on December 27th.
In United States v. Daulton, 488 F.2d 524 (5 Cir.
1973), cert. den. 416 U.S. 989, 94 S.Ct. 2396, 40
L.Ed.2d 767 (1974), it was contended that the confes-
sion admitted at trial was obtained in violation of
Daulton’s Miranda rights. A full advisory was given
at the first interview on December 26, 1972, at which
time he chose to say nothing. Thirteen days later,
Daulton sent for the government agents so he could
tell them his side of the story. At that time a second
advisory was given which failed to include notification
of the right to appointed counsel if he could not afford
one. Affirming Daulton’s conviction, this Court ob-
served:
“The second warning was given by the same
interviewing officer who had first given the Miranda
warnings in a full and complete form. There was
further evidence that prior to his confession the
appellant had a conversation with the prison warden
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. ae)
. a)
17
in which he stated his awareness of his entitlement
to an attorney. In this situation, having been
given the full warning on an occasion when he
declined to talk, and being aware of his entitle-
ment to counsel, we attribute no reversible sig-
nificance to the inadvertent omission of a portion of
the warning on the second occasion. See United
States v. Springer, 7 Cir. 1972, 460 F.2d 1344;
United States v. Hopkins, 5 Cir., 1970, 433 F.2d
1041; Maguire v. United States, 9 Cir. 1968, 396
F.2d 327. The fact that Daulton requested the
second interview and was warned by identically
the same man who had previously warned him,
negates any idea of involuntariness generated by
failure to mention a fact already known to the
prisoner."’ (488 F.2d 524 at 525).
On December 15, 1970, Petitioner was fully and com-
pletely advised of her Constitutional rights and signed a
written waiver and later that same day was again advised
and signed a second waiver. On December 27, 1970, the
Petitioner was requested to go to the police station where
she was told that she had been informed of her rights be-
fore and was asked if she remembered and understood
them to which she replied affirmatively. On both the
15th of December and the 27th of December, the Peti-
tioner was advised and reminded of her rights by the same
officers in the same location. The officers had done noth-
ing to dilute the effect of the warnings previously given.
Under such circumstances the Petitioner knowingly and
voluntarily waived her right to remain silent. The fact
she, on the evening of December 15, 1970, had requested
and obtained the presence of her counsel is the clearest
evidence that she understood her rights and could invoke
them at will. See: United States v. Hodge, 487 F.2d
945 (5 Cir. 1973).
18
It is also important to note that when the Petitioner
was advised of her rights for the second time on December
15, 1970, she stated that they had previously been ex-
plained to her and she knew what her rights were. (2d
Tr. 206) (D.C. Tr. 76).
When the Petitioner gave her statement on December
27, 1970, and before Attorney Poole arrived at the police
station, Reeves and Price asked her if she would go to
the Ross Barnett Reservoir and point out the spot where
she had left her stepdaughter’s body. She stated: ‘She
said she'd be glad to.’’ (2d Tr. 296). And, she agreed
to show them the location the next morning. The next
morning, December 28, Reeves went to the jail and asked
the Petitioner if she still wanted to carry them to the
Reservoir. She replied affirmatively, stated that she had
told the truth, and stated that she wanted to get it all
straight. (2d Tr. 297). At the hearing below Reeves tes-
tified that he told Petitioner on two occasions on the
morning of the 28th that she did not have to go to the
Reservoir and show them where she had placed her step-
daughter’s body. She stated that she wanted to get the
matter cleared up. (D.C. Tr. 213-215). Price also testified
at the evidentiary hearing be!ow that Petitioner was ad-
vised that she did not have to go to the Reservoir if she
did not desire to do so. (D.C. Tr. 284). On the morning
of December 28, 1970, policewoman Nancy McAleer was
requested to accompany Reeves and Price and the Peti-
tioner. At the hearing below she testified that on that
morning Petitioner applied her makeup, brushed her hair
and indicated that she was ready to go. McAleer testi-
fied that Reeves said: ‘‘Mrs. Biddy, you know you don’t
have to do this, and she replied that she wanted to get
everything straightened out.’’ The statement was made
before they got into the automobile and, after they got
BLEED THROUGH
-~
ad
19
into the automobile Reeves again told Petitioner that she
did not have to go. (D.C. Tr. 268, 269).
