Petition for Writ of Certiorari — Brown v. Hopper

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001952 JUN 27 2001

OFFICE OF THE CLERK

No.:

In the

Supreme Court of the United States

Gregory Allen Brown,

Petitioner,

Joe S. Hopper, Commissioner of

the Alabama Department of Corrections,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Gregory D. Shelton

Counsel for Petitioner

Four Times Square

New York, NY 10036

(212) 735-3166

Piles sisi so wthatericainhathen'e

QUESTIONS PRESENTED FOR REVIEW

Is the admission of a confession obtained from a

defendant in a custodial interrogation, after he has

clearly invoked has right to counsel and the request

has been disregarded, a violation of both the Fifth and

Sixth Amendments to the United States Constitution

so as to require a reversal of a conviction obtained

thereby?

Is a lower court's reconsideration of already deter-

mined factual issues proper after the United States

Supreme Court remands a case with instructions to

reconsider in light of a recently decided case?

Is the admission of a confession obtained following

promises of beneficial treatment to the accused by

interrogating officers a violation of the United States

Constitution so as to require a reversal of a conviction

obtained thereby?

PARTIES TO THE PROCEEDINGS B W

The only parties to the proceedings below are the

Petitioner-Appellant, Gregory Allen Brown, and the

Respondent-Appellee, Joe S. Hopper, in his capacity as

Commissioner of the Alabama Department of Corrections.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........

PARTIES TO THE PROCEEDINGS BELOW ....... 1

erie ie tina aah edad ew ee Bsa kee I

STATEMENT OF JURISDICTION ................. 2

CONSTITUTIONAL PROVISIONS AT ISSUE ....... 2

seAammeevs OF THE CASE ... 2... ccc ce ccc cees 3

REASONS FOR GRANTING THE WRIT ........... 12

I. MR. BROWN'S CONFESSION WAS

INADMISSIBLE BECAUSE HIS

REQUEST FOR COUNSEL WAS

SS Se ee 12

Il. THE LAW OF THE CASE

DOCTRINE PRECLUDED

RECONSIDERATION OF THE

CLARITY OF MR. BROWN'S

3 by ge 6 Gee 1)... |: a 18

III. MR. BROWN'S CONFESSION

WAS INADMISSIBLE BECAUSE

HIS STATEMENT WAS OBTAINED

FOLLOWING PROMISES OF

ROGGE ECTAL PREARBOEINE 220s ccccccsaes 22

CAME beans skeen kcnera ca acadtaanekes 27

TABLE OF CITED AUTHORITIES

CASES PAGE(S)

Alabama v. Brown, 513 U.S. 801 (1994) ....... 1, 10, 20

Brady v. United States, 397 U.S. 742 (1970)....... 23, 24

Bram v. United States, 168 U.S. 532 (1897) ....... 22, 23

Brown v. State, 630 So. 2d 481 (Ala. Crim. App.

FD. winicakeenraeante Peerrr rr eee passim

Brown v. State, 668 So. 2d 102 (Ala. Crim. App.

| PRR PPE Ee reer Serr perry ale? passim

C.S.H. v. State, 662 So. 2d 1230 (Ala. Crim. App.

SPEER a cas dha ae ew ab Sereee ee ee 21

Callahan v. State, No. CR-97-1202, 1999 WL 254480

(Ala. Crim. App. Apr. 30, 1999) ............. 18

Crooker v. California, 357 U.S. 433 (1958) .......... 23

Davis v. United States, 512 U.S. 452 (1994) ...... passim

Edwards v. Arizona, 451 U.S. 477 (1981) ......... 13, 21

Ex parte Gregory Allan Brown, 668 So. 2d 105

Cae Se oe he bk G ha a eee passim

Gibson v. Phillips Petroleum Co., 352 U.S. 874

TOPE Xs a6 cee a de eS ee 19

Gospodareck v. State, 666 So. 2d 835 (1993) ........ 3,4

Haynes v. Washington, 373 U.S. 503 (1963) ......... 23

Hohn v. United States, 524 U.S. 236 (1998) .......... 22

Hughes Aircraft Co. v. United States, 140 F.3d 1470

Gk. Gas SU cb cb dvesceecseecesuss ult 19

Hutto vy. Ross, 429 U.S. 28 (1976) .. 0... cc cccccccces 23

Malloy v. Hogan, 378 U.S. 1 (1964) ................ 23

McNeil v. Wisconsin, 501 U.S. 171 (1991) ........... 13

Michigan v. Harvey, 494 U.S. 344 (1990) ............ 17

Michigan v. Jackson, 475 U.S. 625 (1986) ........... 13

Miranda v. Anzona, 384 U.S. 436 (1966) ....... 3, 13, 17

Owen v. Alabama, 849 F.2d 536 (11th Cir. 1988) ..... 21

Rhode Island v. Innis, 446 U.S. 291 (1980)........... 13

Soffar v. Johnson, 237 F.3d 411 (Sth Cir. 2000) ....... 14

Stephens v. Stephens, 718 So. 2d 54 (Ala. Civ. App.

GOED csncussesaadsueantuawabecusaiae 19

Union Pacific R.R. Co. v. Johnson, 249 F.2d 674 (9th

ee Pee eeer erry rrr ye rr y ree er rer. 19

Vil

United States v. M.C.C. of Fla., Inc., 967 F.2d 1559

Se: SE a ao be ea ewene aed ee ce oe es 19

United States v. Robinson, 690 F.2d 869 (11th Cir.

SE caduecabutenssoseleaen neces 19

United States v. Alexander, 106 F.3d 874

aes eee a oe ook eh awe toate 18-19

Williams v. Carolina Life Ins. Co., 348 U.S. 802

SE vances oukyed bie ake eeeeea naa ewe 19

Williams v. Taylor, I 20 S. Ct. 1495 (2000) ........... 17

STATUTES PAGE(S)

SS eR ko Ou eo 2

Sos GQ I, OT nk. cc Hak ccecwhesutbenbeudiwer 13

CITATIONS TO REPORT AND OPINIONS BELOW

Federal Habeas Corpus Decisions

The decision of the United States Court of Appeals for

the Eleventh Circuit, dated March 29, 2001, which affirmed

the District Court's opinion is unreported and is included

herein at App. 1. The decision of the United States Court of

Appeals for the Eleventh Circuit, dated April 21, 2000, which

granted in part and denied in part Petitioner's request for a

certificate of appealability is unreported and is included

herein at App. 2. The opinion of the United States District

Court for the Northern District of Alabama, Middle Division,

dated September 21, 1999, which denied Petitioner's Motion

for a Writ of Habeas Corpus is unreported and is included

herein at App. 3-18. The Magistrate's Report and Recom-

mendation of the United States District Court for the Northern

District of Alabama, Middle Division, dated February 25,

1999, is unreported and is included herein at App. 19-57.

Direct Appeal Decisions

The opinion of the Alabama Supreme Court denying

Petitioner's petition for a writ of certiorari is reported at Ex

parte Gregory Allan Brown, 668 So. 2d 105 (Ala. 1996). Ex

parte Gregory Allan Brown is included herein at App 58-62.

The opinion of the Alabama Court of Criminal Appeals

reinstating Petitioner's conviction is reported at Brown v.

State, 668 So. 2d 102 (Ala. Crim. App. 1995) ("Brown II").

Brown II is included herein at App. 63-71. The decision of

the United States Supreme Court granting certiorari, vacating

the opinion below, and remanding the case, is reported at

Alabama v. Brown, 513 U.S. 801 (1994). Alabama v. Brown

is included herein at App. 72. The opinion of the Alabama

Court of Criminal Appeals reversing Petitioner's conviction

is reported at Brown v. State, 630 So. 2d 481 (Ala. Crim.

App. 1993) ("Brown I"). Brown] is included herein at App.

73-82.

STATEMENT OF JURISDICTION

The decision of the United States Court of Appeals for

the Eleventh Circuit affirming the United States District Court

for the Northern District of Alabama was entered on March

29, 2001. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AT ISSUE

This case involves the Fifth Amendment to the United

States Constitution:

No person shall be . . . compelled in any

criminal case to be a witness against himself

This case also involves the Sixth Amendment to the

United States Constitution:

In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of

Counsel for his defence.

This case also involves Section I of the Fourteenth

Amendment to the United States Constitution:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

Ri ig RES. ee Re Od

Sena? Zita, = csaile.

Cures

citizens of the United States; nor shall any

State deprive any person of life, liberty or

property, without due process of law; nor deny

any person within its jurisdiction the equal

protection of law.

STATEMENT OF THE CASE

In 1991, Mr. Brown was indicted for his role in the

murder of Jerry W. Callahan.' See Brown v. State, 630 So.

2d 481, 482 (Ala. Crim. App. 1993) ("Brown I") (App. 74).

Following a jury trial, Mr. Brown was found to be guilty as

charged in the indictment. See id. The trial court accepted

the jury's recommendation that Mr. Brown be sentenced to

life imprisonment without the possibility of parole. See id.

In the course of their investigation into Callahan's

murder, the Hoover, Alabama police discovered that Callahan

and Mr. Brown had been involved in a high-stakes blackjack

game the night before Callahan was killed. See id.; App. 75.

The police contacted Mr. Brown and requested that he meet

with them at the Hoover police department to discuss the

investigation. See Brown 1, 630 So. 2d at 482; App. 76. Mr.

Brown, who had no criminal record and no prior dealings

with the criminal justice system, agreed to meet with the

detectives. See id. Shortly before the meeting was to take

place, the detectives, who were watching Mr. Brown's house,

- Mr. Brown's Co-Defendant, Robert Paul Gospodareck, a

former police officer and deputy sheriff, confessed to killing

_Callahan. See Gospodareck v. State, 666 So. 2d 835, 836 (1993).

Mr. Brown was not even present when the murder took place.

See id. at 835.

a EE EE EE EE EE EE OO, ee

saw Mr. Brown get into his car and drive in a direction that

they considered to be the opposite direction of the police

station in Hoover, Alabama. See Brown I, 630 So. 2d at 482-

83; App. 76. Suspecting that he was leaving without speaking

to them, the detectives called the Gardendale, Alabama police

and asked them to stop Mr. Brown. See id. at 483; App. 76.

After stopping the vehicle, the Gardendale police called the

Hoover investigators to the scene. See id. Mr. Brown

informed the investigators that he was still planning to meet

with them. See id. Mr. Brown later explained to the police

that he was on his way to his attorney's office when they

stopped him and that was the reason he was not driving

directly to the Hoover police station. See App. at 48 n.7.

When they arrived at the vehicle, the Hoover detec-

tives saw a .45 caliber handgun inside Mr. Brown's car.’ See

Brown I, 630 So. 2d at 483; App. 76. Mr. Brown told the

investigators that Callahan had given him the gun. See id.

The investigators looked in the car, with Brown's permission,

and found a note that was written by Callahan. See id. The

note expressed Callahan's wish to die. See id.; App. 76-77.

In it, Callahan claimed that he had a terminal illness and

wanted to die with dignity. See id. (setting forth text of note).

At trial, experts confirmed that the note was handwnitten by

Callahan. See id.; App. 77.

The investigators then read Mr. Brown his Miranda

rights, placed him under arrest and took him to the Hoover

police station. See Brown I, 630 So. 2d at 483; App. 77. At

~ The gun that killed Callahan was a .380 caliber handgun.

See Gospodareck, 666 So. 2d at 839. It was recovered during the

investigation of Gospodareck. See id.

Jere a ee

the station, Mr. Brown was interrogated at different times by

three police officers. See id. The interrogation was video-

taped and later transcribed. See id. Approximately one-third

of the way through the interrogation, but before Mr. Brown

made any self-incriminating statements he clearly requested

the assistance of counsel. The following conversation took

place:

Q: (By Sgt. Braden) From the very start.

Q: (by Det. Zarzour) From the very start.

From the time he gave

you the letter --

A: (Mr. Brown) Okay.

Q: Go ahead.

A: Is it going to piss y'all off if I ask for

my -- to talk to a friend that is an

attorney. I mean, I'm going to do

whatever I have got to do. Don't get

me wrong.

Q: Well, I understand that. I understand

what you are saying.

A: You have got to realize, man, I'm

f***ing scared to death.

Q: Well, and rightfully so. I don't blame

you one bit because there's a serious

problem here, but if you didn't pull the

trigger, then we need to know what

exactly happened, okay?

Q: (Braden) It's up to you, Greg, what-

ever you want to do. Like he said.

A: Listen, I don't know exactly what

happened. | was not there.

Q: (Zarzour) Okay.

Q: (Braden) We know you met -- we

know you met him over at Pick-a-

Pack, we know y‘all left, we know you

brought him back. We know all that.

