Opposition Brief — Bunch v. Thompson

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In The

Supreme Court of the United States

October Term, 1991

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TIMOTHY DALE BUNCH,

Petitioner,

CHARLES E. THOMPSON, WARDEN

MECKLENBURG CORRECTIONAL CENTER,

Respondent.

£

Petition For Writ Of Certiorari

To The Supreme Court Of Virginia

¢

RESPONDENT'S BRIEF IN OPPOSITION

¢

JoHN H. McLees, Jr.

Assistant Attorney General

Office of the Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-4624

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

CR CALL COLLECT (402) 342-283

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QUESTIONS PRESENTED

WHETHER BUNCH’S CLAIM BASED ON EDWARDS

V. ARIZONA IS FORECLOSED BY THE NEW RULE

DOCTRINE BECAUSE IT IS BASED ON AN INTER-

PRETATION OF EDWARDS WHICH WAS NOT DIC-

TATED BY CONTROLLING PRECEDENT WHEN

BUNCH’S CONVICTION BECAME FINAL.

WHETHER BUNCH’S EDWARDS CLAIM IS BARRED

BY THE NEW RULE DOCTRINE BECAUSE IT

WOULD REQUIRE THE ANNOUNCEMENT IN THIS

CASE OF A NEW RULE CONCERNING THE MEAN-

ING OF “INITIATION OF INTERROGATION.”

WHETHER THE EXCLUSIONARY RULE SHOULD

BE APPLIED IN FEDERAL HABEAS REVIFW OF

EDWARDS AND MIRANDA CLAIMS FROM STATE

CRIMINAL CONVICTIONS.

WHETHER THE POLICE IMPERMISSIBLY INITI-

ATED INTERROGATION OF BUNCH.

li

TABLE OF CONTENTS

Page

CLF eee PEE? 5 8 40S 0W hee eke eee nxens i

TAREE CP Aare sen aavvcsteenesveecweses iii

SEALECETCE GOP ERM Goi ech ces ae eceeacase'es 1

SUMMARY OF AINGUMEINE ss cscvcsdeswscevevceds 6

RIED & vores ou) 5055 d0eaarunaeee eee 7

CA SAPS 0 ev nex decxinudnencekeegeee en ee mineas 21

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TABLE OF AUTHORITIES

Cases

Arizona v. Roberson, 486 U.S. 675 (1988) ............. 18

Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d 271

(1983), cert. denied, 464 U.S. 1064 (1984).. 5, 8, 18, 19

Bunch v. Thompson, 949 F.2d 1354, 1360 (4th Cir.