After Petitioner had given her statement on Decem-
ber 27th and agreed to accompany Reeves and Price to
the Reservoir to show them where she had placed the
body of her stepdaughter, Attorney Poole arrived and in-
formed the Petitioner not to sign a statement. Reeves
testified that Poole only told the Petitioner not to ‘‘sign’’
anything. (D.C. Tr. 244). Petitioner's only testimony was
that Poole had told her not to “sign” anything. (D.C. Tr.
153).
Petitioner argues that later that night and before they
went to the Reservoir the next morning Reeves and Price
attempted to demean Attorney Poole in an effort to sub-
vert her trust in her attorney. This contention is clearly
not supported by the record. (D.C. Tr. 154-156, 217,
250-251).
Petitioner alleges that she was taken to the location
where her stepdaughter was found even though Reeves
and Price knew Attorney Poole had told her not to sign
anything. It must be emphasized that the right to coun-
sel and the right to remain silent are personal rights which
can be invoked or waived solely by Petitioner—not her
husband or attorney. In Jordan v. United States, 421
F.2d 493 (9 Cir. 1970), the defendant’s attorney had ad-
vised him not to discuss the case with the law enrorce-
ment authorities. The Court found that the defendant
had been advised of his rights and willingly made the
statement which was his privilege. The Court also stated:
“It is argued by appellant that because he did
not make any recorded response to the warning and
because his attorney was not present at any of these
interviews he could not and did not make any af-
firmative waiver. We are not referred to any author-
20
ity in support of such proposition, and know of
none.”
An overview of the facts in this case clearly indicates
Petitioner was at all times aware of her Constitutional
rights and that she knowingly, voluntarily, and intelli-
gently elected to waive her right to remain silent. Her
statement was freely given with full knowledge of the
consequences.
From December 4th to the 15th the officers saw the
Biddys every day. ‘‘In fact, several times we saw them
several times a day. Many times at their request, espe-
cially Mr. Biddy and sometimes Mrs. Biddy.” The
Biddys were very friendly toward these officers; ‘‘she
welcomed us to her home, she asked us questions. Mr.
Biddy was very friendly. We felt at home there.”’ (D.C.
Tr. 190).
Ted Biddy told the officers he thought his daughter
had been kidnapped by a maniac. (D.C. Tr. 191).
On December 8, 1970, the body of the missing child
was found in a reservoir. Mr. Biddy came to the scene
and identified the body. On the 14th he called Officer
Reeves and asked if Mona was wearing leotards when she
was found. Reeves testified, ‘‘Her legs were real white,
and it did look like she had on some white leotards. I
told him that she did not, she had on a dress, an under-
shirt and panties. He said wait a minute, now there's
something wrong because Mona never wore undershirts.
He said somebody had kidnapped her and they changed
her clothes. That undershirt doesn’t belong to this fam-
ily.” (D.C. Tr. 191).
Consequently, on the 15th, the officers called Mrs.
Biddy and asked her to come to headquarters and identify
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--
21
the clothing. Both appellant and her husband went to
headquarters and upon seeing the undershirt recognized
it as a pajama top which they stated was, in fact, part
of their children's clothing. (D.C. Tr. 192).
The officers then asked the Biddys if they could talk
to them and the Biddys agreed.
Appellant, Officers Reeves and Price and the County
Attorney from Rankin County (where the child's body
had been found) went into an interrogation room which
is the only facility available in the building for the inter-
viewing of witnesses. At this time Petitioner was given
a Miranda advisory. She was asked if she understood
that and replied that *. . . she understood exactly what
we were talking about.’ She then read and signed the
waiver and the officers and county attorney placed their
signatures on the waiver. (D.C. Tr. 194).
Describing this event, Petitioner testified:
By Mr. Hancock:
Were you in custody at that time?
No. (Emphasis supplied).
Did they advise you of your rights at that time?
They read my rights, yes.
Did you sign a written waiver?
Yes, I did.
ee? 2 2
By Mr. Hancock:
Q: After you had signed this waiver and the police
officers had, were no longer questioning you, were
you allowed to go, to leave the headquarters?