We know where you were, we have

got people that have seen you, we

know. It's like I told you earlier, we

already know.

Q: (Zarzour) That's why | said don't beat

around the bush, let's get to it and get

it over with.

A: Allright...

Brown I, 630 So. 2d at 483-84; App. 78-79.

The investigators did not cease the interrogation after

Mr. Brown's request for counsel. Indeed, Detective Zarzour

indicated that he understood that Mr. Brown was requesting

counsel. See id. at 483; App. 78. Then Sergeant Braden

ignored the request and proceeded to convince Mr. Brown

that the investigators already knew how he was involved in

PRIN

SOT TUE Pe er ent oie eee ea

the crime and implied to Mr. Brown that his statement was a

mere formality. See id. at 484; App. 79. As he had already

expressed to the officers that he was scared and did not want

to provoke any hostility from them, Mr. Brown reasonably

interpreted the continued questioning as a denial of his

request for counsel. It was not until after this colloquy that

Mr. Brown gave the investigators information about

Callahan's death. See id. Mr. Brown also made a written

statement, at the officers’ request, after the interrogation. See

id. at 483; App. 79.

Also during the course of this interrogation, the

investigators made several attempts to convince the Petitioner

that it "would be better" for him if he cooperated and told

them everything. They made several statements to the

Petitioner including the following among others:

Q: "Now, what you tell us and what you

help yourself is up to you, Greg, not

us. It's up to you. If you didn't pull

the trigger, you need to tell us. You

need to tell us who did and we need to

hear the whole story and be done with

it and get this thing over with and

clear it up, Greg, because it is putting

heat on everybody and you are going

to get some heat on you, but the de-

gree of heat you're going to get is up

to Greg. It's not up to us, it's up to

Greg. Okay?.. ."

"1 don't think if 1 didn't pull the trig-

| ger, Greg, I don't think I would take

the heat for it, buddy. To be truthfully

honest with you. It means a hell of a

lot of difference in the court's eye who

pulled the trigger, okay? I think it

makes a lot of difference.

But if he did, we need to know about

it and we need to straighten it up and

clear it up right now as fast as we can.

Because the longer we wait the

tougher it is for everybody. .. ."

"We have got to have — we have got to

have you help yourself here, Buddy.

Not us, you help yourself. And if you

are honest with us and you come

through this stuff — let's talk about it."

"Okay. I know it's hard for you. I'm

not going to say it is an easy task for

you to do this, but what I'm telling you

is the quicker we get this done, the

better it is going to be for you. Okay?

"All the arrows are pointing toward

Greg right now. And I don't think

that's fair. No, that's not. I don't think

that's fair at all. And I don't think -

personally, I don't think Jerry (the

aly

victim) would have wanted it that

way. I may be wrong.”

App. 51-53

It was only after these statements were made to him

that the Petitioner gave the incriminating statement that was

later used against him at tnal. And, as if that were not

enough, after the Petitioner had told them just about every-

thing, the investigator added the following comment to the

Petitioner:

Q: "And - I want to ask you something

else. So much of the cat is out of the

bag. I know we - we have got a lot of

loose ends to tie up, things we are

going to have to do. You have coop-

erated and | couldn't ask for anything,

you know, and like I said, that's what

I'll do for you - we will go in and do

the best we can do. I'm not a hard

ass for people who cooperate, okay?"

(emphasis added).

App. 54

It was only after the Petitioner's request for counsel

was denied, and these promises and inducements were made

that he gave the incriminating statements that were later used

at trial to link him to this cnme. Without Mr. Brown's

inculpatory statements, the State had little evidence (which

was circumstantial and tenuous at best) to connect Mr. Brown

to Gospodareck's murder of Callahan. See Brown I, 630 So.

2d at 485; App. 82 (reversing and remanding for new trial).

Hence, without the use of these illegally obtained statements,

there is a high probability that the jury would not have

convicted the Petitioner for this offense.

Proceedings Below

Petitioner Gregory Allen Brown was indicted in June

1991 for the murder of Jerry Wayne Callahan. Following a

pretrial suppression hearing, at which the trial judge ruled Mr.

Brown's oral and written statements would be admitted into

evidence, and the case went to trial on September 16, 1991.

After a five day trial, the jury returned a guilty verdict and

recommended a sentence of life imprisonment without the

possibility of parole. See Brown I, 630 So. 2d at 482; App.

74. The tnal judge accepted the recommendation and

sentenced Mr. Brown on November 1, 1991. See id.

Mr. Brown appealed his conviction and sentence to

the Alabama Court of Criminal Appeals. In an unanimous

decision, the Court of Criminal Appeals reversed the convic-

tion on the grounds that Mr. Brown's confession was secured

in violation of his constitutional rights. Brown I, 630 So. 2d

at 484; App. 82.

The State of Alabama's request for rehearing was

denied on September 30, 1993. As well, the State's Petition

for Writ of Certiorari was denied by the Alabama Supreme

Court on December 13, 1993. The State then filed a Petition

for Writ of Certiorari in this Court. This Court granted the

State's petition, vacated Brown I, and remanded the case back

to the Alabama Court of Criminal Appeals for further

consideration in light of Davis v. United States, 512 U.S. 452

(1994). See Alabama v. Brown, 513 U.S. 801 (1994); App.

“ue

;

Upon reconsideration, the Court of Criminal Appeals

disregarded its earlier factual finding that Mr. Brown's

statements were "clearly an invocation of his nght to coun-

sel." See Brown II, 63-71; Brown I, 630 So. 2d 484; App. 80.

In its opinion in Brown II, the Court of Cnminal Appeals

affirmed Mr. Brown's conviction and sentence. See Brown II,

668 So. 2d at 104-05; App. 69. The presiding judge, Judge

Taylor, dissented in a strong opinion which points out the

realities of the interrogation of "an intimidated suspect who

is in close confinement and is surrounded by law enforcement

officers." Brown II, 668 So. 2d at 105; App. 70-71.

Mr. Brown's application for a rehearing was denied

without opinion on May 5, 1995. See id. at 102; App. 63.

Mr. Brown then filed a Wnt of Certiorari in the Alabama

Supreme Court which was denied, over the dissent of Justice

Maddox, on September 15, 1995. See Ex parte Gregory Allan

Brown, 668 So. 2d 105 (Ala. 1996); App. 59-62. In his

dissent, Justice Maddox pointed out that just after Mr. Brown

made his request for counsel "that the interrogating officers

were aware that the statement by the defendant could 'reason-

ably [have been] construed to be an expression of desire for

the assistance of an attorney." Ex parte Gregory Allan

Brown, 668 So. 2d 105, 106-07 (Ala. 1996) (Maddox, J.,

dissenting) (quoting Davis, 512 U.S. at 459 (citation omitted

in original)); App. 61-62.

Mr. Brown's habeas corpus petition was filed in the

United States District Court for the Northern District of

Alabama on January 31, 1997. The petition asserts that Mr.

Brown was denied his constitutional nght to counsel during

his custodial interrogation. The petition also asserts that Mr.

Brown's confession was improperly extracted through

promises of beneficial treatment. On February 25, 1999, a

magistrate judge at the Northern District of Alabama entered

a Report and Recommendation that Mr. Brown's petition for

habeas corpus be denied. See App. 57. Thereafter, the

District Court entered an opinion, over Mr. Brown's objection

to the Report and Recommendation, that the petition for

habeas corpus be denied. See App. 18.

Although the District Court refused to issue a Certifi-

cate of Appealability, on April 24, 2000, the United States

Court of Appeals for the Eleventh Circuit granted in part and

denied in part Mr. Brown's petition for a Certificate of

Appealability. App. 2. The Certificate of Appealability was

granted only as to the issue whether Mr. Brown's statements

constituted a request for counsel that rendered his confession

inadmissible. On appeal the Eleventh Circuit affirmed,

without opinion, the District Court's decision thereby denying

Mr. Brown's petition for habeas corpus. Judgment was

entered in the Eleventh Circuit on March 29, 2001. App. 1.

Mr. Brown was convicted largely on account of

incriminating statements that he made during a custodial

interrogation. These statements were obtained in violation of

his rights under the Fifth, Sixth, and Fourteenth Amendments

to the United States Constitution. His conviction and sen-

tence should not be allowed to stand.

REASONS FOR GRANTING THE WRIT

I. MR. BROWN'S CONFESSION WAS

INADMISSIBLE BECAUSE HIS REQUEST

FOR COUNSEL WAS UNAMBIGUOUS __

The United States Constitution guarantees that "[n]o

person . . . shall be compelled in any criminal case to be a

Se ne hd AR ee ny ad Oe eee ae -

witness against himself" and that "the accused shall . . . have

the Assistance of Counsel." U.S. Const. amends. V, VI;

Miranda v. Arizona, 384 U.S. 436, 442 (1966). It has long

been held that a suspect in custody who has invoked his night

to counsel has the “undisputed right’ . . . to be free of interro-

gation ‘until he had consulted with a lawyer.” Edwards v.

Arizona, 451 U.S. 477, 485 (1981) (quoting Rhode Island v.

Innis, 446 U.S. 291, 298 (1980)). Indeed, the right to counsel

is such a significant nght that once invoked "the interrogation

must cease until an attorney is present." Id. (quoting

Miranda, 384 U.S. at 474).

A suspect's invocation of the nght to counsel "'re-

quires, at a minimum, some statement that can reasonably be

construed to be an expression of a desire for the assistance of

counsel." Davis v. United States, 512 U.S. 452, 459 (1994)

(quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). In

Davis, this Court held that a suspect's request for counsel

must be unambiguous. Id. at 459. Explaining this standard,

the Court stated, "[a]lthough a suspect need not 'speak with

the discrimination of an Oxford don,’ . . . he must articulate

his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would under-

stand the statement to be a request for an attorney." Id.

(citation omitted).

The Fifth Circuit recently stated that: "In deciding

whether a request for counsel is sufficiently clear to constitute

an invocation of the right to counsel, we must consider ‘the

totality of the circumstances,’ and we must also remain

mindful of the teachings of Michigan v. Jackson, 475 U.S.

625, 106 S. Ct. 1404, 1409, 89 L. Ed. 2d 631 (1986), wherein

the Supreme Court, cognizant of the settled principles of

indulging every presumption against waiver and resolving all

doubts in favor of protecting constitutional claims, stated that

the courts must ‘give a broad, rather than a narrow, interpreta-

tion to a [suspect's] request for counsel." Soffar v. Johnson,

237 F.3d 411, 455 (Sth Cir. 2000).

It is clear from the colloquy between Mr. Brown and

the detectives that not only should they have understood his

statement to be a request for counsel, but they in fact did

understand that Mr. Brown wanted to speak to an attorney.

As observed earlier, immediately following Mr. Brown's

statement "/i/s it going to piss y'all off if I ask for my -- to talk

to a friend that is an attorney. I mean, I'm going to do

whatever I have got to do. Don't get me wrong. . . ," Detec-

tive Zarzour responded, "/w/ell J understand that, I under-

stand what you are saying." In the context of the interroga-

tion, there is only one thing Zarzour could be understanding

-- Mr. Brown's desire to see a lawyer before he talked any

more unless it was going to make the officers angry.

In his dissenting opinion in Brown II, Presiding Judge

Taylor put Mr. Brown's request in the context of the custodial

interrogation:

The phrase, "Is it going to piss y'all off if..."

suggests that the interrogatee did not want to

arouse the anger of the interrogators. The

phrase, "I mean, I'm going to do whatever I

have got to do," indicates that the interrogatee

thought that he would have to make a state-

ment and was not refusing to "do whatever [he

has} got to do." The phrase, "Don't get me

wrong," again is a request to the interrogators

not to interpret any of the interrogatee's ac-

tions as hostile or uncooperative. Once these

fear-based qualifying statements from the

interrogatee are dealt with, what he is saying

is that he wanted to "talk to a friend that is an

attorney." This is a real-life interrogation and

a real-life request for an attorney by an intim-

idated suspect who is in close confinement

and is surrounded by law enforcement offi-

cers.

Brown Ii, 668 So. 2d at 105 (Taylor, P.J., dissenting) (empha-

sis added); App. 71.

Moreover, Justice Maddox dissented from the Ala-

bama Supreme Court's denial to grant certiorari of Brown II.