ay so ich cks va b abe vane 5,7

Butler v. McKellar, 495 U.S. 915 (1990)................ 7

Cabana v. Bullock, 474 U.S. 376 (1986) ............... 20

Castillo v. State, 742 S.W.2d 1 (Tex.Cr.App. 1987)..... 11

Connecticut v. Barrett, 479 U.S. 523 (1987)......... 11, 20

Cox v. State, 493 N.E.2d 151 (Ind. 1986)............. 11

Day v. State, 816 S.W.2d 852 (Ark. 1991)............. 12

Duckworth v. Eagan, 492 U.S. 195 (1989)...... 14, 15, 16

Eaton v. Commonwealth, 240 Va. 236, 397 S.E.2d 385

(1990), cert. denied, 112 S.Ct. 88 (1991) ............ 11

Edwards v. Arizona, 451 U.S. 477 (1981).......... Passim

Estelle v. Smith, 451 U.S. 454 (1981) .................. 8

Foster v. Commonwealth, 8 Va. App. 167, 380 S.E.2d

ES i es 12

Griffin v. Lynaugh, 823 F.2d 856 (5th Cir. 1987)....17, 20

Grooms v. Keeney, 826 F.2d 883 (9th Cir. 1987) ....12, 18

Holland v. State, 587 So.2d 848 (Miss. 1991).......... 12

Johnson v. State, 303 So.2d 7 (Ga. 1983).............. 12

iv

TABLE OF AUTHORITIES - Continued

Page

Johnson v. Zerbst, 304 U.S. 458 (1938)............ 7, 8,9

Kaufmann v. United States, 394 U.S. 217 (1969)....... 15

King v. State, 436 So.2d 50 (Fla. 1983)............... 12

Maglio v. Jago, 580 F.2d 202 (6th Cir. 1978).......... 11

McCall v. State, 501 So.2d 496 (Ala.Cr.App. 1986) .... 12

Minnick v. Mississippi, 111 S.Ct. 486 (1990)........ 13, 21

Miranda v. Arizona, 384 U.S. 436 (1966).......... Passim

Moulds v. State, 429 So.2d 1176 (Ala.Cr.App. 1983) .... 12

Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979).......... 12

Oregon v. Bradshaw, 462 U.S 1044 (1983)........ 8, 9, 17

Owen v. State, 560 So.2d 207 (Fla. 1990)............. 12

People v. Evans, 530 N.E.2d 1360 (Ill. 1988) .......... 11

Plazinich v. Lynaugh, 843 F.2d 836 (5th Cir. 1988) .... 17

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)........ 16

Smith v. Illinois, 469 U.S. 91 (1984).................. 11

Solem v. Stumes, 465 U.S. 638 (1984).................. 9

State v. Acquin, 448 A.2d 163 (Conn. 1982).......... 12

State v. Anderson, 553 A.2d 589 (Conn. 1989) ........ 12

State v. Johnson, 318 N.W.2d 417 (Io. 1982) .......... 11

State v. Robinson, 427 N.W.2d 217 (Minn. 1988)...... 12

State v. Scott, 626 S.W.2d 25 (Tenn.Cr.App. 1981) ....12

State v. Sundstrom, 552 A.2d 81 (N.H. 1988)......... 12

Vv

TABLE OF AUTHORITIES - Continued

Page

Stringer v. Black, 112 S.Ct. 1130 (1992)............... 11

Stone v. Powell, 428 U.S. 465 (1976)........... 14, 15, 16

Sumner v. Mata, 449 U.S. at 545................0008. 20

Teague v. Lane, 489 U.S. 288 (1989) ........ Ry Ate ah ae

Towne v. Dugger, 899 F.2d 1104 (11th Cir. 1990)...... 11

United States ex rel Espinoza v. Fairman, 813 F.2d

Eee Gee So. RD ha vein deka sadseoeec ees 11

United States v. Cherry, 783 F.2d 1124 (5th Cir.

| Cr PERM Mo med Sete ih ia) Fe 19

United States v. Duggan, 936 F.2d 181 (5th Cir.

i | Se a eye wens Rarity natn or Muniloyrann, yas 17

United States v. Gotay, 844 F.2d 971 (2nd Cir. 1988) .... 12

United States v. Porter, 776 F.2d 370 (1st Cir. 1985).... 12

United States v. Riggs, 537 F.2d 1219 (4th Cir. 1976) .12, 20

United States v. Wyatt, 561 F.2d 1388 (4th Cir. 1977) .... 20

Wainwright v. Goode, 464 U.S. 78 (1983).............. 20

Wainwright v. Sykes, 433 U.S. 72 (1977) .............. 14

Witherow v. Williams, 112 S. Ct. __, 51 Cr.L. 3021

CUE oaes Seinen cat Contac eee eee ee 14

No. 91-1757

a te —

In The

Supreme Court of the United States

October Term, 1991

TIMOTHY DALE BUNCH,

Petitioner,

CHARLES E. THOMPSON, WARDEN

MECKLENBURG CORRECTIONAL CENTER,

Respondent.

o¢-

Petition For Writ Of Certiorari

To The Supreme Court Of Virginia

S

RESPONDENT’S BRIEF IN OPPOSITION

4

STATEMENT OF THE CASE

The respondent agrees with Bunch’s statement of the

course of proceedings, but adds the following statement

of the facts, as found by the Supreme Court of Virginia,

relevant to the issues presented for review.

The record shows that in the months of Decem-

ber, 1981, and January and February, 1982,

Bunch, a sergeant in the United States Marine

Corps, was detached from duty in Japan and

assigned to temporary duty at Quantico in

Prince William County. During this period, he

met Su Cha Thomas, a divorced woman living

]

alone in Dale City near Quantico, and an inti-

mate relationship developed between them. At

the time, Bunch was separated from his wife.

On February 2, after Thomas had failed to

report for work, Prince William County police

went to her home and found her body hanging

from a door knob by a scarf tied around her

neck. An autopsy revealed a gunshot wound to

the head and “congestion of the blood [vessels]

within the lungs.” The medical examiner con-

cluded “this was a combined cause of death due

to a gunshot wound to the head . . . with a

secondary complication, asphyxiation by hang-

ing.”

One of the items missing from Thomas’s

home was a lady’s Rolex wristwatch. On the day

Thomas’s body was discovered, Bunch sold a

similar watch to an Arlington County pawn

shop. A report filed by the pawn shop with the

police, as well as other information, led investi-

gators to Bunch, who had returned to his per-

manent duty station in Japan.

Bunch was interrogated in Japan on Febru-

ary 16 by Donald L. Cahill, a Prince William

County police investigator who had journeyed

to Japan with warrants charging Bunch with the

robbery and murder of Thomas. In the course of

the interrogation, Bunch made certain incrimi-

nating statements to Cahill. Bunch was returned

to the United States, and upon his arrival in

Prince William County on February 21, made a

statement to Cahill admitting he had killed

Thomas on January 31 and had taken her Rolex

watch, a diamond ring, a string of pearls, and

other items of jewelry. Bunch stated he killed

Thomas because “she was a slut and she

reminded him too much of his wife and he

wanted her money.”

In a pretrial motion, Bunch sought to sup-

press the confession he made to Investigator

Cahill on February 21, following his return to

Prince William County from Japan. In the

motion, Bunch claimed that he gave the confes-

sion after his earlier “requests for counsel had

been unfulfilled.” Finding that Bunch had

requested and been denied the assistance of

counsel in Japan, the trial court suppressed the

incriminating statements made there by Bunch.