22
A: Yes, I did. (D.C. Tr. 166).
Petitioner was alert and there was no question but
that she understood her rights as explained.
Later that afternoon the Biddys were asked to take a
polygraph exam and drove to the Highway Patrol build-
ing in their own car. Ted Biddy offered to take the poly-
graph test first and was introduced to Dewey Weems
who was to administer the test. On direct examination
at the district court hearing he testified:
Q: And were your rights explained to you prior to
the time that the test was given?
A: Yes, sir. They were. (D.C. Tr. 80).
By the Court:
Did Mr. Biddy pass his test all right?
By the Witness:
No, sir.
By the Court:
Sir?
By the Witness:
He did not pass.
By the Court:
Both of them flunked the test?
By the Witness:
Yes, sir. (D.C. Tr. 68).
There was never any question but that appellant
would be tested next (D.C. Tr. 65) and Weems explained
her Miranda rights to her.
, BLEED THROUGH
--
23
Q: And I believe you testified that you did have
her sign a written waiver?
A: That’s correct.
Q. Did she make any statement in regards to under-
standing her rights?
A: Yes, sir. When I asked her to read and if she
understood to sign this waiver of her rights, her
being entitled to a lawyer and her right to remain
silent, she made the statement that she knew what
her rights were. That the police officers had ex-
plained her rights to her and that she had an attor-
ney. (D.C. Tr. 76) (Emphasis supplied).
Two polygrams were then run which revealed dis-
crepancies in her story.
By Mr. Weems:
A: I was explaining the polygrams to her and the
discrepancies in it and she made the request that
she wanted to speak with her attorney.
Q: What did you do at that point?
A: I immediately stopped the examination, took the
attachments off of Mrs. Biddy, asked her to get her
coat off of the coat rack in the corner, and escorted
her back out of the examination room. (D.C. Tr. 76).
Petitioner was then taken to her husband who tele-
phoned Charles Wright, an attorney. (D.C. Tr. 36, 81,
117). Ted Biddy told the officers something was wrong
with the test and asked the officers to come to his house
and discuss it. The officers declined but Biddy insisted
and the officers agreed to come out there later on. (D.C.
Tr. 198).
24
Thereafter, the officers did meet Charles Wright at
the Biddy home. Mrs. Biddy was not in the room.
There was some discussion of the polygraph test between
Ted Biddy and the officers.
By Mr. Hancock:
Q: Who was doing the questioning?
A: Mr. Biddy was asking the questions and the de-
tectives were replying to him.
Q: By detectives you mean Reeves and Price?
A: Yes, that is correct.
Q: Was Carolee Biddy present?
A: At a time later after the initial discussion
started.
Q: Was she present during at least part of the dis-
cussion concerning the lie detector test?
A: Yes, she was.
* * *
Q: What brought this conversation concerning the
lie detector test to an end?
A: I assume I did because when I said that, that
this is not the time or the place for this the detectives
immediately got up, agreed and left the premises.
a Teka: one
Sy es
Q: Were they hesitant about leaving?
A: No.
Q: Did they insist on questioning Carolee Biddy?
A: No. (D.C. Tr. 51, 52) (Emphasis supplied).
Parenthetically, it should be noted at this point that
on the evening of December 16, Petitioner reported a
- es
BLEED THROUGH
25
stabbing incident in which she claimed an unidentified
attacker had stabbed her. The Biddys called Officer
Reeves to come to their house after the attack and they
talked briefly about the attack but nothing else. No
questions were asked concerning the disappearance of
Mona. (D.C. Tr. 200). Reeves did not talk to Petitioner
again until December 26 when he received a midnight
phone call from Ted Biddy reporting that their two-year-
old baby had been kidnapped and found outside. (D.C.
Tr. 200, 201).
Early the next morning, Reeves and Price went to
the Biddy home to look for clues relative to the incident
the night before and were told by Mr. Biddy that he was
taking his entire family to Georgia that day. The officers
asked Mr. Biddy to call them before leaving and when he
did they told him they felt they needed to talk to him.