Justice Maddox observed that "the interrogating officers were

aware that the statement by the defendant could 'reasonably

[have been] construed to be an expression of a desire for the

assistance of an attorney."" Ex Parte Gregory Allan Brown,

668 So. 2d at 106 (Maddox, J., dissenting) (quoting Davis,

512 U.S. at 459); App. 61.

Justice Maddox further pointed out that:

Although all of the Justices of the Supreme

Court concurred in the result of the opinion in

the Davis case, four Justices concurred only

because the interrogators had stopped ques-

tioning after the defendant made his ambigu-

ous request, in order to determine if the defen-

dant was, in fact, requesting counsel. The

interrogators did this clearly and resumed their

questioning only after the defendant told them

that he was not requesting counsel at that

time. These four Justices (Justices Stevens,

Blackmun, Souter, and Ginsberg) concurred

for this reason and stated that they felt that a

rule should be adopted requiring officers to

inquire whether the defendant was asking for

counsel. ...

Id., App. 62.

Indeed, in this case both officers failed to cease the

interrogation, despite the fact that they knew Mr. Brown

expressed a desire for counsel. As previously noted,

Detective Zarzour explicitly expressed understanding of the

request: “Well, I understand that. I understand what you are

saying.” Ignoring the request, Detective Zarzour implied to

Mr. Brown, after Mr. Brown stated that he was “scared to

death,” that if he was not guilty, then he would not need a

lawyer: "Well, and rightfully so. I don't blame you one bit

because there's a serious problem here, but if you didn't pull

the trigger, then we need to know what exactly happened,

okay?" Sergeant Braden followed up by indicating that he

understood that Mr. Brown was requesting counsel, but

implying that counsel was not necessary and that Mr. Brown's

statement was a mere formality: "Jt's up to you, Greg,

whatever you want to do. Like he said... . We know you met

-- we know you met him over at Pick-a-Pack, we know y'all

left, we know you brought him back. We know all that. We

know where you were, we have got people that have seen you,

we know. It's like I told you earlier, we already know."

Detective Zarzour then told Mr. Brown: "That's why I said

don't beat around the bush, let's get to it and get it over with."

It was not until this peint that Mr. Brown -- believing that

they were not going to allow him to call counsel -- gave in to

the officers and made self-incriminating statements.

The police officer's questioning that followed Mr.

Brown's request for counsel is precisely what the Miranda

right to counsel rules seek to prevent. Namely, the interroga-

tion is supposed to stop "to prevent the police from badgering

a witness into waiving his previously asserted Miranda

rights." Davis, 512 U.S. at 458 (quoting Michigan v. Harvey,

494 U.S. 344, 350 (1990)). Indeed, in his dissenting opinion

from the denial of certiorari by the Alabama Supreme Court,

Justice Maddox observed that "the substance of the colloquy

could be construed as showing that the interrogators were

suggesting to the petitioner that if he was not guilty, then

there would be no need for counsel." Ex Parte Gregory Allan

Brown, 668 So. 2d at 106; App. 61-62.

It is clear from a review of the entire colloquy that the

police understood that Mr. Brown wanted counsel, and that

the police pushed him to proceed without providing an

opportunity to confer with counsel. These actions were in

direct violation of Mr. Brown's Fifth, Sixth, and Fourteenth

Amendment rights. Moreover, the application of the holding

in Davis to the facts of Mr. Brown's case was unreasonable in

light of his unequivocal request for counsel. See Williams v.

Taylor, 120 S. Ct. 1495, 1523 (2000). Consequently, Mr.

Brown's subsequent oral and written confessions were due to

be suppressed. Their admission at trial was reversible error

and mandates the granting of Mr. Brown's petition for habeas

corpus.

Il. THE LAW OF THE CASE DOCTRINE

PRECLUDED RECONSIDERATION

OF THE CLARITY OF MR. BROWN'S

REQUEST FOR COUNSEL

In its first opinion overturning Mr. Brown's convic-

tion, the Alabama Court of Criminal Appeals unanimously

held:

in this case, the appellant's request to speak to

a friend who is also an attorney was clearly

an invocation of his right to counsel. Fur-

ther interrogation by the investigators without

providing the appellant the opportunity to

confer with an attorney violated the appellant's

Fifth Amendment rights as discussed in

Miranda and Edwards.

Brown |, 630 So.2d at 484 (emphasis added); App. 80. This

factual finding by the Court of Criminal Appeals that Mr.

Brown's request to speak to his friend who is an attorney was

clearly an invocation of his right to counsel is the law of the

case and must be adhered to on subsequent review. The

holding in Davis does not affect the factual conclusion that

Mr. Brown's request for counsel was clearly invoked. Davis

only applies where a request for counsel is ambiguous.

Clearly, this is not the case here.

It is a well established principle of both Alabama and

federal law that "[u]nder the ‘law of the case’ doctrine, 'a court

is generally precluded from reconsidering an issue that has

already been decided by the same court, or a higher court in

the identical case." Callahan v. State, No. CR-97-1202, 1999

WL 254480 (Ala. Crim. App. Apr. 30, 1999) (quoting United

States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)).

When an issue has been decided by a court, that issue "contin-

ues to be the law of that case, whether or not correct on

general principles, so long as the facts on which the decision

was predicated continue to be the facts of the case." Stephens

v. Stephens, 718 So. 2d 54, 55-56 (Ala. Civ. App. 1998); see

also, ¢.g., United States v. Robinson, 690 F.2d 869, 872 (11th

Cir. 1982) ("Under the law of the case doctrine, both the

district court and the court of appeals generally are bound by

findings of fact and conclusions of law made by the court of

appeals in a prior appeal of the same case."). Accordingly,

once the Alabama Court of Criminal Appeals found that Mr.

Brown's statement was clearly a request for counsel, that

court was bound by its own decision. It should not have

reconsidered this factual finding after the case was sent back

down by this Court.

Indeed, "vacatur and remand by the Supreme Court

... does not create an implication that the lower court should

change its pnor determination." Hughes Aircraft Co. v.

United States, 140 F.3d 1470, 1473 (D.C. Cir. 1998). If this

Court had intended that the lower court's judgment be

reinstated, it would have done so as it often does. See Union

Pac. R.R. Co. v. Johnson, 249 F.2d 674, 676 (9th Cir. 1957)

(citing Gibson v. Phillips Petroleum Co., 352 U.S. 874 (1956)

and Williams v. Carolina Life Ins. Co., 348 U.S. 802 (1954)).

In fact, the Eleventh Circuit has observed that a vacatur and

remand by this Court requiring reconsideration of a decision

in light of anew Supreme Court decision does not "nullify al!

proceedings. On the contrary, it merely require{s] the court

to reconsider its opinion . . . in light of the new law set forth

in [the new Supreme Court decision]." United States v.

M.C.C. of Fla., Inc., 967 F.2d 1559, 1561 (11th Cir. 1992).

When this Court remanded Mr. Brown's case "for

further consideration in light of Davis v. United States"

(Alabama v. Brown, 513 U.S. at 801), the remand did not

give the Alabama Court of Criminal Appeals license to

reconsider whether Mr. Brown's statement was unambiguous,

but merely to apply Davis's holding to the already determined

facts of Brown. Namely, whether Mr. Brown's "clear

invocation of his right to counsel," and the officer's failure to

stop the interrogation violated Mr. Brown's constitutional

rights. Indeed, nothing in this Court's Order indicated that the

Court believed Mr. Brown's request to be ambiguous or

equivocal. See Alabama v. Brown, 513 U.S. at 801; App. 72;

see also Ex parte Gregory Allan Brown, 668 So. 2d 105, 106

(Ala. 1996) (Maddox, J., dissenting) (“I do not believe that

[the Supreme] Court, by remanding this case for consideration

in light of what it had said in Davis, determined that the

Brown's request was "ambiguous" or "equivocal."); App. 61.

Moreover, the district court erroneously concluded

that whether Mr. Brown's statement was equivocal or un-

equivocal was not an important factor in Brown I. See App.

at 8-9. The district court based its erroneous conclusion on

the grounds that the Court of Criminal Appeals (after con-

cluding that Mr. Brown's Fifth Amendment nights had been

violated by the officer's failure to terminate the interrogation)

hypothesized that "even if we assumed that the appellant's

request to speak to an attorney was equivocal or ambiguous,

the failure of the investigators to clarify his request to speak

to his attorney still violates Miranda." Brown I, 630 So. 2d at

484-85 (emphasis added); see also App. at 80-81.

The district court's conclusion that clarity of Mr.

Brown's statement was not important overlooks the fact that

the state of the law at the time Brown I was decided required

the Court of Criminal Appeals to determine whether a request

for counsel was equivocal or not. If the request was unequiv-

ocal, the interrogation must cease immediately. See Edwards,

451 U.S. at 484. If the request was equivocal the police were

required to clarify the request. See Owen v. Alabama, 849

F.2d. 536, 539 (11th Cir. 1988). Indeed, even subsequent to

Davis, the Alabama Court of Criminal Appeals held that

"[o}]nce a defendant makes an ambiguous or equivocal request

for an attorney, questioning must stop and the questioning

officer must determine whether the request was indeed a

request for counsel." C.S.H. v. State, 662 So. 2d 1230, 1231

(Ala. Crim. App. 1995) (citing Robinson v. State, 574 So. 2d

910 (Ala. Cr. App. 1990)).

Thus, the distinction was important, and was in fact

made by the Court of Criminal Appeals when it determined

that Mr. Brown's "request to speak to a friend who is also an

attorney was clearly an invocation of his right to counsel."

Brown I, 630 So. 2d at 484. Accordingly, it was error for the

Court of Criminal Appeals to disregard this holding when it

reviewed this case in light of Davis.> Moreover, the denial of

Mr. Brown's petition for habeas corpus is a manifest disregard

of the law of the case as established by the Court of Criminal

Appeals in Brown I. The opinion in Brown II, the district

court's opinion and the Eleventh Circuit’s decision are

contrary to the clearly established federal law articulated in

7 Contrary to the Court of Criminal Appeals' improper

disregard for its prior holding, Presiding Judge Taylor consistently

recognized that Mr. Brown's statement could only be interpreted as

an unambiguous invocation of his right to counsel. See Brown II,

668 So.2d at 105 (Taylor, P.J., dissenting); App. 70-71.

Miranda and Edwards. Consequently, Mr. Brown's petition

for habeas corpus should be granted.

Il. MR. BROWN'S CONFESSION WAS

INADMISSIBLE BECAUSE HIS

STATEMENT WAS OBTAINED

FOLLOWING PROMISES OF

BENEFICIAL TREATMENT

Mr. Brown's confession was also the result of im-

proper promises of beneficial treatment.* During the course

of his interrogation, the officers made several statements to

Mr. Brown that were promissory in nature -- promising that

if he confessed --things would be better for him. Thus, the

interrogation was tainted and these statements should not

have been admitted into evidence.

In 1897, this Court held that a defendant's confession

was inadmissible because it was acquired through the use of

inducements and promises. See Bram v. United States, 168

U.S. 532, 542-43 (1897). The Court set forth the standard to

be applied in determining whether a confession is admissible

in evidence:

. The Eleventh Circuit did not grant appeal of this issue.

However, the issue was raised in the petition for wnt of habeas

corpus and addressed by the District Court. It is Petitioner's

contention that the Eleventh Circuit's failure to allow the appeal of

this issue was error. This Court has authority to review the

Eleventh Circuit's denial of the certificate of appealability. See

Hohn v. United States, 524 U.S. 236, 118 S. Ct. 1969, 141 L. Ed.

2d 242 (1998).

Be Day ii

In criminal trials, in the courts of the United

States, wherever a question arises whether a

confession is incompetent because not volun-

tary, the issue is controlled by the portion of

the Fifth Amendment to the Constitution of

the United States commanding that no person

"shall be compelled in any criminal case to be

a witness against himself." ... A confession,

in order to be admissible, must -be free and

voluntary; that is, it must not be extracted by

any sort of threats or violence, nor obtained by

any direct or implied promises, however

slight, nor by the exertion of any improper

influence.

Id. (emphasis added); see also Brady v. United States, 397

U.S. 742 (1970).

This court has reiterated this holding and rule on

numerous occasions, consistently holding that confessions

acquired through the use of inducements or promises are not

voluntary and as such should not be admitted into evidence.

See Hutto v. Ross, 429 U.S. 28, 97 S. Ct. 202, 50 L. Ed. 2d

194 (1976); Malloy v. Hogan, 378 U.S. 1, 84S. Ct. 1489, 12

L. Ed. 2d 653 (1964); Haynes v. Washington, 373 U.S. 503,

83 S. Ct. 1336, 10 L. Ed. 2d $513 (1963); Crooker v. Califor-

nia, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed 1448 (1958).