The court refused, however, to suppress the con-

fession Bunch gave to Investigator Cahill on

February 21 in Prince William County.

The record shows that Investigator Cahill

was accompanied to Japan by William Hamblen,

an assistant Commonwealth’s attorney for

Prince William County. Upon their arrival at

Bunch’s duty station at Iwakuni, Bunch was

brought to Naval Intelligence Service Headquar-

ters by military police. He was placed in a room

with Cahill and Hamblen, and Cahill read him

his rights under Miranda v. Arizona, 384 U.S. 436

(1966). Bunch signed a “Warning and Consent”

form and indicated he was willing to talk. Cahill

then began to interrogate him.

According to Bunch’s testimony at the sup-

pression hearing, he asked to consult counsel

“approximately a dozen times” during the inter-

rogation at Iwakuni. Cahill and Hamblen denied

Bunch made any outright request for counsel,

but claimed he stated once, after the interroga-

tion had continued for some time, that “he felt

like he might want to talk to a lawyer.” When

this statement was made, Hamblen left the room

and Cahill talked to Bunch on another matter an

additional several minutes. Then, as Cahill was

leaving the room to ask Hamblen whether the

interrogation should continue in light of

Bunch’s statement concerning counsel, Bunch

stated he would cooperate. He told Cahill that

“the gun” was at his mother’s home in Indiana

and that “the ring” was in Japan.

Cahill and Hamblen decided Bunch should

not be interrogated further unless he signed

another “Warning and Consent” form. When a

new form was presented to him, Bunch refused

to sign it, and the interview was terminated.

In the custody of military personnel, Bunch

was transported by plane from Japan to Dulles

Airport in northern Virginia and by automobile

from Dulles to Quantico, the trip consuming

some forty-two hours. Although he was not

questioned during the trip about Thomas’s mur-

der, military personnel escorting Bunch advised

him of his Miranda rights on the flight from Los

Angeles to Dulles. Upon arrival in Quantico

after midnight on February 21, Bunch was pro-

cessed for delivery to Prince William County

authorities.

As a part of this process, Bunch consulted

with Major Donald R. Jillisky, a lawyer attached

to the Marine Judge Advocate General's Office.

The major told Bunch that he was “a Marine

Corps lawyer . .. not his lawyer” and that it was

his, the major’s purpose “to inform [Bunch] of

what his situation was and to surrender him to

State authorities.” Jillisky informed Bunch of the

charges against him and told him he would be

required to hire his own lawyer or secure court-

appointed counsel. Jillisky advised Bunch that

aaa iii

“he did not have to say anything until he con-

sulted with his lawyer, and that it was probably

not in his best interest to say anything until he

consulted with his lawyer.”

At the conclusion of the processing at Quan-

tico, Bunch was turned over to Investigator

Cahill, who transported him to a Prince William

County police substation. En route, Cahill asked

Bunch “if he felt he was ready to sit down and

go over the case.” Cahill told Bunch that “[i]t

was entirely up to him” and that “he certainly

was not required to talk to [Cahill] if he didn’t

want to.” Bunch stated that he had talked to the

lawyer at Quantico and had been advised “not

to say anything” and to talk to a civilian lawyer

before talking to the police. Bunch added, how-

ever, that he had decided “he was ready to tell

the whole story” and that “he wanted to get it

off his chest.”

At the substation, Bunch was advised of his

Miranda rights, and he executed a “Warning and

Consent” form. He then proceeded to give

Cahill the confession that is now in controversy.

At the conclusion of the suppression hear-

ing, the trial court ruled that Bunch had

“intelligently, wittingly, freely and volun-

tarily ... waived [his Miranda] rights” before he

gave Cahill his confession. Accordingly, the

court held that the confession was admissible

into evidence.

Bunch v. Commonwealth, 225 Va. 423, 429-432, 304 S.E.2d

271, 274-275 (1983), cert. denied, 464 U.S. 1064 (1984).

*

SUMMARY OF ARGUMENT

This case involves a straightforward application of

the new rule doctrine, and is not worthy of review on

certiorari. The 1983 decision of the Supreme Court of

Virginia to uphold the admission of Bunch’s confession to

the police was a reasonable, good-faith interpretation of

Edwards v. Arizona and other federal precedent existing at

the time. It was not clear at that time that Edwards had

established a per se rule that reinitiation of communica-

tions with the police by a suspect in custody who has

invoked his right to counsel was a sine-qua-non to a

finding that his subsequent confession, albeit knowing,

intelligent, and voluntary, is admissible. Moreover, con-

trolling precedent did not dictate in 1983, and does not

dictate even today, a finding that interrogation was imper-

missibly reinitiated by the police in Bunch’s case.

Even were Bunch’s Edwards claim net barred by the

new rule doctrine, certiorari review would not be neces-

sary, because claims under Edwards and Miranda v. Ari-

zona arising from state criminal prosecutions should

generally not be reviewed in federal habeas corpus.