They went to his house and asked if he and Mrs. Biddy
would come to headquarters to talk and Mrs. Biddy asked
if it were necessary that she go. ‘‘She said all right she
would go and then Mrs. Biddy’s mother was there and
said how long will they be gone? I said I don’t think it
will be long."’ The officers told the Biddys to go in their
own car so the officers would not have to bring them
back. (D.C. Tr. 204). No one was under arrest.
Upon arrival at the station the Biddys were placed
in separate interrogation rooms and the officers told
Ted Biddy of the results of their investigation thus
far, i.e., that they believed the stabbing and kidnapping
instances had been staged and that some things she
had previously told them did not check out and he
agreed and asked to speak to her. (D.C. Tr. 205).
Ted Biddy and Officer Price brought Petitioner
across the hall into the interrogation room; Mr. Biddy
26
asked her about one of the incidences and about that
time the phone rang and Reeves was told Charles
Wright was downstairs. Reeves left the room and re-
turned with Wright who was joined by Ted Biddy.
(D.C. Tr. 90, 206).
Here it is worthy of emphasis that at the district
court hearing, Wright testified he did not recall talk-
ing to Petitioner during the interval between the De-
cember 15 meeting and December 28th (D.C. Tr. 54)
on which date he received a telephone call from Mal
Sims asking him to go to police headquarters. (D.C.
Tr. 39).
While these two men conversed Reeves returned
to the interrogation room and told Petitioner “.
there is a possibility that we will want to talk to you
a little later. Do you remember and understand the
rights that we have given you before?’ She said that
she did. He was satisfied she knew her rights as she
was a normal, intelligent woman who had twice before
been given complete advisorys and had previously suc-
cessfully exercised her privilege of calling her attorney.
(D.C. Tr. 206, 207).
When Wright left he told Reeves he was ill and
would send John Poole in his place. Wright never
told either Petitioner or her husband not to answer
any questions. (D.C. Tr. 57).
Reeves testified he did not know if Petitioner ever
saw Wright. After Wright left Reeves returned to the
interrogation room. Ted Biddy asked his wife about
some of the incidents and she admitted that these
stories were not the truth. (D.C. Tr. 175).
Z ae
27
Reeves then said, “‘Mrs. Biddy, why don’t you tell
him if you had anything to do with Mona's disappear-
ance.”’
She looked at him and had him by the hands and
she said, Ted, I’m sorry, I didn’t mean to do it.
It floored me when I heard it. I wasn’t expect-
ing it, and then both of them cried and then
stopped and she went on and told the story about
finding the baby dead in bed and being afraid she
would be accused of having something to do with
the death and she took it out to the reservoir and
put it at a place where they used to go when they
were courting. (D.C. Tr. 209).
Reeves then asked if Petitioner ‘“‘would mind” him
taking her statement in writing. She agreed and
shortly after Reeves began typing her statement he
received a call that John Poole was downstairs. Reeves
brought him upstairs and Poole and the Biddys con-
ferred privately (2d Tr. 295, D.C. Tr.) after which
Poole told the officers he did not want her signing any
statement and left. Poole told the officers and the
Biddys he would return the next morning.
Neither of the officers ever attempted in any way
to prevent Petitioner from seeing either of the attor-
neys (2d Tr. 296, 346-357) nor did she or her husband
tell the officers she did not wish to talk to them. (2d
Tr. 338, 348).
After conferring with Chief of Police Tullos, appel-
lant was arrested for the murder of Mona Biddy. (2d
Tr. 458-459).
On the morning of December 28, the officers asked
Petitioner if she would acccmpany them to the reservoir
28
as she had agreed the day before (prior to Poole’s
arrival) to show them where she placed the body.
Twice they told her she did not have to go but she
stated she had told the truth and wanted to get it
straight. (2d Tr. 297). At the district court hearing
Petitioner testified:
Q: What happened on the morning of December
28, 1970? I believe that’s the morning you went
out to the reservoir.
A: They came that morning, got me out of my
cell and took me to the reservoir.
Q: Were you told that you did not have to go?
A: Yes, I was.
Q: Why did you go?
A: Because they said if I cooperated with them
they would help me.
Q: Did you have anything to hide?
A: No.
Q: Did you know that you did not have to go to
the reservoir with them?