In Brady v. United States, 397 U.S. 742, 90S. Ct., 25

L. Ed.2d 747 (1970), this Court reiterated the scrutiny that

courts are to apply when analyzing a case where a suspect is

not represented by counsel. In Brady, the prosecution

promised the defendant a lesser sentence if he pleaded guilty,

but the promise was made in the presence of the defendant's

attorney, while the defendant was not in custody. In holding

that this promise did not render the subsequent confession

inadmissible, the Court reiterated the principles of Bram:

"Bram dealt with a confession given by a

defendant in custody, alone and unrepresented

by counsel. In such circumstances, even a

mild promise of leniency was deemed suffi-

cient to bar the confession, not because the

promise was an illegal act as such, but be-

cause defendants at such times are too sensi-

tive to inducement and the possible impact on

them too great to ignore and too difficult to

assess."

Brady, 397 U.S. at 754.

In the present case, the Petitioner too was in custody,

was alone, and was unrepresented by counsel. Moreover, the

Petitioner was well-acquainted with the officers. As such, the

heightened scrutiny of Bram should be applied to this case.

In applying that standard, it becomes clear that the interroga-

tors made several improper promises of beneficial treatment,

which induced the Petitioner to make the incriminating

statements. Therefore, these statements cannot be said to be

voluntary, and hence should not have been admitted into

evidence against the Petitioner.

The statements made by the police officers prior to

Mr. Brown's confession were clearly promises of beneficial

treatment in exchange for the confession. For example,

Detective Zarzour stated:

SEAR Nea tN RI RE

You need to tell us who did [pull the

trigger] and we need to hear the whole story

and be done with it and get this thing over

with and clear it up, Greg, because it is putting

the heat on everybody and you are going to

get some heat on you, but the degree of heat

you're going to get is up to you Greg. . .

I don't think if I didn't pull the trigger,

Greg, | don't think I would take the heat for it,

buddy. To be truthfully honest with you. /¢

means a hell of a lot of difference in the

court's eye who pulled the trigger, okay? I

think it makes a lot of difference.

But if he did, we need to know about

it and we need to straighten it up and clear it

up nght now as fast as we can. Because the

longer we wait the tougher it is for every-

body. ...

App. 51-52. Detective Zarzour continued:

"We have got to have — we have got to

have you help yourself here, Buddy. Not us,

you help yourself. And if you are honest with

us and you come through this stuff — let's talk

about it."

"Okay. I know it's hard for you. I'm

not going to say it is an easy task for you to do

this, but what I'm telling you is the quicker we

get this done, the better it is going to be for

you. Okay?"

cet Re ei: ce acannon ts sms epmeanmnammnnnnrmemmmns minnie

ewe PE re Bee Bk eee ae

"All the arrows are pointing toward

Greg right now. And I don't think that's fair.

No, that's not. I don't think that's fair at all.

And I don't think - personally, I don't think

Jerry (the victim) would have wanted it that

way. I may be wrong.”

"And - I want to ask you something

else. So much of the cat is out of the bag. I

know we- we have got a lot of loose ends to

tie up, things we are going to have to do. You

have cooperated and I couldn't ask for any-

thing, you know, and like I said, that's what

I'll do for you - we will go in and do the

best we can do. I'm not a hard ass for

people who cooperate, okay?" (emphasis

added).

App. 53-54

While it is true that these pre-confession statements

were "exhortations to get him to tell the truth,” they also

clearly offer beneficial treatment in exchange for the "truth"

the officers were seeking. Zarzour went much further than

simply "making it clear to [Mr. Brown] that it was not their

job to establish that he was not the triggerman and that [Mr.

Brown] needed to tell them if he was not the triggerman" as

the Court of Criminal Appeals stated. See Brown 698 So. 2d

at 104; App. 69. Zarzour implied that if Mr. Brown quickly

confessed, the "heat" on him would be lessened, the judge

would look more favorably upon him, and Mr. Brown would

be "better" off confessing than withholding the truth.

Not insignificantly, the majority of these express and

implied promises of beneficial treatment immediately precede

Mr. Brown's invocation of his right to counsel and his

confession. Consequently, the only plausible conclusion to be

drawn from these facts is that Mr. Brown's confession was

induced by these express and implied promises of beneficial

treatment. Accordingly, the confession should have been

suppressed as having been obtained in violation of Mr.

Brown's Fifth, Sixth and Fourteenth Amendment rights.

Moreover, the courts below have misapplied clearly estab-

lished precedent of this Court and Mr. Brown's petition for a

writ of habeas corpus should be granted.

CONCLUSION

It is hereby respectfully requested, for the reasons

stated above, that: (i) this Court issue a Writ of Certiorari to

the United States Court of Appeals for the Eleventh Circuit;

(ii) issue a Writ of Habeas Corpus granting Gregory Brown

relief from his unconstitutionally obtained conviction and

sentence of life imprisonment without parole; and (iii) for

other, further or more general relief as may be appropriate.

Respectfully submitted,

Gregory D. Shelton

Attorney for Petitioner

Four Times Square

New York, NY 10036

(212) 735-3166

APPENDIX

Petitioner’s Appendix

Federal Habeas Corpus Decisions Page

Brown v. Hopper, No. 99-14139-F (11th Cir.

Se: ns ek a oak het aa ds kn ce eae l

Brown v. Hopper, No. 99-14139-F (11th Cir.

April 21, 2000) (order granting certificate of

I ch ta a ae) grein tee eel bee ea a 2

Brown v. Hopper, No. 97-B-0246-M (D. Ala.

i MER 6 es nee a a Oe EE ORE OER EASE Fes 3

Brown v. Hopper, No. 97-B-0246-M (D. Ala.

Feb. 25, 1999) (magistrate judge’s report & recommenda-

ree were yer e ree reer ay ae wre 19

Direct Appeal Decisions

Ex parte Gregory Allan Brown,

ee Ee Se, a er 58

Brown v. State, 668 So. 2d 102

CO eS. ee eer re rr rrr ree 63

Alabama v. Brown, 513 U.S. 801 (1994) ............ 72

Brown v. State, 630 So. 2d 481

fe er Cer rer err rer sre 73

Gregory Allen Brown v. Joe S. Hopper, Commissioner of

the Alabama Department of Corrections

No. 99-14139

IN THE UNITED STATES COURT-OF APPEALS

FOR THE ELEVENTH CIRCUIT

March 29, 2001, Filed

Appeal from the United States District Court for the

Northern District of Alabama

Before BIRCH and BLACK, Circuit Judges, and NESBITT’,

District Judge.”

PER CURIAM: AFFIRMED. See 1 Ith Cir. R. 36-1.'

Honorable Lenore C. Nesbitt, U.S. District Judge for the Southern

District of Florida, sitting by designation.

Judge Nesbitt did not participate in this decision. This case is

rendered by a quorum. See 28 U.S.C. § 46(d).

' 11 Cir. R. 36-1 provides: When the court determines that any of the

following circumstances exist:

(a) the judgement of the district court is based on findings

of fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is sufficient;

substantial evidence on the record as a whole;

(d) a summary judgement, directed verdict, or judgement

on the pleadings is supported by the record;

(e) the judgement has been entered without a reversible

error of law;

and an opinion would have no precedential value, the judgement

or order may be affirmed or enforced without opmion.

Gregory Allen Brown v. Joe S. Hopper, Commissioner

of the Alabama Department of Corrections

No. 99-14139-F

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

April 21, 2000, Filed

Appeal from the United States District Court for the

Northern District of Alabama :

ORDER:

Appellant’s motion for certificate of appealability is

GRANTED on the following issue(s) only:

Whether Brown’s statements constituted a

request for counsel that rendered his subse-

quent confession inadmissible and whether

the law of the case doctrine precluded the

admission of these statements on remand.

No certificate of appealability should issue on the remain-

ing issues appellant raises, because he failed to make a

substantial showing of the denial of a constitutional night,

see 28 U.S.C. § 2253(c)(2).

/s/_ STANLEY MARCUS

UNITED STATES CIRCUIT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

GREGORY ALLEN BROWN,

Petitioner,

JOE S. HOPPER, COMMISSIONER OF

THE ALABAMA DEPARTMENT OF

CORRECTIONS,

Respondent.

CIVIL ACTION NO. 97-B-0246-M

Entered Sept. 21, 1999

MEMORANDUM OPINION

Petitioner Gregory Allen Brown ("the petitioner”)

contests his 1991 capital murder conviction pursuant to 28

U.S.C. § 2254. A magistrate judge of this court reviewed

the claims presented by the petitioner and recommended

that the petition be denied. Counsel for the petitioner has

filed a number of objections to the Report and Recommen-

dation of the magistrate judge. Counsel asserts that the

magistrate judge improperly concluded that (1) the peti-

tioner did not invoke his nght to counsel; (2) the peti-

tioner's confession was not obtained following promises of

beneficial treatment; and, (3) the petitioner's claim of insuf-

ficient evidence is procedurally barred. Upon careful con-

sideration of the record, the submissions of the parties, and

the relevant law, this court is of the opinion that the Report

and Recommendation of Magistrate Judge John E. Ott is

due to be adopted and approved.

I. RIGHT TO COUNSEL

A. The Objections

The petitioner asserts that the magistrate judge

mistakenly found that his inquiry, "Is it going to piss y'all

off if 1 ask for my-to talk to a friend that is an attorney. . . ,"

was not an unambiguous request for counsel, mandating

that the police discontinue the custodial questioning. In

support of this claim, the petitioner asserts that the failure

of the Alabama Court of Criminal Appeals to follow its

earlier holding and the magistrate judge's independent

review and conclusion that this statement was not an unam-

biguous request violates the law of the case doctrine. He

also asserts that his inquiry was an invocation of his right to

counsel. Therefore, the subsequent statement that was

obtained by the law enforcement officers violated his Fifth,

Sixth, and Fourteenth Amendment rights.

B. Pertinent Facts

The Alabama Court of Criminal Appeals on direct

appeal of the petitioner's conviction found:

In this case, the appellant's request to speak

to a friend who is also an attorney was

clearly an invocation of his right to counsel.

Further interrogation by the investigators

without providing the appellant the opportu-

nity to confer with an attorney violated the

appellant's Fifth Amendment rights as dis-

cussed in Miranda and Edwards.

Brown vy. State, 630 So. 2d 481, 484 (Ala. Crim. App.

1993). The court reversed the petitioner's conviction and

remanded the case for a new trial. The state's application

for a rehearing and for a writ of certiorari were denied by

the state courts.

The United States Supreme Court granted the state's

petition for a writ of certiorari on October 3, 1994. The

judgment was vacated and the case remanded to the Ala-

bama Court of Criminal Appeals for further consideration

in light of Davis v. United States, 512 U.S. 452 (1994).

Alabama v. Brown, 513 U.S. 801 (1994). The Court of

Criminal Appeals affirmed the petitioner's conviction on

March 3, 1995. Brown v. State, 668 So. 2d 102 (Ala. Cnm.

App. 1995). Concerning the petitioner's statement that is

the crux of this issue, the court held:

This is certainly not an unambiguous request

for counsel as required by Davis. Therefore,

the appellant's assertion that his statements

to the police should have been suppressed

because, he says, they were obtained in vio-

lation of Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and

Edwards v. Arizona, 451 U.S. 477, 101 S.

Ct. 1880, 68 L. Ed. 2d 378 (1981), is with-

out merit.

Brown, 668 So. 2d at 103. His application for rehearing was

denied, as was his petition for a writ of certiorari. Ex parte

Brown, 668 St 2d 105 (Ala. 1995).

C. Discussion

1. Law of the Case Doctrine

The petitioner contends that the statement by the

Alabama Court of Cnminal Appeals in its initial decision

that petitioner's "request to speak to a friend who is also an

attorney was clearly an invocation to his nght to counsel" is

the law of the case. He argues that the subsequent holdings

by the Court of Criminal Appeals and the magistrate judge

that this statement was an equivocal request for an attorney

violated the law of the case doctrine. Generally, a "vaca-

tion by an appellate court of the lower court's judgment

vacates the entire judgment below, divesting the lower

court's earlier judgment of its binding effect." United

States v. M.C.C of Florida, Inc., 967 F.2d 1559, 1561 (11th

Cir. 1992). However, a "vacation which merely requires

further consideration in light of a new Supreme Court

decision . . . is of a much more limited nature." /d. at 1562.

The effect of such a vacation "was not to nullify all pro-

ceedings. On the contrary, it merely required the court to

reconsider its opinion.. . in light of the new law set forth in

[the new Supreme Court decision]." /d.

At the time of the initial decision of the Alabama

Court of Criminal Appeals, the United States Supreme

Court had yet to release its opinion in Davis. Under pre-

Davis law, once an accused expressed his desire to commu-

nicate with the police through counsel, questioning of the

accused must cease unless the accused subsequently initi-

ated further communication with the police. Edwards v.

Arizona, 451 U.S. 477, 484 (1981). Ifthe accused made an

equivocal request for counsel, the police were required to

clarify that request before any further questioning could

take place. Owen v. Alabama, 849 F.2d 536, 539 (1 1thCir.