In any event, certiorari review is not warranted,

because Bunch’s Edwards claim must be rejected on the

merits.

ARGUMENT

I. THIS CASE INVOLVES A STRAIGHTFORWARD

APPLICATION OF THE NEW RULE DOCTRINE,

AND IS NOT WORTHY OF CERTIORARI REVIEW.

Bunch’s interpretation of Edwards v. Arizona, 451 U.S.

477 (1981), was not dictated by controlling case law at the

time his conviction became final, and should not be

applied retroactively to his case. See Teague v. Lane, 489

U.S. 288 (1989); Butler v. McKellar, 495 U.S. 915 (1990).

This Court’s opinion in Edwards left substantial

uncertainty in the lower courts concerning at least two

issues. The first was whether reinitiation of communica-

tions with the police by a suspect in custody who has

invoked his right to counsel was a sine-qua-non to a

finding that his subsequent confession, albeit knowing,

intelligent, and voluntary, is admissible, or merely a fac-

tor to be weighed in applying the traditional voluntary

waiver test established in Johnson v. Zerbst, 304 U.S. 458

(1938). The second was what “initiation” meant.

The Fourth Circuit correctly affirmed the District

Court’s thorough analysis (A. 1276-1278) of the disagree-

ment following the Edwards opinion among members of

this Court and among the lower courts concerning the

first of these issues. Bunch v. Thompson, 949 F.2d 1354,

1360 (4th Cir. 1991). Justice Powell’s concurrence in

Edwards expressed uncertainty whether the majority’s

emphasis on “initiation” had created “a new per se rule,

requiring a threshold inquiry as to precisely who opened

any conversation between an accused and state officials.”

451 U.S. at 489-490.!

The Court’s opinion the following year in Wyrick v.

Fields, 459 U.S. 42 (1982), only increased the confusion

about whether Edwards established a per se rule. In

Wyrick, this Court reversed the Eighth Circuit for failing

to “examine the ‘totality of the circumstances,’ as Edwards

requires,” 459 U.S. at 47, and concluded that the Eighth

Circuit must have been “encouraged by what it regarded

as a per se rule established in Edwards ...” 459 U.S. at 48

(emphasis added), and had “misconstrued this Court’s

recent decision in Edwards v. Arizona, and imposed a new

and unjustified limit on police questioning of a suspect

who voluntarily, knowingly, and intelligently waive[d]

his right to have counsel present.” 459 U.S. at 43 (citation

omitted). The Supreme Court of Virginia relied heavily on

Wyrick in its effort to interpret and apply Edwards in

Bunch’s case. 225 Va. at 432-433, 304 S.E.2d at 276.

Justice Powell’s concurring opinion in Oregon v.

Bradshaw, 469 U.S. 1039 (1983), decided six days after

Bunch’s direct appeal was rejected, highlighted the uncer-

tainties about Edwards, and compared seven lower court

decisions interpreting Edwards as establishing a per se rule

with five lower court decisions to the contrary. 462 U.S.

1 Estelle v. Smith, 451 U.S. 454 (1981), issued the same day

as Edwards, added to the confusion surrounding Edwards. In

Estelle, the Court quoted the Edwards opinion as holding that

waivers of the assistance of counsel must meet the “Johnson v.

Zerbst standard,” and that the determination of waiver

depended “upon the particular facts and circumstances sur-

rounding [each] case... .” Estelle, 451 U.S. at 471 n. 16, quoting

Edwards, 451 U.S. at 482.

1047, n.1. Moreover, while eight Justices agreed in

Bradshaw that re-initiation by the suspect was required in

an Edwards situation before the Johnson v. Zerbst test need

be applied, Justice Marshall and the three Justices who

joined his dissent disagreed with then-Justice Rehnquist

and the three Justices who joined him over the meaning

of “initiation.” Bradshaw, 462 U.S. at 1048.

As the Court of Appeals concluded, the question of

whether Edwards had established a per se rule was not

definitively resolved in the affirmative, so that no lower

court could reasonably hold to the contrary, until Solem v.

Stumes, 465 U.S. 638, was decided in 1984. Prior to Solem,

this Court had never referred to the Edwards decision as

establishing a “bright-line rule.” The only previous

Supreme Court references to Edwards as a “per se rule”

were in Justice Powell’s Bradshaw concurrence expressing

uncertainty whether Edwards was a per se rule, 462 U‘S. at

1047, and the per curiam opinion in Wyrick reversing the

Eighth Circuit for failing to “examine the ‘totality of the

circumstances,’ as Edwards requires,” 459 U.S. at 47, and

concluding that the Eighth Circuit must have been

“encouraged by what it regarded as a per se rule estab-

lished in Edwards. ...” 459 U.S. at 48 (emphasis added).