A: Lieutenant Reeves said, you know you don’t
have to go, but, I was already in the car and I
went. (D.C. Tr. 182).
Is Miranda applicable here? Was she in custody
when her statements were made?
The Fifth Circuit has held that probable cause for
arrest, the subjective intent of the police, subjective
belief of the defendant and focus of the investigation
are only factors to consider in determining whether
there were present the compulsive factors with which
BLEED THROUGH
‘ Pee)
29
Miranda was concerned. United States v. Carolla, 507
F.2d 60 (1976), cert. dem. .... U.S. ...., .... §.Ct.
...., 46 L.Ed.2d 105 (1975).
United States v. Montos, 421 F.2d 215 (5 Cir.
1970), cert. den. 397 U.S. 1022, 90 S.Ct. 1262, 25
L.Ed.2d 532 discussed the compulsive factors as fol-
lows:
“The ‘salient factors’ of the cases decided in Miranda
were ‘incommunicado interrogation of individuals
in a_ police-dominated atmosphere.’ Miranda v.
Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602 (1966).
The Miranda procedures are intended to combat
the effect which such a ‘compelling atmosphere,’
id. at 478, 86 S.Ct. at 1630, has upon the exercise
of constitutional rights. They are meant to pre-
clude law enforcement personnel from performing
‘their traditional investigatory functions,’ id. at 481,
86 S.Ct. at 1631, such as ‘[g]eneral on-the-scene
questioning of citizens in the fact finding pro-
cess * * *.’ id. at 477, 86 S.Ct. at 1629. Unless
restraint of an individual by law enforcement per-
sonnel is ‘significant’ Miranda warnings are not
required.’’ (421 F.2d at 222).
The Fifth Circuit has also held that a defendant is
not in custody within the purview of Miranda when he,
at the request of an officer, appears and subjects him-
self to questioning at the office of a law enforcement
officer. Menendez v. United States, 393 F.2d 312 (5
Cir. 1968), cert. den. 393 U.S. 1029, 89 S.Ct. 639, 21
L.Ed.2d 572.
In United States v. Hall, 421 F.2d 540 (2 Cir.
1969), cert. denied, 397 U.S. 990, 25 L.Ed.2d 398, 90
S.Ct. 1123 (1970), the Court held that Miranda warn-
30
ings need not be given prior to questioning even if the
questioning is not conducted while the defendant is in
custody.
In Hicks v. United States, 382 F.2d 158 (D.C. Cir.
1967), the police considered the defendant a suspect and
carried him to police headquarters. The Court rejected
the defendant’s contention that she thought she was
under arrest and concluded, among other things, that
the detectives needed to have transcribing facilities
available which were located at headquarters. The
Court held that the detective’s statement that he
‘‘wanted’’ her to come to headquarters rather than ‘“‘re-
questing” or ‘‘inviting’’ her did not alter the situation.
The Court noted ‘“‘there were none of the familiar con-
comitants of arrest, e.g., searching, booking, finger-
printing, to negate the statement of police that Appel-
lant was simply being interrogated as an important
witness.”” 382 F.2d at 162. The Court also noted that
“the investigation here was not initiated by the police
but came after Appellant voluntarily reported a homi-
cide; Appellant, not police, set the inquiry in motion.”
There was no ‘“‘custodial interrogation’’ in the Miranda
sense. Questioning of a witness cannot be character-
ized as ‘‘custodial interrogation simply because it occurs
at the police station.”” 382 F.2d at 162. The Court
further states:
Nor is there anything in the record to indicate that
appellant had been deprived of her freedom of ac-
tion in any significant way; since she never at-
tempted to leave the presence of the police it can-
not be said that her presence at headquarters was
against her will, especially as it is now clear that
her conduct and very presence at the police station
were part of her attempt to put the police on a
° 2
31
wild goose chase in search of the mythical “‘jitter-
bug” attackers. (382 F.2d at 162).
In United States v. Knight, 261 F.Supp. 843 (E.D.
Pa. 1966), an investigator advised Knight to come to
the investigator’s office for questioning. Knight went
to the office where he was given an inadequate ad-
visory of his rights. He was questioned about a crime
for which he was suspect and gave damaging admis-
sions. The Court held the questioning was not cus-
todial interrogation as Knight was under no compulsion
to go to the investigator's office and had been free
to leave. The Court also found no evidence to support
and rejected Knight’s argument that he was in con-
structive custody since he voluntarily appeared at the
office but did so under fear and similar psychological
factors.