1988).

In its initial opinion, the Court of Criminal Appeals

stated that "the appellant's request to speak to a friend who

is also an attorney was clearly an invocation of his right to

counsel." Brown v. State, 630 So. 2d 481, 484 (Ala. 1993)

However, after the court made that statement, its discussion

of this issue continued:

The State argues in its brief that, "At most,

the comments made by appellant could be

considered an equivocal invocation of his

right to counsel." However, even if we as-

sumed that the appellant's request to speak

to an attorney was equivocal or ambiguous,

the failure of investigators to clarify his re-

quest to speak to his attorney still violates

Miranda. .. . Contrary to the State's argu-

ment, we hold that at the very least the ap-

pellant's comment was an equivocal request

to speak to counsel. Additionally, we con-

clude that the investigators did not clarify

the appellant's request to confer with coun-

sel.... Thus, regardless whether the appel-

lant's request to speak to his friend who is an

attorney is considered a clear request or is

considered an equivocal request, the investi-

gators’ failure to respond to or to clarify that

request nonetheless violated the appellant's

Fifth Amendment rights.

Id. at 484-85.

Despite the previous statement that the request was

"clearly an invocation of the nght to counsel,” it is clear in

the context of the entire opinion that the Court of Criminal

Appeals did not conclusively decide whether the request

was equivocal or unequivocal. Instead of holding that the

request was unequivocal, the court stated that no matter

whether the request was equivocal or not, the accused's

Fifth Amendment rights were violated. Thus, the distinc-

tion between whether the request was equivocal or unequiv-

ocal was not an important factor in the decision and, there-

fore, the court failed to conclusively make that distinction.

However, in its subsequent decision on remand

from the United States Supreme Court, the Court of Crimi-

nal Appeals was directed to reconsider its opinion in light

of the new Supreme Court decision in Davis. In Davis, the

Supreme Court held that an accused must unequivocally

request an attorney in order to require officers to cease their

questioning of the accused. Davis, 512 U.S. at 459-60. An

equivocal request does not require officers to cease ques-

tioning or further clarify the request of the accused. /d.

After the Davis decision, the question of whether

the petitioner made an equivocal or unequivocal request for

counsel became important. The Court of Criminal Appeals

on remand was called upon to make a distinction which it

had not been previously required to make. Because in its

previous decision, the court had not conclusively decided

whether the request was equivocal or unequivocal and new

Supreme Court law made such a distinction crucial, it was

free to visit this question on remand. The law of the case

doctrine did not preclude the Court of Criminal Appeals

from deciding on remand whether the request of the peti-

tioner for counsel was equivocal or unequivocal Therefore,

the decision of the Court of Criminal Appeals and the

magistrate judge did not violate the law of the case doc-

trine.

I Actual Invocation of the

Right to Counsel

As part and parcel of the first challenge, the peti-

tioner also asserts that

... the Magistrate Judge glosses over the

fact that Detective Zarzour responded to Mr.

Brown's request by stating, "Well, I under-

stand that. I understand what you are say-

ing." Instead, the Court indicated that "the

record shows that immediately after the

terse, ambiguous statement by the petitioner,

lie began to explain his involvement in the

crime."

(Doc. 29, p. 4).' The petitioner also claims that the magis-

trate judge's review further excludes the fact that the peti-

tioner "did not explain his involvement in the crime until

The designation “Doc. 29" indicates the number assigned to the

document when it was filed with the district court. The documents appear

in the district court file in numencal order and the document number

appears in the bottom nght-hand corner on the first page of each

document.

after Detective Zarzour stated that he understood [the peti-

tioner's] request for counsel. And after Detective Braden

proceeded to attempt to convince [the petitioner] that they

already knew how he was involved in the crime and im-

plied to Mr. Brown that his statement was a mere formal-

ity." (/d., p. 5).

The Report and Recommendation of the magistrate

judge did not gloss over Detective Zarzour's reply to the

petitioner. To the contrary, it was placed in context on

pages 27 and 28 of the Report. Because so much is lost

when statements are taken out of context, the court will

again cite the pertinent portion of the recorded interview, as

delineated by the magistrate judge:

About one-third of the way through the in-

terview, when the officers asked him [the

petitioner] to go back through the events, the

following occurred:

Q (By Sgt. Braden) From the very start.

Q (By Det. Zarzour) From the very start. From the

time he gave you the letter—

A [appellant] Okay.

Q Go ahead.

A Is it going to piss y'all off if I ask for my—to

talk to a friend that is an attorney. I mean, I'm

going to do whatever I have got to do. Don't get

me wrong.

ne ere

Q Well, I understand that I understand what

you are saying.

A: You have got to realize, man, I’m... scared

to death.

Q: Well, and rightfully so. I don't blame you one

bit because there's a serious probiem here, but if

you didn't pull the trigger, then we need to know

what exactly happened, okay?

Q (By Sgt. Braden): It's up to you, Greg, what-

ever you want to do. Like he said.

A Listen, I don't know exactly what happened.

I was not there.

Q (By Det. Zarzour): Okay.

Q (By Sgt. Braden): We know you met--we

know you met him over at Pick-a-Pack, we know

y'all left, we know you brought him back. We

know all that. We know where you were, we

have got people that have seen you, we know.

It's like I told you earlier, we already know.

Q (By Det. Zarzour) That's why I said don't

beat around the bush, let's get to it and get it

over with.

A Allright...

(Doc. 13, Ex. D, Tr. pp. 32-34)(emphasis added).

In United States v. Mendoza-Cecelia, 963 F.2d 1467

(11th Cir. 1992), the Eleventh Circuit faced a situation

where a similar reference was made to an attorney by the

defendant. The suspect's statement during questioning that

"I don't know if I need a lawyer, maybe I should have one,

but I don't know if it would do me any good at this point,"

was found to be an equivocal request for an attorney. /d. at

1472. The Eleventh Circuit held that the suspect's state-

ment "clearly reveals that he was ‘contemplating exercising

his right to have an attorney present.’ (citation omitted).

Having indicated a ‘possible desire’ for an attorney, . . .

[suspect] made a qualifying equivocal indication." Id. at

1472. In the present case, the petitioner's question of "[1]s

it going to piss y'all off if I ask for my-to talk to a frend

that is an attorney," is similarly an indication of a "possible

desire" for an attorney and not an unequivocal request for

one.

In Coleman v. Singletary, 30 F.3d 1420 (11th Cir.

1994), the defendant was being questioned for the murder

of his sister by police detectives. During Coleman's tape-

recorded confession (and after he was read his Miranda

rights), a telephone call from a public defender interrupted

the questioning. The detectives told Coleman that the

public defender requested that they "cease any further

interview at this time." The public defender informed an

assistant state attorney that she intended to instruct

Coleman not to answer any further questions. However,

the assistant state attorney refused to allow the public de-

fender to speak to Coleman on the phone and did not tell

him that the public defender planned to instruct him not to

answer any more questions. The officers then turned the

tape recorder back on and the following exchange took

place:

Q (by Det. Valente): "and what you're saying, or

what you're about to say you're going to do of your

own free will; is that correct?"

A(Coleman): "Yes. Unless, what about that one

guy, though.”

Q (by Det. Valente): "What guy?"

A (Coleman): "The guy--"

Q (by Det. Rigney): "Public defender"

A (Coleman): "Yeah."

Q (Det. Valente): "Okay."

Q (Det. Rigney): "I explained to him what the pub-

lic defender was--"

Q (Det. Valente): "Okay. Tony, do you feel you

want to_have a public defender?"

A (Coleman): "I don't know. But if be said to stop

it I don't want to do what he said not to do."

Q (By Det. Valente): "All right. Well, do you have

any objections to talking to us? It's up to you.

Now, again, you know what our job is. We need to

know what happened, and that's basically it. But we

don't want to do anything, we don't want to force

you to do anything that you don't want to do. If you

want to talk to [us], fine, we'll continue with the

conversation. You can stop anytime you want to

stop. You can ask us any questions but it's up to

you. If you want to talk to us, we'll listen. If you

want us to stop asking questions, we'll do that."

A (Coleman): "I guess if that guy thinks its all nght,

I don't care."

Coleman argued that the trial court erred in admit-

ting his statements made after this exchange took place

because he made a request for an attorney. The court stated

that Coleman's statement was "capable of equally plausible,

differing interpretations." Coleman, 30 F.3d at 1425-26.

The Eleventh Circuit, citing Davis, held that the trial court

properly admitted the entire statement because it was an

equivocal request for an attorney. /d. at 1426. In the pres-

ent case, the petitioner's question of whether it would "piss

y'all off if 1 ask for my-to talk to a friend that is an attor-

ney,” is similarly unclear as to whether he was requesting

an attorney.

In the opinion of this court, the inquiry by the peti-

tioner was not the unambiguous, unequivocal request that a

law enforcement officer would have reasonably understood

as an invocation of the nght to counsel. Detective

Zarzour's statement that he understands follows the peti-

tioner's inquiry and the petitioner's statement, "I am going

to do whatever I have got to do. Don't get me wrong."

(Id.). Detective Braden then makes it clear to the petitioner

that the decision to talk to the officers or to invoke his right

to counsel is the petitioner’s choice. At this point, the

petitioner clearly has not invoked his right to counsel. He

then decides to answer the officers' questions. Upon a

review of the record, the Report and Recommendation, and

the petitioner's objections, the court agrees with the magis-

trate judge that, after full consideration of the petitioner's

inquiry, Detective Zarzour's and Detective Braden's com-

ments, "the dynamics involved in custodial interrogations

between the interrogator and the individual being ques-

tioned, and the context," the standard set forth in Davis has

not been satisfied. (Doc. 19, p. 29).

Il. PROMISES OF BENEFICIAL TREATMENT

The petitioner next asserts that the magistrate judge

incorrectly concluded that the petitioner's confession was

not the result or improper promises of beneficial treatment.

(Doc. 29, p. 6). According to the petitioner, the magistrate

judge misapplied the standard set forth in Bram v. United

States, 168 U.S. 532, 542-43 (1897), that a confession

cannot be obtained by "any direct or implied promises,

however slight, nor by the exertion of any improper influ-

ence."

Contrary to the petitioner's assertions, the magis-

trate judge applied the correct standard in reviewing the

voluntariness of his confession:

Concerning the second claim, that his state-

ments were prompted by unlawful induce-

ments and actions, and therefore involuntary

(citation omitted), the clearly established

Supreme Court precedent requires an inquiry

into whether, under the totality of the cir-

cumstances, the confession was voluntarily

obtained by the police or whether it was

improperly obtained through the use of any

direct or implied promises or the exertion of

any improper influence that rendered it in-

voluntary ...

(Doc. 19, p. 20)(citations omitted).

Reviewing the transcript of the interview, particu-

larly the portions quoted by counsel for the petitioner in the

objections, the court finds that the petitioner's statements

were knowingly, voluntarily, and intelligently made. The

actions and comments of the detectives in this case did not

violate the petitioner's Fifth, Sixth, and Fourteenth Amend-

ment rights as alleged.

Ill. SUFFICIENCY OF THE EVIDENCE

Lastly, the petitioner asserts that the magistrate

judge incorrectly found that his challenge to the sufficiency

of the evidence was procedurally barred for failure to raise

the claim in state court. (Doc. 29, p. 9). He asserts, con-

trary to the magistrate judge's finding, that this claim was

raised on direct appeal. The court does not agree.

"Exhaustion of state remedies requires that the state

prisoner ‘fairly presen[{t] federal claims to the state courts in

order to give the State the opportunity to pass upon and

correct alleged violations of its prisoners’ federal rights."

Snowden v. Singletary, 135 F.3d 732, 735 (11" Cir. 1998),

cert. denied U.S._,119S. Ct. 405 (citing Duncan v.

Henry, 513 U.S. 364, 365 (1995)). The petitioner must

make the state court aware of the particular federal consti-

tutional issue. Snowden, 135 F.3d at 735.

On direct appeal, the petitioner presented two spe-

cific issues:

I. Is the admission of a confession obtained

from a defendant in custody, after he has

requested an attorney and the request disre-

garded, a violation of both the Fifth and

Sixth Amendments to the United States

Constitution so as to require a reversal of a

conviction obtained thereby?

II. Is the admission of a confession obtained

following promises of beneficial treatment

to the accused by interrogating officers a

violation of the Alabama Constitution and

the United States Constitution so as to re-

quire a reversal of a conviction obtained

thereby?

(Doc. 13, Ex. D, p. 2). Both issues clearly challenged the

admissibility of the confession on constitutional grounds.