Solem was the first Supreme Court case to clarify that,

while “Edwards did not overrule any prior decision or

transform standard practice,” 465 U.S. at 647, it did call

for a “per se approach” to post-counsel request waivers of

a qualitatively different sort than the previously-applied

Zerbst analysis. Id. The per se rule of Edwards thus cannot

be applied retroactively to cases where convictions

became final before the Solem ruling.

Denia ae eae

10

Bunch’s conviction became final when this Court

denied certiorari in 1983. The Supreme Court of Virginia

had never before addressed the question of whether

Edwards had adopted a per se rule. That court held that it

had not, as did many other lower courts at that time. The

Virginia Court regarded the question of who re-initiated

the communications leading to Bunch’s confession as

merely one of a number of factors to be weighed in the

traditional “totality of the circumstances” analysis. This

holding was consistent with all existing Virginia prece-

dent and with all of this Court’s pre-Edwards cases, and

was a reasonable interpretation of Edwards at the time,

especially in light of Wyrick.

The second major uncertainty about the Edwards

opinion, the meaning of “initiation,” is an issue of many

facets, most of which are still unresolved by controlling

precedent. The Court of Appeals recognized this uncer-

tainty, 949 F.2d at 1360, and emphasized that the Virginia

court was ruling “on a close question of law at the mar-

gins of the Miranda Doctrine,” and that its ruling war-

ranted respect in federal habeas review as one that

reasonable jurists could make. 949 F.2d at 1362.

In this case, Bunch made an equivocal remark to the

effect that he “might want to talk to a lawyer.” His

statements to the police which were admitted in evidence

were made several days later, after he had in fact talked

to and been advised by a lawyer, following which inter-

view Investigator Cahill had asked Bunch “if he felt he

was ready to sit down and go over the case.”

The rules advocated by Bunch are that Cahill’s ques-

tion under these particular facts was permissible neither

1]

as an attempt to clarify Bunch’s ambiguous remark nor as

an inquiry about whether Bunch had satisfied his desire

for legal advice by consulting with Major Jillisky and had

thus changed his mind about speaking to the police with-

out an attorney. Unless both of these results were dictated

by controlling precedent at the time Bunch’s conviction

became final, the rule he seeks to establish is a new one

under Teague, and cannot be applied in his case. Other-

wise, the application of Edwards to Bunch’s case would be

one occurring “in a novel setting, thereby extending the

precedent.” Stringer v. Black, 112 S.Ct. 1130, 1135 (1992).

Neither rule is dictated by controlling precedent

today, much less in 1983 when Bunch’s conviction became

final. The permissibility of police questioning in an

attempt to clarify a suspect’s ambiguous remark about

obtaining the advice of counsel was expressly left open

by this Court in Connecticut v. Barrett, 479 U.S. 523, 529

n.3 (1987), and in Smith v. Illinois, 469 U.S. 91, 96 n.3

(1984) (per curiam). The question remains one as to which

judicial minds differ considerably nationwide. Compare,

e.g., United States ex rel Espinoza v. Fairman, 813 F.2d 117,

124 (7th Cir. 1987); Maglio v. Jago, 580 F.2d 202, 205 (6th

Cir. 1978) (both holding that all questioning must cease

upon an equivocal invocation of the right to counsel)

with People v. Evans, 530 N.E.2d 1360, 1371 (Ill. 1988); Cox

v. State, 493 N.E.2d 151, 155 (Ind. 1986); State v. Johnson,

318 N.W.2d 417, 430 (Io. 1982); Castillo v. State, 742 S.W.2d

1, 3 (Tex.Cr.App. 1987); Eaton v. Commonwealth, 240 Va.

236, 397 S.E.2d 385 (1990), cert. denied, 112 S.Ct. 88 (1991)

(all holding that police interrogation may continue unless

suspect invokes his right to counsel with a requisite

degree of clarity); and with Towne v. Dugger, 899 F.2d

12

1104, 1110 (11th Cir. 1990); United States v. Gotay, 844 F.2d

971, 975 (2nd Cir. 1988); Grooms v. Keeney, 826 F.2d 883

(9th Cir. 1987); United States v. Porter, 776 F.2d 370 (1st Cir.

1985); Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979) (en

banc); United States v. Riggs, 537 F.2d 1219, 122 (4th Cir.

1976); Day v. State, 816 S.W.2d 852 (Ark. 1991); State v.

Anderson, 553 A.2d 589, 593 (Conn. 1989); Owen v. State,

560 So.2d 207 (Fla. 1990); State v. Robinson, 427 N.W.2d

217, 223 (Minn. 1988); Holland v. State, 587 So.2d 848

(Miss. 1991); State v. Sundstrom, 552 A.2d 81, 84 (N.H.

1988) (all holding that police questioning after equivocal

invocation of the right to counsel must be confined to

clarification of the suspect’s desires concerning counsel).