And, in United States v. Littlepage, 435 F.2d 498
(5 Cir. 1971), cert. den. 402 U.S. 915, 91 S.Ct. 1374,
28 L.Ed.2d 657, reh. den. 402 U.S. 1013, 91 S.Ct. 2187,
29 L.Ed.2d 436, the Fifth Circuit considered among
other things in finding no custodial interrogation the
fact that the defendant was not told he was under
arrest.
Likewise, several courts have considered the pres-
ence of friends as an indication of non-custody. Archer
v. United States, 393 F.2d 124 (5 Cir. 1968) (suspect’s
husband); United States v. Manni, 270 F.Supp. 103
(D. Mass. 1967), Aff'd. 391 F.2d 922 (1 Cir. 1968)
(suspect’s wife); State v. Noriega, 433 P.2d 281 (Ariz.
App. 1967) (suspect’s wife); State v. Tellez, 431 P.2d
691 (Ariz. App. 1967) (suspect’s friends); Stout v. State,
426 S.W.2d 800 (Ark. 1968) (suspect’s wife); People v.
Butterfield, 65 Cal. Rptr. 876 (Cal. App. 1968) (sus-
32
pect’s mother); State v. Davis, 157 N.W.2d 907 (Iowa
1968) (doctors and nurses); Jones v. State, 234 A.2d
900 (Md. App. 1967) (suspect’s girl friend); McFadden
v. State, 231 A.2d 910 (Md. App. 1967) (suspect’s
wife); People v. Allen, 281 N.Y.S.2d 602 (N.Y. App.
1967) (suspect’s family); State v. Gray, 150 S.E.2d 1
(N.C. 1966) (suspect’s cousin); Commonwealth v. Bar-
clay, 240 A.2d 839 (Pa. App. 1968) (suspect’s family).
Thus, on December 27, 1970, the date on which pe-
titioner made her damaging admission, she was not sub-
jected to custodial interrogation. She had voluntarily
gone to the police station, she was under no compulsion
to stay, she could have left at any time, and she was
not required to answer any questions. Therefore, ac-
cording to the cases cited above, there was no require-
ment that Petitioner be given her Miranda warnings.
Statements given by her would be admissible in evi-
dence without having been advised of her Miranda
warnings and having knowingly and voluntarily waived
them. Petitioner on two previous occasions had been
advised of her Miranda rights and had signed waivers.
Likewise, on the date in question the Petitioner was in-
formed that she had been told her rights previously,
and she was asked if she understood them, and she re-
plied that she did. At the time she was not in the
presence of her husband, but she had never been refused
access to her attorney. She had voluntarily gone to the
police headquarters with her husband. As shown by
the facts, the police merely wanted to talk to Petitioner
and her husband before they left the State of Missis-
sippi. Under the circumstances there was no require-
ment that the Miranda warnings be given.
On the date in question, petitioner's husband was
informed of statements made by the Petitioner which
4 .
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iM
33
the police believed to be false. The Petitioner's hus-
band confronted her with these facts and she admitted
that the statements she had been making in the past
were false. In People v. Sunday, 79 Cal. Rptr. 752 at
756 (Cal. App. 1969), the Court stated:
The entire thrust of the Miranda policy is to insure
that a defendant’s decision to confess or not is
based upon a free and intelligent approval of his
position. The appraisal may be better made if a
defendant is aware of the nature and extent of evi-
dence or information in the possession of the police.
As stated previously, petitioner had at least on two oc-
casions been fully advised of her Miranda rights and
had signed written waivers. Once Miranda warnings
have been given, they need not be repeated prior to a
second interrogation. Maguire v. United States, 396
F.2d 327 (9 Cir. 1968), cert. den. 393 U.S. 1099, 89
S.Ct. 897, 21 L.Ed.2d 792; United States v. Osterburg,
423 F.2d 704 (8 Cir. 1970), cert. den. 399 U.S. 914, 90
S.Ct. 2216, 26 L.Ed.2d 571; United States v. Mans-
field, 318 F.2d 961 (7 Cir. 1967); Miller v. United
States, 396 F.2d 492 (8 Cir. 1968), cert. den. 393 U.S.