One sentence in the argument portion of the brief states,

"[i]t cannot be seriously disputed that all, or at least practi-

cally all, of the State's evidence which tended to directly

connect the appellant Brown to the death of Jerry Callahan

was furnished by a transcribed and videotaped statement

which was extracted from the appellant by police detectives

from the city of Hoover, Alabama, after he had been taken

into custody at the jail of that city." (Doc. 13, Ex. D, p. 5).

This statement is not the sufficient presentation of the

federal constitutional claim to the state courts that is re-.

quired.’

2 In reaching this conclusion, the court notes that the same statement is

found in the petitioner's application for a rehearing when the Court of

Criminal Appeals affirmed his conviction on remand. (See Doc. 13, Ex.

(continued...)

Even were this claim properly before the court, the

petitioner would not be entitled to any relief. Contrary to

the petitioner's assertion, the magistrate judge did not erro-

neously consider the petitioner's confession in assessing the

sufficiency of the evidence. The confession was properly

considered by the magistrate judge as it constituted admis-

sible evidence of the petitioner's guilt. Further, reviewing

the claim under the standard set forth in Jackson v. Vir-

ginia, 443 U.S. 307 (1979), the court also concludes the

petitioner is not entitled to relief.

IV. CONCLUSION

The court has considered the entire file in this ac-

tion, including the Magistrate Judge's Report and Recom-

mendation, and the objections of the petitioner and has

reached an independent conclusion that the Report and

Recommendation is due to he adopted and approved. The

court hereby adopts and approves the findings and recom-

mendation of the magistrate judge as the findings and

conclusions of the court. The petition for writ of habeas

corpus is due to be dismissed. An Order in accordance

with this Memorandum Opinion will be entered contempo-

raneously herewith. \

DONE this 21“ day of September , 1999.

Sharon Lovelace Blackburn

United States District Judge

(...continued)

L, p. 5). Counsel for the petitioner further asserts, and the court assumes

for purposes of this review, that the statement was also similarly

referenced in his petition for a writ of certiorari. This assumption is

necessary as the record does not include the petitioner's brief, but only the

petition, which does not include the statement. (See Doc. 13, Ex. M).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

A ADL NES hl ate

GREGORY ALLEN BROWN,

| Petitioner,

: V.

JOE S. HOPPER, COMMISSIONER OF

THE ALABAMA DEPARTMENT OF

CORRECTIONS,

Respondent.

Pry eee ee Sn a a

CIVIL ACTION NO. 97-B-0246-M

Entered Feb. 25, 1999

MAGISTRATE JUDGE'S REPORT AND

RECOMMENDATION

Petitioner Gregory Allen Brown, with the assistance

of counsel, filed a petition for writ of habeas corpus with

this court on January 31, 1991. He challenges the validity

of his 1991 conviction in the Circuit Court of Jefferson

County on a charge of capital murder. In accordance with

the usual practices of this court, the petition was referred to

a magistrate judge for a preliminary review and recommen-

dation.

In response to an order to show cause why the relief

requested by the petitioner should not be granted, the re-

spondent filed a motion to dismiss wherein they request

that the petition he dismissed as it was barred by the

Antiterrorism and Effective Death Penalty Act (AEDPA).

(Doct. 7). The petitioner filed a response to the motion.

(Doct. 10). The motion was denied and the respondent was

required to submit an answer. (Doct 11). The court in-

formed the petitioner of his night to dispute any facts as-

serted in any answer the respondent may submit by filing a

sworn response to the answer. (Doct. 11, p. 6). The answer

was filed September 15, 1997. (Doct. 13).

By order of the court, the parties were notified that

the court deemed the case ripe for summary disposition.

The petitioner was informed of his right to file affidavits or

other materials to show wiiy the petition should not be

summarily denied or dismissed on the basis of the answer

and record. (Doct. 15). Counsel for the petitioner filed a

response to the order. (Doct. 18).

I. PROCEDURAL HISTORY

Petitioner was charged in an indictment with two

counts of capital murder. His counsel filed a motion to

suppress his statement to the police. A hearing on the

motion was held by the trial court on September 3, 1991.

The motion to suppress was denied on September 13, 1991.

(Doct. 13, Ex. C, p. 2). He was convicted after a jury trial

in Jefferson County Circuit Court on September 20, 1991.

(Doct. 3, Ex. A, p. 1834). He was sentenced to life impris-

onment without the possibility of parole on November 1,

1991, as recommended by the jury. (/d. at p. 5). A timely

notice of appeal was filed. On appeal, the petitioner as-

serted that (1) the admission of his confession at trial vio-

lated the Fifth and Sixth Amendments and (2) the admis-

sree se) nant ene .

i tet athe in Bi Nia N.S Pash CO ACR NAA EAL ASSES EADIE RADIA ILD. SARIS oy

sat .

i al a hs a at a ey

sion of his confession was in error because it was obtained

upon promises of beneficial treatment. (Doct. 13, Ex. D, p.

2). The Alabama Court of Criminal Appeals reversed the

petitioner's conviction and remanded the case for a new

trial in a published opinion on August 13, 1993. Brown v.

State, 630 So. 2d 481 (Ala. Cr. App. 1993). The State's

application for a rehearing was denied on September 30,

1993. The State's petition to the Alabama Supreme Court

for a writ of certiorari was also denied.

The United States Supreme Court granted the

State's petition for a wnt of certiorari on October 3, 1994.

The judgment was vacated and the case remanded to the

Alabama Court of Criminal Appeals for further consider-

ation in light of Davis v. United States, 512 U.S. 452, 114

S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (Doct. 13, Ex. K).

The Court of Criminal Appeals affirmed the petitioner's

conviction on March 3, 1995. Brown v. State, 668 So.2d

102 (Ala. Crim. App. 1995). His application for rehearing

was denied on May 5, 1995. The Alabama Supreme Court

denied his petition for a writ of certiorari on September 15,

1995. Brown v. State, 668 So. 2d 1052 (Ala. 1995).

The present petition for habeas corpus relief was

filed on January 31, 1997. He claims that (1) his conviction

is improperly premised solely on the basis of an illegal

confession, (2) his confession was unconstitutionally ob-

tained after he asserted his right to counsel, and (3) his

confession was improperly obtained as is a result of im-

proper promises of beneficial treatment (Doct. 1). The

respondents assert that his first challenge to the sufficiency

of the evidence is procedurally barred and that the remain-

ing challenges are due to be denied as the State courts

properly applied the applicable Supreme Court case law.

(Doct. 13, pp. 7, 17).

Il. PROCEDURAL DEFAULT

A. Generally

The federal courts' authority to review state court

criminal convictions is severely restricted when the peti-

tioner has failed to present the claims in state court or when

he fails to follow applicable state procedural rules. Teague

v. Lane, 489 U.S. 288, 297-98 (1989); Johnson v.

Singletary, 938 P.2d 1166, 1173 (11" Cir. 1991), cert.

denied, 506 U.S. 930, 113 8. Ct. 361, 121 L. Ed. 2d 274

(1992). "[OJnce the federal claim has been fairly presented

to the state courts, the exhaustion requirement is satisfied."

Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.

Ed. 2d 438 (1971).

There are only two exceptions that allow this court

to review the merits of a claim that has been procedurally

defaulted. First, the petitioner must demonstrate both cause

excusing the default and actual prejudice resulting from the

bar. Second, in extraordinary cases, a federal court may

grant the writ without a showing of cause and prejudice to

correct "a fundamental miscarriage of justice." Hill v.

Jones, 81 F.3d 1015, 1022-23 (11% Cir. 1996), cert. denied,

__ US. __, 1175S. Ct. 967 (1997). Under the latter excep-

tion, the petitioner must show that "a constitutional viola-

tion has probably resulted in the conviction of one who is

actually innocent." Hill, 81 F.3d at 1023, citing Murray v.

Carrier, 477 U.S. 478, 496 (1986); Sims v. Singletary, 155

F.2d 1997, 1311 (11" Cir. 1998).

B. Petitioner's First Claim is Procedurally

Barred

The respondent asserts that to the extent the peti-

tioner now claims that the evidence was insufficient to

support his conviction, it is procedurally barred. They are

correct. First, he did not raise this claim on direct appeal.

Second, even if he were to file a Rule 32 petition raising

this claim, it would be due to be dismissed as having been

filed outside the applicable limitations period under Rule

32.2(c).! Third, any Rule 32 petition challenging the suffi-

ciency of the evidence would be barred under Rule 32.2(a)

(5)° since this issue could have been but was not raised on

' Rule 32.2(c) of the Alabama Rules of Criminal Procedure provides in

pertinent part:

[TJhe court shall not entertain any petition for relief from a

conviction or sentence unless the petition is filed: (1) In the case

of a conviction appealed to the court of Criminal appeals, within

two (2) years after the issuance of the certificate of judgment by

the Court of Criminal Appeals ...; or (2) In the case of a convic-

tion not appealed to the Court of Criminal Appeals, within two

(2) years after the time for filing an appeal lapses. The court

shall not entertain a petition ... unless the petition is filed within

the applicable two-year period ... or within six (6) months after

the discovery of the newly discovered material facts, whichever

is later ...

? Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure provides:

(a) Preclusion of Grounds. A petitioner will not be given

relief under this rule based upon any ground:

(5) Which could have been but was not raised on appeal,

unless the ground for relief arises under Rule 32.1(b) [lack of

jurisdiction].

appeal. Shoulders v. State, 703 So. 2d 1015, 1017 (Ala.

Crim. App. 1997)

This court is not required to dismiss this claim as

unexhausted because the default is apparent and it would be

futile to send the petitioner back to state court only to be

faced with the default. Collier v. Jones, 910 F.2d 770 (11"

Cir. 1590); Widdon v. Dugger, 894 F.2d 1266 (11" Cir.),

cert. denied, 493 U.S. 834 (1990).

Petitioner's claims may only be reviewed if he can

show "'cause and prejudice’ for his procedural default or

that he is ‘actually innocent." Sims, 155 F.3d at 1311. If

the petitioner fails to show cause for the default, it is not

necessary to consider whether he also suffered actual preju-

dice under the first exception. Engle v. Isaac, 456 U.S.

107, 134 n.43, 102 S. Ct. 1553, 71 L. Ed. 2d 783 (1982).

c. The Cause and Prejudice Exception

Despite being afforded the opportunity, the peti-

tioner has failed to demonstrate cause for his default. In his

only statement on this aspect, he asserts "that this issue

logically flows front the bigger issue of the admissibility of

the petitioner's statement." (Doct. 18, p. 2). This is not

sufficient. Because this claim was not adequately presented

in the state courts, it may not be reviewed unless there is a

further showing of actual innocence.

D. The Fundamental Miscarriage of Justice

Exception :

Upon a review of the entire record, particularly the

trial transcript, the court finds that the petitioner has not

demonstrated that "a fundamental miscarriage of justice"

occurred in this case. Hill, 81 F.3d at 1023. As will be

discussed herein, the record does not support a conclusion

that "a constitutional violation has probably resulted in the

conviction of one who is actually innocent." Jd. To the

contrary, the evidence adduced at trial and the record on

appeal and before this court conclusively establish the

petitioner's guilt. Accordingly, the petitioner's challenge to

the sufficiency of the evidence is procedurally barred from

review by this court.*

Ill. THE FACTS OF THE OFFENSE OF

CONVICTION

The facts underlying petitioner's conviction were set

out in detail in the opinion of the Alabama Court of Crimi-

Even were this court to address the petitioner's insufficiency of the

evidence claim on the merits, it would be due to be denied. The case that

would govern the petitioner's challenge to the evidence is Jackson v.

Virginia, 443 U.S. 307, 99 S. Ct. 2761, 61 L. Ed. 2d 560 (1979). In

Jackson, the court held that the issue is "whether, after viewing the

evidence in the light most favorabie to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson, 443 U.S. at 319. The petitioner is entitled to

relief only if it is shown that "no rational trier of fact could have found

proof of guilt beyond a reasonable doubt.” /d. at 224. The evidence

adduced at trial, outlined in the State appeal, and quoted below, clearly

established the petitioner's guilt. The petitioner in no way approaches the

Jackson standard for relief.

nal Appeals and are supported by the record. The court

found that the evidence established:

Jerry Wayne Callahan, the victim,

was the owner of a wholesale diamond busi-

ness and owned a 90% interest in Riverchase

Jewelers, a jewelry store in Jefferson

County, Alabama. The evidence tended to

show that the businesses owned by Callahan

were in serious financial trouble. The appel-

lant owed approximately $1,100,000 on

notes secured by the businesses, which he

told witnesses he could not pay.

The appellant (the petitioner herein)

was a friend of Callahan's and became ac-

quainted with him through gambling ven-

tures. The appellant was the dealer in high

stakes card games in which Callahan partici-

pated. Witnesses for the State testified that

the appellant and Callahan had participated _

in a card game on the night of February 6,

1991, and that Callahan had won $15,000.