Likewise, Bunch’s proposition that the police may

not inquire of a suspect whether he has changed his mind

about speaking to them without an attorney is not dic-

tated by controlling case law even today, much less in

1983. Justice Powell’s concurring opinion in Edwards indi-

cated that such inquiries were permissible under the

Edwards rule. 451 U.S. at 490. The respondent is unaware

of any subsequent authority to the contrary. Such author-

ity as exists supports or cites with approval Justice Pow-

ell’s view. See Moulds v. State, 429 So.2d 1176, 1779

(Ala.Cr.App. 1983); McCall v. State, 501 So.2d 496, 500

(Ala.Cr.App. 1986); State v. Acquin, 448 A.2d 163, 177

(Conn. 1982); King v. State, 436 So.2d 50, 54 (Fla. 1983);

Johnson v. State, 303 So.2d 7 (Ga. 1983); State v. Scott, 626

S.W.2d 25 (Tenn. Cr. App. 1981); Foster v. Commonwealth, 8

Va. App. 167, 380 S.E.2d 12 (1989). The panel opinion

discussed several of these decisions at length to demon-

strate the reasonableness of the Virginia court’s decision.

949 F.2d at 1360-1361.

13

In Minnick v. Mississippi, 111 S.Ct. 486 (1990), this

Court held that “when counsel is requested, interrogation

must cease, and officials may not reinitiate interrogation

without counsel present, whether or not the accused has

consulted with his attorney.” 111 S.Ct. at 491. This is

clearly a new rule, and inapplicable to Bunch’s case. The

very necessity, perceived by this Court, of rendering a

full opinion in Minnick rather than summarily reversing

in light of Edwards, is an indication that the question of

whether mere consultation with counsel would satisfy

Edwards and permit reinitiation of interrogation by the

police had not previously been resolved beyond suscep-

tibility to debate among reasonable minds:

Whatever the ambiguities of our earlier cases on this

point, we now hold that when counsel is

requested, interrogation must cease, and offi-

cials may not reinitiate interrogation without

counsel present, whether or not the accused has

consulted with his attorney.

111 S.Ct. at 491 (emphasis added).

Thus, even if the interpretation of Edwards as estab-

lishing a bright-line rule that the suspect must initiate

further interrogation were applicable to Bunch’s case, a

rule that Cahill’s question was an impermissible initiation

of interrogation would clearly be new, and could not be

applied.

14

Il. THE FEDERAL COURTS SHOULD NOT CON-

SIDER APPLICATION OF THE EXCLUSIONARY

RULE FOR EDWARDS OR MIRANDA VIOLA-

TIONS ON COLLATERAL REVIEW OF STATE

CRIMINAL CONVICTIONS.

This Court recently agreed to decide whether Stone v.

Powell, 428 U.S. 465 (1976), should be extended to federal

habeas cases involving claims of Miranda and Fifth

Amendment violations. Witherow v. Williams, 112 S.Ct. __,

51 Cr.L. 3021, No. 91-103 (April 20, 1992). The respondent

submits that it should. In Stone v. Powell, 428 U.S. 465 (1976),

this Court held that federal courts would no longer apply the

exclusionary rule for Fourth Amendment violations in collat-

eral review of state criminal convictions, because the well-

recognized societal costs of such applications of the rule far

outweighed any marginal benefit obtained. In Duckworth v.

Eagan, 492 U.S. 195 (1989), Justices O’Connor and Scalia

indicated in their concurring opinion they believed that Mir-

anda violations, like Fourth Amendment violations, should

not give rise to application of the exclusionary rule on

collateral federal review of state criminal convictions. The

Court had raised that question sua sponte, but declined to

resolve it, in Wainwright v. Sykes, 433 U.S. 72, 87 n.11 (1977).

Thus, even if Bunch’s interpretation of Edwards were applica-

ble to his case, this Court should decline to consider Bunch’s

Edwards claim upon the authority of Stone v. Powell.?

2 The Court of Appeals expressly declined to address this

question, having rested its decision on narrower grounds. 949

F.2d at 1363, n. 2. The argument is presented here as additional

support for the result reached by the Court of Appeals.

15

The Edwards rule, like the Miranda rule, “is not, nor

did it ever claim to be, a dictate of the Fifth Amendment

itself. . . . Like all prophylactic rules, the [Edwards] rule

‘over protects’ the value at stake. In the name of efficient

judicial administration of the Fifth Amendment guaran-

tee and the need to create institutional respect for Fifth

Amendment values, it sacrifices society’s interest in

uncovering evidence of crime and punishing those who

violate its laws.” Duckworth, 492 U.S. at 209 (O’Connor, J.,

concurring). Like evidence seized in violation of the

Fourth Amendment, evidence seized through Miranda or

Edwards violations, especially violations as technical as

those which Bunch alleges, “can in no way have been

rendered untrustworthy by the means of its seizure and

indeed often this evidence alone establishes beyond vir-

tually any shadow of a doubt that the defendant is

guilty.” Stone v. Powell, 428 U.S. at 489; quoting Kaufmann

v. United States, 394 U.S. 217, 237 (1969) (Black, J., dissent-

ing).