1031, 89 S.Ct. 643, 21 L.Ed.2d 574.
It is well settled that whether Miranda warnings
must be repeated before a second interrogation must be
determined on a case by case method.
As stated in Jennings v. United States, 391 F.2d
512, 515 (5 Cir. 1968), cert. den. 393 U.S. 868, 21
L.Ed.2d 136, 89 S.Ct. 154 (1968):
[W]hat the Court sought to interdict in Miranda
were those situations in which the police had indi-
cated a desire to exercise his constitutional right of
34
silence but the police refused to take ‘no’ for an
answer.
As noted in Boulden v. Holman, 394 U.S. 478, 22
L.Ed.2d 433, 89 S.Ct. 1133 (1969):
[T]he question whether a confession was voluntarily
made necessarily turns on the ‘totality of the cir-
cumstances’ in any particular case. 394 U.S. at 487.
See also Clewis v. Texas, 386 U.S. 707, 18 L.Ed.2d
423, 87 S.Ct. 1338 (1967); Greenwald v. Wisconsin, 390
U.S. 519, 20 L.Ed.2d 77, 88 S.Ct. 1152 (1968); Darwin
v. Connecticut, 391 U.S. 346, 20 L.Ed.2d 630, 88 S.Ct.
1488 (1968); Frazier v. Cupp, 394 U.S. 731, 22 L.Ed.2d
684, 89 S.Ct. 1420 (1969).
As submitted above there was no requirement that
Petitioner at any time be advised of her Miranda rights;
however, in the case at bar Petitioner signed two waiv-
ers and subsequently gave a verbal affirmation that the
previously given admonitions were known and _ under-
stood. There can be no doubt that the waiver was
knowingly and unequivocally demonstrated.
Petitioner also alleges that after signing a waiver
of Miranda rights on December 15, 1970, she had stated
that she wanted her husband and attorney. At that
time the uncontradicted evidence shows that the ques-
tioning ceased, and petitioner was free to do whatever
she pleased. She and her husband returned to their
home where they talked with their attorney. Petitioner
now alleges that by requesting her attorneys she could
not be questioned at a later date.
In Dillon v. United States, 391 F.2d 433 (10 Cir.
1968), cert. den. 393 U.S. 889, 89 S.Ct. 208, 21 L.Ed.
2d 168, the defendant was interviewed without the pres-
BLEED THROUGH
=
35
ence of his counsel and gave damaging admissions. The
Court held that just as counsel may be waived when
the right first attaches, the right may be waived sub-
sequent to counsel’s appearance.
In United States v. Young, 471 F.2d 109 (7 Cir.
1972), cert. den. 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.
2d 156, the defendant was arrested by police officers
and was advised of his rights. The defendant expressed
a desire to talk to his attorney. He was later turned
over to the postal authorities where he was again ad-
vised of his rights and signed a waiver and gave a
statement. The Court held that there was no viola-
tion of Miranda as the defendant chose to speak rather
than exercise his right to remain silent. In United
States v. Grady, 423 F.2d 1091 (5 Cir. 1971), the de-
fendant was arrested by city police and after being
given his Miranda warnings stated that he would an-
swer no questions and would like the assistance of coun-
sel. Counsel was not furnished and on the next day de-
fendant was interrogated by a special agent of the FBI
at which time he made certain admissions. The de-
fendant argued that the statements were inadmissible
because he had expressed a desire for an attorney and
was later questioned after making the request. The
Fifth Circuit held that the statements were admissible
and stated:
A decision in appellant’s favor on this point would
be tantamount to holding that an arrestee could not
change his mind once he had stated that he would
not be interviewed without an attorney. (423 F.2d
at 1093).
At no time was Petitioner denied access to an at-
torney. To the contrary, the evidence clearly indicates
36
that she was in constant contact with an attorney. Her
admissions made on December 27, 1970, were not in
violation of Miranda v. Arizona, supra. Immediately
prior to giving the statements Petitioner admitted that
she understood her rights.