The following day, February 7, 1991, the

appellant paid Callahan $9,000 of the money

that he had won at the card game.

Pat Costello, who owned the remain-

ing 10% Interest in Riverchase Jewelers,

testified that Callahan had been upset over

his financial situation and that he once com-

mented that he would be better off dead. He

testified that Callahan did not come into the

store on February 7, 1991, the day of

a hee week aac i nad

;

Callahan's death. He said that on that day

the appellant had come to the store twice,

once to pick up a large diamond ring, the

appraised value of which was $15,000, and

the next time to pick up paper-work regard-

ing the ring. According to Costello,

Callahan had instructed him to give the ap-

pellant these items and the appellant did not

pay for the ring.

A neighbor who lived near Callahan

testified that between 2:30 and 4:00 p.m., he

heard a knock on his door. When he opened

the door, he saw an individual, who he de-

scribed as being the approximate height and

weight of Robert Gospodareck, a

codefendant in this case, walking down the

stairs. Another neighbor testified that be-

tween 3:00 and 4:00 in the afternoon of Feb-

ruary 7, 1991, she heard a loud "bang". On

that same day, a woman who had occasion-

ally dated Callahan discovered his body in

his apartment. Callahan had been shot once

through the heart.

Jerry Noto, the owner of a local con-

venience store, testified that the appellant

had been in his store on two times on the

day of Callahan's death. The first time the

appellant came into the store, he was dis-

playing the diamond ring. According to

Note, the appellant left the store and re-

turned with Gospodareck. Witnesses testi-

fied that the appellant and Gospodareck

were at the store between 4:30 and 5:00 on

the afternoon of the killing. According to

the witnesses, the appellant talked with

Gospodareck for a short while and then

Gospodareck left the store. Noto testified

that the appellant appeared nervous. Testi-

mony established that Callahan's apartment

was near Noto's store.

During their investigation of

Callahan's death, investigators with the Hoo-

ver Police Department, Detective Peyton

arzour and Sergeant Edward Braden, re-

ceived information that the appellant was

involved in the card game that took place the

night before Callahan's death. The investi-

gators contacted the appellant by telephone

to arrange a meeting with him at the Hoover

Police Department to discuss their investiga-

tion. The Appellant agreed to meet with the

investigators. As the time of the meeting

approached, the investigators were watching

the appellant's home. The investigators saw

the appellant load his vehicle with luggage

and boxes. The appellant then got into his

vehicle and drove toward Fultondale, Ala-

bama, in the opposite direction of the Hoo-

ver Police Department. The investigators

suspected that the appellant was attempting

to leave town without meeting with them

and they asked Gardendale police officers to

stop the appellant's vehicle. Once they

stopped the vehicle, the Gardendale police

called the investigators to the scene. The

Mata Nata a i Da A a ned

appellant assured them that he still planned

to meet with them as he had cold them ear-

lier he would.

Zarzour, without entering the vehi-

cle, saw a .45 caliber handgun inside the

appellant's vehicle. The appellant told the

investigator that Callahan had given him the

gun. The appellant then told the-investiga-

tors that he had a letter that would explain

everything. The appellant permitted the

investigators to enter his car and get the let-

ter. The letter was handwritten and stated:

"I, Jerry W. Callahan, being

of sound mind and body, do

state that it is my wish that if

certain parties are arrested for

causing my death I do not

wish for their prosecution.

This party has enabled me to

leave this life with some form

of dignity and self respect.

My deteriorating condition

and the nonexisting chance of

any survival have lead me to

call on my friend for the ulti-

mate act of friendship. Dr.

Charles Clark of St. Vincent

and Dr. Zeiger of Carraway

can and will attest to my poor

chance of any kind of decent

existence in my last weeks. |

did not want my family to

live with the stigma that I

took my own life coupled

with the fact they didn't know

of my condition. Please

know that this act was done

in the manner that I chose,

which would cause myself

and the above mentioned

party the least amount of suf-

fering."

The note was signed by Callahan. At

trial, a handwriting analyst testified that in

his opinion the note was written by

Callahan.

The appellant was then read his

Miranda rights, was placed under arrest, and

was taken to the Hoover police station. The

appellant was again read his Miranda rights

before any statements were taken. The ap-

pellant indicated that he understood his

rights, and he signed a waiver of rights form

and a consent to search form. The appel-

lant's statement was videotaped. After the

appellant made his videotaped statement, he

made a written statement. In his statements,

the appellant explained his participation in

the offense arid implicated Gospodareck in

the shooting of Callahan.

A forensics expert testified that an

autopsy on Callahan did not reveal any life

threatening illness that would, in the near

net ee yet Oe ee ae

| hihi ATOR win ED PE, ELIE ST RO OR Sedans iiratbslviei eines Raids tail abodes e Reco ushbyiabe is

a Veil Na re ato ahve

future, cause Callahan's death. Also, the

testimony reflected that the doctors named

in Callahan's note had not treated Callahan

for any life threatening illness.

Brown, 630 So. 2d at 482-83.

IV. THE ANTITERRORISM AND EFFECTIVE

DEATH PENALTY ACT

A. The Applicable Standard of Review -

Generally

The petitioner filed his petition after the enactment

of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). Therefore, the provisions of AEDPA are

applicable to his claims. Lindh v. Murphy, 531 U.S. 320,

117 S. Ct., 2059, 138 L. Ed. 3d 481 (1997). AEDPA

amends 28 U.S.C. § 2254(d) by establishing a more defer-

ential standard for reviewing state court adjudications.

Fugate v. Turpin, 8 F. Supp. 2d 1383 (M.D. Ga. 1998) .

The amendments to subsection (d) provide:

(d) An application for a wnt of ha-

beas corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not he granted with respect to any

claim that was adjudicated on the merits in

State court proceedings unless the adjudica-

tion of the claam—

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined by

the Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in light

of the evidence presented in the State court proceed-

ing.

The act prohibits "federal courts from granting habeas relief

for claims previously adjudicated by state courts, unless the

state court adjudication was contrary to or represented an

unreasonable application of 'clearly established’ federal law

at the relevant time as determined by the Supreme Court of

the United States" 01 was an unreasonable determination of

the facts in view of the evidence presented in the State

court. Neelley v. Nagle, 138 F.3d 917, 922 (11" Cir. 1998),

cert. denied, _U.S. _, 1999 WL 8147 (Jan. 11, 1999).

In Neelley, the Eleventh Circuit examined the new,

more deferential standard laid out in subdivision § 2254

(d), and concluded:

[A] court evaluating a habeas petition under

§ 2254 (d) (1) must engage in a three-step

process: First, the court must "survey the

legal landscape," . . . , to ascertain the fed-

eral law applicable to the petitioner's claim

that is "clearly established" by the Supreme

Court at the time of the state court's adjudi-

cation. Second, the court must determine

whether the state court adjudication was

contrary to the clearly established Supreme

Court case law, either because the state court

failed to apply the proper Supreme Court

ee Ree ee ee Pe ee eco “

precedent, or because the state court reached

a different conclusion based on substantially

similar facts. If the state court's decision is

not contrary to law. the reviewing court

must then determine whether the state court

unreasonably applied the relevant Supreme

Court authority. The state court decision

must stand unless it is not debatable among

reasonable jurists that the result of which the

petitioner complains is incorrect.

Fugate, 8 F. Supp. 2d at 1386, citing Neelley, 128 F.3d at

924-25. :

1. The "Contrary To" Provision

After determining the "clearly established" law, the

reviewing court must evaluate whether the claim presented

is solely a question of law, a mixed question of law and.

fact, or solely a question of fact. Bowles v. Barge, 999 F.

Supp. 1247, 1254 (E.D. Wis. 1998). The "contrary to"

clause of subsection (d) (1) applies solely to questions of

law. In Neelley, the court stated:

[w]e can readily think of two situations in

which a state court decision would be "con-

trary to" clearly established Supreme Court

case law. The first is when a state court

faces a set of facts that is essentially the

same as those the Supreme Court has faced

earlier, but given these facts the state court

reaches a different legal conclusion than that

of the Supreme Court. A second situation is

one in which a state court, in contravention

of Supreme Court case law, fails to apply the

correct legal principles to decide a case.

Such a result would be "contrary" in the

sense that the state court has not adjudicated

the claim in the manner prescribed by the

Supreme Court.

Neelley, 338 F.3d at 923. The contrary to "provision"

requires the federal courts 'to give state courts' opinions a

respectful reading, and to listen carefully to their conclu-

sions, hut when the state court addresses a legal question, it :

is the law as determined by the Supreme Court of the é

United States that prevails. Bowles, 999 F. Supp. 1254. ‘

2. The "Unreasonable Application"

Clause

"By its very language, [the second clause of subsec-

tion (d)(i),] 'unreasonable application,' refers to mixed .

questions of law and fact when a state court has 'unreason-

ably' applied clear Supreme Court precedent to the facts of

a given case." Neelley, 138 F.3d at 924. "Mixed constitu- -

tional questions of law and fact are those decisions 'which

require the application of a legal standard to the historical-

fact determinations." Bowles, 999 F. Supp. at 1255, citing

Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L.

Ed. 2d 383 (1995). It is not enough that the reviewing

court disagrees with the state court decision. Relief may he

granted "only if a state court decision is so clearly incorrect

that it would not he debatable among reasonable jurists."

Neelley, 138 F.3d at 924, citing Drinkard v. Johnson, 97

F.3d 751, 769 (Sth Cir. 1996), cert. denied, U.S. ,117

S. Ct. 1114, 137 L. Ed. 2d 315 (1997), superseded on other

grounds by statute, as stated in Shute v. Texas, 117 F. 3d

ky Soe. = AEE MP Bh INL Mit ile TREMORS RL TRE HA

tare

Shgsibt ta amupllcn sh kpeece secs

STEN penne bie

ys pe can pcan an ip SR see Tea

233 (5 Cir. 1997). See also Hennon v. Cooper, 109 F.3d

330, 335 (7" Cir.) (In determining whether a state court's

application of Supreme Court case law was reasonable, a

federal court must assess whether the determination was

minimally consistent with the facts and circumstances of

the case), cert. denied, U.S. _, 1188S. Ct. 72, 139 L. Ed.

2d 32 (1997).

3. Factual Determinations

Factual determinations made by the state court are

presumed to be correct unless the petitioner rebuts the

asssumption by clear and convincing evidence. Specifi-

cally, AEDPA provides:

(e)(1) In a proceeding instituted by

an application for a writ of habeas corpus by

a person in custody pursuant to the judgment

of a State court, a determination of a factual

issue made by a State court shall be pre-

sumed to be correct. The applicant shall

have the burden of rebutting the presump-

tion of correctness by clear and convincing

evidence.

(2) If the applicant has failed to de-

velop the factual basis of a claim in State

court proceedings, the court shall not hold

an evidentiary hearing on the claim unless

the applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional

law, made retroactive to cases on

collateral review by the Supreme

Court, that was previously unavail-

able; or

(ii) a factual predicate that could

not have been previously discov-

ered through the exercise of due

diligence; and

(B) the facts underlying the

claim would be sufficient to establish

by clear and convincing evidence

that but for constitutional error, no

reasonable fact-finder would have

found the applicant guilty of the un-

derlying offense.

28 U.S.C. § 2254(e).

B. Summary

Pats eer de dahed 1 Pers ee

In sum, the standards governing this court's review

of petitioner's claims include:

First, under subdivision (a), factual determi-

nations made by a state court are presumed

correct, and that presumption can only be

overcome by the petitioner presenting clear

and convincing evidence that the factual

determination was erroneous. Second, under

subdivision (d), any claim decided on the

merits in a state court proceeding cannot

SARL, WE ONY eee RA RN Ann ne wai eh gt

A rte. wm av

> ui tila aaa

OO a Ns eee ee ee

en eae

Ree Ome

form the basis for federal habeas relief un-

less the state court ruling fails the analysis

laid out in Neelley.

Fugate, 8 F. Supp. 2d at 1386.

v. APPLICATION OF THE PRESUMPTION

OF CORRECTNESS OF FACTUAL

DETERMINATIONS

The first matter that must be considered in review-

ing petitioner's contentions 1s the applicability and extent of

the presumption created by § 2254 (e) (1). Prior to the

passage of the new subsection (e), the former subsection (d)

enumerated the presumption of correctness to he applied to

state court factual determinations in federal habeas corpus

proceedings.* In Miller v. Fenton, 474 U.S. 104, 105 S. Ct.