As in the Fourth Amendment context, the application

of the exclusionary rule in federal habeas corpus to

enforce the Edwards or Miranda rules:

results in serious intrusions on values important

to our system of government. They include “(i)

the most effective utilization of limited judicial

resources, (ii) the necessity of finality of crimi-

nal trials, (iii) the minimization of friction

between our federal and state systems of justice,

and (iv) the maintenance of the constitutional

balance upon which the doctrine of federalism is

founded.”

ater

16

Stone v. Powell, 428 U.S. at 491 n.31, (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 259 (1973) (Powell, J., concurring).

“While this balance of interest may be perfectly justified in

the context of direct review of criminal convictions, . . . the

balance shifts when applied to a presumptively final criminal

judgment which is collaterally attacked in a federal habeas

corpus proceeding.” Duckworth, 492 U.S. at 209-210 (O’Con-

nor, J., concurring). The application of the exclusionary rule

in federal habeas corpus proceedings to whatever Miranda or

Edwards violations are not discovered upon trial, direct

review in the state courts, or certiorari review in this Court is

of negligible additional deterrent effect in convincing state

law enforcement authorities to abide by the Edwards and

Miranda decisions. This is more true today than it was when

Stone v. Powell was decided in 1976, because of the dimin-

ished role which federal habeas corpus review plays in

reviewing state criminal convictions in light of the new rule

doctrine of Teague.

Excluding probative evidence years after trial,

when a new trial may be a practical impos-

sibility, will often result in the release of an

admittedly guilty individual who may pose a

continuing threat to society. While federal courts

must and do vindicate constitutional values out-

side the truth seeking function of a criminal

trial, where those values are unlikely to be

served by the suppression remedy, the result is

positively perverse. Exclusion in such a situa-

tion teaches not respect for the law, but casts the

criminal system as a game, and sends the mes-

sage that society is so unmoved by the violation

of its own laws that it is willing to frustrate their

enforcement for the smallest of returns.

Duckworth, 492 U.S. at 211-212 (O’Connor, J., concurring).

17

Ill. INVESTIGATOR CAHILL DID NOT IMPER-

MISSIBLY INITIATE INTERROGATION OF

BUNCH.

Bunch’s argument that Cahill impermissibly initiated

interrogation of him is not only a new rule and thus

inapplicable under Teague, it is meritless as well.

Edwards “was in effect a prophylactic rule, designed

to protect an accused in police custody from being bad-

gered by police officers in the manner in which the defen-

dant in Edwards was.” Oregon v. Bradshaw, 462 US. at

1044. Edwards, after having given an exculpatory state-

ment in custodial interrogation, offered to “make a deal,”

but stated that he wanted an attorney before making a

deal. Interrogation ceased at that point, but the next

morning, when the police came to the jail to question

Edwards further, the jailer told him that “he had to” talk

to them even though he did not want to. He was taken

into their presence and interrogated, and eventually he

confessed. 451 U.S. at 479.

As Justice Powell stated in his concurring opinion,

“few cases will be as clear as this one.” 451 U.S. at 490. At

least one lower court has held that interpretation of the

Edwards prophylactic rule should not be “divorced from

the context of badgering police conduct from which the

rule sprang,” Plazinich v. Lynaugh, 843 F.2d 836, 839 (5th

Cir. 1988), and that “in the absence of some police inter-

ference with the exercise of the right to counsel of the

accused, the Edwards rule is to be strictly and narrowly

applied.” Griffin v. Lynaugh, 823 F.2d 856, 862 (5th Cir.

1987). Accord, United States v. Duggan, 936 F.2d 181, 183

(Sth Cir. 1991).

18

When Investigator Cahill asked Bunch “if he felt he

was ready to sit down and go over the case” (A. 107), he

was merely trying to determine whether or not Bunch felt

that his need for tegal advice had been satisfied by his

conference with Major Jillisky, the military lawyer at

Quantico, and was then willing to discuss the case with-

out further legal assistance. This conclusion is supported

by the Supreme Court of Virginia’s finding that Cahill’s

question “amounted to nothing more than an effort to

ascertain if Bunch had changed his mind about wanting

an attorney,” 225 Va. at 435, 304 S.E.2d at 277, which is

presumed correct in this Court under 28 U.S.C. § 2254(d),

and by Cahill’s own testimony that he posed this ques-

tion to Bunch because he knew Bunch had just talked to a

lawyer. (A. 108).

Contrary to Bunch’s argument, the trial court’s

expression of the opinion that the Jillisky interview had

not satisfied Bunch’s right to counsel has no bearing on

the purpose or interpretation of Cahill’s question. The

question of whether the Jillisky interview satisfied

Bunch’s need for legal advice was for Bunch to decide,

not the trial court. Edwards focuses on the defendant's state

of mind. Arizona v. Roberson, 486 U.S. 675 (1988). Bunch in

fact did feel that his need for legal advice had been

fulfilled. Bunch said “he had talked with the lawyer at

Quantico, and . . . he wanted to get it off his chest...”