Admittedly, Petitioner on December 15, 1970,
stated that she wanted to see her lawyer and attorney.
She was permitted to do so which in itself is a strong
indication that anytime she expressed an interest in see-
ing an attorney there would be no questioning.
According to Petitioner’s own evidence, her attor-
ney knew that she would be interviewed on the date
in question, and in fact, he appeared at the site of the
interview.
In United States v. Hayes, 385 F.2d 375 (4 Cir.
1967), cert. den. 390 U.S. 1006, 88 S.Ct. 1250, 20
L.Ed.2d 106, the defendant was given the Miranda
warnings and was permitted to make a telephone call,
but was never asked if he understood the warnings or
desired counsel, and he did not volunteer any informa-
tion. He never confessed, but did make some incrim-
inating statements during thirty minutes of question-
ing, which he suddenly terminated by declaring that he
would answer no more questions and demanding that he
be allowed to see a lawyer. The Court concluded his
later assertion of his rights made it clear that he un-
derstood the warnings and knew how to exercise his
right. In the case at bar the petitioner on two occa-
sions had been advised of her Miranda rights and had
signed waivers. She stated that she wanted an attor-
ney on one occasion and all questioning ceased. By
making such a demand, and by noting the results of her
demand, petitioner was well aware that she would not
mit Ccecrn hit owiscei
° 6
37
be questioned without assistance of counsel if she did
not knowingly and voluntarily consent thereto.
Petitioner now alleges that the police officers sup-
pressed evidence by failing to state until this time that
she had ever requested the assistance of counsel and
that as a result of her demand all questioning ended.
However, Petitioner is the one who made the demand
for an attorney. There can be no suppression of state-
ments which Petitioner made. Her acts were within her
own knowledge.
As regards Petitioner’s accompanying the officers
to the reservoir on December 28, it is readily apparent
that this was a voluntary act on her part. She was
twice told she did not have to go. (D.C. Tr. 215, 268,
269, 284 2nd Tr. 297). She testified at the hearing
that she was told she did not have to go. (D.C. Tr.
182). There is not the vaguest hint in any record be-
fore this Court that her actions on the 28th were
coerced or induced by pressure from the officers. On
this point Miranda is most explicit:
Volunteered statements of any kind are not barred
by the Fifth Amendment and their admissibility is
not affected by our holding today. (384 U.S. at
478).
Upon a consideration of the circumstances attendant
the making of the subject statements, this Court, the
United States Court of Appeals for the Fifth Circuit,
the United States District Court and the Mississippi Su-
preme Court have all determined that the Petitioner
knowingly, intelligently and voluntarily waived her
rights under Miranda after having received the ap-
propriate warnings. At no time has there been any
evidence that the rights of this Petitioner were violated
38
or infringed upon in any manner nor does the instant
Petition disclose anything to the contrary.
CONCLUSION
Respondent respectfully submits that the Petitioner
was very much aware of her Miranda rights which she
elected to waive before making her statement. The
Petitioner’s circumstances pose no question of particular
moment or indecision in the case law of the land and
it is therefore respectfully submitted that the petition
for Writ of Certiorari should in all justice be denied
as being without merit.
Respectfully submitted,
A. F. SuMMER
Attorney General
Karen GILFoy
Assistant Attorney General
Tmmie Hancock
Assistant Attorney General
CERTIFICATE OF SERVICE
I, Karen Gilfoy, Assistant Attorney General for the
State of Mississippi, do hereby certify that I have this
day mailed, postage prepaid, a copy of the foregoing
Brief in Opposition to Petition for Writ of Certiorari
to the United States Court of Appeals for the Fifth
Circuit to F. Lee Bailey, Esquire, One Center Plaza,
Boston, Massachusetts 02108, Mark J. Kadish, Esquire,
Edward T. M. Garland, Garland, Nuckolls & Kadish,
. BLEED THROUGH
. on
39
P.C., 1012 Candler Building, Atlanta, Georgia 30303
and Harry Kelley, Esquire, 215 Barnett Building, Jack-
son, Mississippi 39201.
This, the 1st day of April, A. D., 1976.
Karen GILFoy
Assistant Attorney General
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.