(A. 86), and that, in spite of the lawyer’s advice that he

should talk to a civilian lawyer before he talked to the

police, Bunch had “decided that he was ready to tell the

ae

19

whole story. ...” (A. 107).3 The trial court found that

Bunch’s reaction to the military lawyer’s advice that he

should remain silent and seek civilian counsel was to

conclude that everything was futile. (A. 132).

Inquiries comparable to Cahill’s, made under analo-

gous circumstances, have been recognized as permissible.

As Justice Powell observed in his Edwards concurrence,

Communications between police and a suspect

in custody are commonplace. It is useful to con-

trast the circumstances of this case with typical,

and permissible, custodial communications

between police and a suspect who has asked for

counsel. For example . . . the police legitimately

may inquire whether a suspect has changed his

mind about speaking to them without an attor-

ney.

451 U.S. at 490.

Likewise, police may continue to question a suspect

in custody in order to clarify the meaning of the suspect's

equivocal comment concerning obtaining legal counsel.

Grooms v. Keeney, 826 F.2d 883, 886 (9th Cir. 1987); United

States v. Cherry, 783 F.2d 1124, 1130 (5th Cir. 1984). Cahill

and Hamblen testified (A. 71-72, 92), and Bunch agreed

(A. 37-38), that Bunch had said that he “might want to

talk to a lawyer.” The Supreme Court of Virginia found as

a fact that Bunch’s statement was ambiguous. 225 Va. at

3 These responses by Bunch, expressing his willingness to

talk without counsel but not containing inculpatory informa-

tion, belie his argument in the Court of Appeals that “Bunch

perceived Cahill’s question as a broad request for information

concerning the crime. ...” (Pet. Rhg. at 15).

20

443, 304 S.E.2d at 276.4 This finding must be presumed

correct under 28 U.S.C. § 2254(d). Sumner v. Mata, 449

U.S. 539, 545-547 (1981); Cabana v. Bullock, 474 U.S. 376,

388 n.5 (1986).

In addition, this Court has made it clear that a sus-

pect’s invocation of the right to counsel can be a limited

one, and that police may continue the interrogation with-

out providing counsel as long as they confine the subse-

quent interrogation within the limits specified by his_

invocation of the right to counsel. Connecticut v. Barrett,

479 U.S. at 529. A necessary corollary to this rule is that,

when the police are uncertain as to the limitations the

suspect has placed upon the interrogation which he is

willing to undergo without the assistance of counsel, they

may inquire of him as to such limitations. See Griffin v.

4 Because a finding concerning the meaning of a suspect’s

remarks about his right to counsel is a finding of historical fact,

see United States v. Wyatt, 561 F.2d 1388, 1390 (4th Cir. 1977);

United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir. 1976), a

finding concerning the apparent meaning, or lack thereof, of

his remark to the interrogating officers should also be regarded

as a finding of historical fact. To the extent that the trial court’s

conclusions that “somewhere along the interview [Bunch] indi-

cated the feeling that he should have an attorney present,” and

that “Hamblen excused himself from [the interrogation]

because there was some indication that an attorney was

desired or felt like it should be present” (A. 118), were incon-

sistent with the Supreme Court of Virginia’s finding that

Bunch’s remark that he might want to talk to a lawyer was

ambiguous, these findings by the trial court were implicitly

rejected by the Supreme Court of Virginia. The State Supreme

Court’s resolution of these factual issues, and of the meaning

of the trial court’s remarks, is entitled to deference in federal

habeas review. See Wainwright v. Guode, 464 U.S. 78 (1983).

21

Lynaugh, 823 F.2d at 863-864. Since Bunch’s remark to

Cahill had been that he “might want to talk to a lawyer,”

and since he had in fact talked to and been advised by a

lawyer at Quantico, it was eminently reasonable and

permissible for Cahill thereafter to inquire whether

Bunch was then prepared to discuss the facts of the case.

Minnick v. Mississippi, if it were applicable to Bunch’s

case, would not require a contrary result on the merits.

After having consulted with an attorney, Minnick, like

Edwards, was told that “he would have to talk to [the

deputy sheriff] and that he could not refuse.” 111 S.Ct. at

488-89 (internal quotations omitted). Thus, Minnick does

not resolve the question of whether the police may sim-

ply inquire whether a suspect has changed his mind

about speaking to them without counsel.

*

CONCLUSION

Certiorari is not warranted to review the Court of

Appeals’ simple and correct finding that the relief which

Bunch seeks based on Edwards v. Arizona would violate

the new rule doctrine. Even if that were not the case,

however, certiorari would still be unwarranted because

Miranda and Edwards claims should not normally be

reviewed in federal habeas corpus proceedings, and

because the Supreme Court of Virginia correctly found

that Investigator Cahill did not impermissibly initiate

interrogation of Bunch.

Respectfully submitted,

CHARLES E. THOMPSON, WARDEN

MECKLENBURG CORRECTIONAL CENTER,

Mary Sue TERRY

Attorney General of Virginia

JoHN H. McLegs, Jr.

Assistant Attorney General

Bar No. 15520

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-4624