* The former subsection (d) provided:

(d) In any proceeding instituted in a Federal court by an

application for a wnt of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination after a hearing on the ments

of a factual issue, made by a State court of competent jursdiction in a

proceeding to which the applicant for the wnt and die State or an officer

or agent thereof were parties, evidenced by a written reliable, written

opinion, or other reliable and adequate written indicia, shall be presumed

to be correct, unless the applicant shall establish or it shall otherwise

appear, or the respondent shal! admuts.

(1) that the ments of the factual dispute were not resolved in the

State court hearing;

(2) that the fact-finding procedure employed by the State court

was not adequate to afford a full and fair hearing,

(3) that the material facts were not adequately developed at the

State court hearing;

(4) that the State court lacked junsdiction of the subject matter

(contunued...)

445, 88 L. Ed. 2d 405 (1985), the Supreme Court consid-

ered the applicability of the presumption created by the

former subsection (d) in a matter involving the voluntari-

ness of a confession. The Court stated that uthe ultimate

question whether, under the totality of the circumstances,

the challenged confession was obtained in a manner com-

patible with the reccuirernents of the Constitution is a

matter for independent federal determination" in a habeas

corpus proceeding under § 2254. Miller, 474 U.S. at 112.

However, the Court stated:

Siinieeed Oe ico RS seek eae A OO, <M ae Sade Ol Se Seaslakeoe she oe

* (...continued)

or over the person of the applicant in the State court proceeding;

(5) that the applicant was an in and the State court, in depriva-

tion of his constitutional right, failed to appoint counsel to

represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate

hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in

the State court proceeding;

(8) or unless that part of the record of the State court proceeding

in which the determination of such factual issue was made,

pertinent to a determination of the sufficiency of the evidence to

support such factual determination, is produced as provided for

hereinafter, and the Federal court on a consideration of such part

of the record as a whole concludes that such factual determina-

tion is not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal court,

when due proof of such factual determination has been made, unless the

existence of one or more of the circumstances respectively set forth in

paragraphs numbered (1) to (7), inclusive, is shown by the applicant,

otherwise appears, or is admitted by the respondent or unless the court

Mire hee ae r ae i

Bt te BS i Oat sheen Ne ioe ole Stier

DANG Babe ik bol nd cae Aes Red bd Wala d

concludes pursuant to the provisions of paragraph numbered (8) that the F

record in the State court proceeding, considered as a whole, does not

fairly support such factual determination, the burden shall rest upon the

applicant to establish by convincing evidence that the factual determina-

tion by the State court was erroneous.

pach my stininbenseencnseG"”

TiS hat A AL a Achaea Ne tO Hoa

tii hte H

’

li A Lh dS Ma. aa Nit te hile CL nt WG Alls Sete: Bahn Faw hI tb

pn GTI Tits OE

[SJubsidiary questions, such as the length

and circumstances of the interrogation, the

defendant's prior experience with the legal

process, and familiarity with the Miranda

warnings, often require the resolution of

conflicting testimony of police and defen-

dant. The law is therefore clear that state-

court findings on such matters are conclu-

sive on the habeas court if fairly supported

in the record and if the other circumstances

enumerated in § 2254(d) are inapplicable.

Miller, 474 U.S. at 117.

This court believes that AEDPA does not require a

different conclusion. However, in this case, the petitioner

does not contest the historical facts surrounding the interro-

gation. See Doct. 18, p. 3.° The determination of the sub-

stantive issues concerning the petitioner's statements will

be reviewed as legal questions, menting independent,

consideration under the new standards in § 2254 (d).

* Counsel challenges the state court's application of the law to the facts.

The court does note that in the petitioner's response (Doct. 18, p. 1),

counsel asserts that this court ought to hold an evidentiary hearing to

determine all the factual issues; however, a fair reading of all the

Petiaoner's submissions shows he is contesting the state court's legal

determinations. To the extent the petitioner is challenging the historical

facts in this matter, the court specifically finds that the petitioner has not

shown by "clear and convincing” evidence that the facts as reported by the

Alabama Court of Criminal Appeals are not correct, 28 USC. §

2254(c)(1).

VI. APPLICATION OF THE CONTROLLING

STANDARDS AND DETERMINING

THE ADMISSIBILITY OF THE

PETITIONER'S CONFESSION

A. The Petitioner's Claims

The Due Process Clause of the Fourteenth Amend-

ment provides that no State shall "deprive any person of

life, liberty or property, without due process of law." U.S.

Const. Amend. XIV. The due process protections include

"the Fifth Amendment privilege against compulsory self-

incrimination."- Colorado v. Connelly, 479 U.S. 157, 107

S. Ct. 515, 92 L. Ed. 2d 473 (1986) . The petitioner simi-

larly is protected by the Sixth Amendment provision requir-

ing the assistance of counsel. The petitioner alleges that his

confession was improperly admitted as it was (1) unlaw-

fully obtained after he invoked his nght to counsel and (2)

after he was promised beneficial treatment if he made a

statement. (Doct. 1, pp. 7-16)

B. The "Clearly Established Federal Law"

The first step in the present inquiry is to delineate

the applicable "clearly established federal law as deter-

mined by the Supreme Court." Neelley, 138 F.3d at 925.

The case that governs petitioner's first claim, concerning his

purported invocation of his night cc counsel, is Davis v.

United States, 512 U.S. 452, 1148S. Ct. 2350, 129 L. Ed. 2d

362 (1994).

Concerning the second claim, that his statements

were prompted by unlawful inducements and actions, and

therefore involuntary (doct. 1, p. 16) , the clearly estab-

lished Supreme Court precedent requires an inquiry into

whether, under the totality of the circumstances, the confes-

sion was voluntarily obtained by the police or whether it

was improperly obtained through the use of any direct or

implied promises or the exertion of any improper influence

that rendered it involuntary. Arizona v. Fulminante, 499

U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Bram

v. United States, 168 U.S. 532, 543, 18 S. Ct. 183, 42 L. Ed.

26 568 (1897). See also Hutto v. Ross, 429 U.S. 28, 30, 97

S. Ct. 202, 50 L. Ed. 2d 194 (1976); Brady v. United States,

397 U.S. 742, 753, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970);

Malloy v. Hogan, 378 U.S. 1, 7, 84S. Ct. 1489, 12 L. Ed.

2d 653 (1964); Haynes v. Washington, 273 U.S. 503, 513-

14, 83 S. Ct. 1236, 10 L. Ed. 2d $12 (1963).

To be admissible, the confession must be freely and

voluntarily made. Bram, 168 U.S. at 542. Law enforce-

ment officials may not obtain a confession by overbearing

an individual's freewill. Moran v. Burbine, 475 U.S. 412,

421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Mincey v.

Arizona, 437 U.S. 385, 399, 98 S. Ct. 2408, 57 L. Ed. 2d

290 (1978); Haynes, 273 U.S. at 513-14; Townsend v. Sain,

372 U.S. 293, 307, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963),

overruled on other grounds by Keeney v. Tamayo-Reyes,

504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 238 (1992);

Culombe v. Connecticut, 367 U.S. 568, 601-02, 81 S. Ct.

1860, 6 L. Ed. 2d 1037 (1961). The factors to be consid-

ered include the conduct of law enforcement officials in

creating pressure and the individual's capacity to resist that

pressure. Colorado v. Connelly, 419 U.S. 157, 170-71, 107

S. Ct. 515, 93 L. Ed. 2d 473 (1986); Fare v. Michael C.,

442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979) ;

Nincey, 437 U.S. at 399-401; Davis v. North Carolina, 284

U.S. 737, 752, 86 S. Ct. 1751, 16 L. Ed. 2d 895 (1966).

"No single fact is dispositive." Brown v. Illinois, 422 U.S.

590, 603, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). Al-

though the Alabama Court of Criminal Appeals did not cite

the foregoing authonities in its opinion, the court applied

the appropriate criteria.°

° Citing an Alabama case, the court stated:

"Extrajudicial confessions are prima facie involuntary and

inadmissible as evidence; the burden is on the state to show

voluntariness and a Miranda predicate in order for such confes-

sions to be admitted into evidence, Lewis v. State, 535 So. 2d

228 (Ala. 1988). In order for a confession to he admitted into

evidence it cannot be the result of any direct or umplied, however

slight. Goodson v. State, 540 So 2d 789 (Ala. Cr: App.), cert

denied, 540 So. 2d 789 (Ala. 1989). Whether there was a

voluntary and knowing waiver of Miranda nghts under be

decided from the particular facts and circumstances case,

including the background, experience, and conduct of the

accused--the totality of the circumstances. Lewis v State; 535

So. 2d 228; Magwood v. State, 494 So. 2d 124 (Ma. Cr. App.

19S5), aff'd. 494 So. 2d 154 (Ala.), cert. denied, 479 U.S. 955,

1995, [107 S. Ct. 599, 93 L Ed. 2d 599] (1986).

“The true test of voluntariness of extra-judicial

confessions is whether, under all surrounding circumstances,

they have been induced by a threat or a promise, express or

implied, operating to produce in the mind of the prisoner

apprehension of harm or hope of favor; such confessions must

be excluded from the consideration of the duty as having been

secured by undue influence."

"Ex parte Weeks, 531 So. 2d 643, 644 (Ala. 1988),

quoting Womack v. State, 281 Ala. 499, 205 So. 2d 579 (1967).

The question of whether a confession is voluntary is initially to

(continued...)

‘

i "Contrary To" or an "Unreasonable Ap-

plication"

Next, this court mast decide whether the state court

determination was contrary to or an unreasonable applica-

tion of federal law. In order to accomplish this, the court

must examine the facts in light, of the clearly established

federal law.

1. Right to Counsel

The Supreme Court in Edwards vy. Arizona, 451

U.S. 477, 68 L. Ed. 2d 278, 101 S. Ct. 1880 (1981), "held

that law enforcement officers must immediately cease

questioning a suspect who has clearly asserted his right to

have counsel present during custodial interrogation." Da-

vis, 129 L. Ed. 2d at 368. When the petitioner's case was

presented to the Alabama Court of Criminal Appeals, the

court, relying on Edwards, held:

In this case, the appellant's request to

speak to a fnend who 1s also an attorney was

clearly an invocation of his night to counsel.

® (...continued)

be determined by the trial court, and thereafter the voluntariness

as affecting the credibility and weight to be given any statement

that an accused has made is a determination for the jury. Lewis

v. State; Ex parte Singleton 465 So. 2d 443 (Ala. 1985). The

trial court need only he convinced from a preponderance of the

evidence to find a confession to have been voluntarily made. Ex

parte McCary, 528 So. 2d 1133 (Ala. 1988); Ex parte Single-

ton.”

Brown, 668 So.2d at 104.

Further interrogation by the investigators

without providing the appellant the opportu-

nity to confer with an attorney violated the

appellant's Fifth Amendment nghts as dis-

cussed in Miranda and Edwards.

Contrary to the State's argument, we

hold that at the very least the appellant's

comment was an equivocal request to speak

to counsel. Additionally, we conclude that

the investigators did not clanfy the appel-

lant's request to confer with counsel.

Rather, the investigators continued their

interrogation as if the request to speak with

counsel had not been made, telling the ap-

pellant how serious the matter wasp prod-

ding him to provide more information, and

ignoring the requirement that their inquiries

after the appellant's request was made be

specifically limited to clarifying that request.

Thus, regardless whether the appellant's re-

quest to speak to_his friend who is an attor-

ney is considered a clear request or is con-

sidefed an equivocal request, the investiga-

tors' failure to respond to or to clarify that

request nonetheless violated the appellant's

Fifth Amendment rights.

Because the appellant's statements

were obtained in violation of his Fifth

Amendment nights, the statements obtained

after his invocation of his right to confer

with counsel were due to be suppressed.

Brown, 630 So.2d at 454. Following the Court of Cnminal

Appeals' decision, the United States Supreme Court de-

cided Davis. The Davis Court refused to extend Edwards’

requirement that. questioning cease to situations where

there is an ambiguous or equivocal reference to an attorney.

Id. at 460. The Court stated:

The applicability of the "'rigid’ pro-

phylactic rule” of Edwards requires courts to

"determine whether the accused actually

invoked his night to counsel." Smith v. IIli-

nois, supra, 469 U.S. at 95, 105 S. Ct. at 492

(emphasis added), quoting Fare v. Michael

C., 442 U.S. 707, 719, 99 S. Ct. 2560, 2565,

61 L. Ed. 26 197 (1979). To avoid difficul-

ties of proof and to provide guidance to offi-

cers conducting interrogations, this is an

objective inquiry. See Connecticut v.

Barrett, supra, 479 U.S. at 529, 107 S. Ct. at

832. Invocation of the Miranda right to

counsel "requires, at a minimum, some state-

ment that can reasonably be construed to be

an expression of a desire for the assistance

of an attorney." McNeil v. Wisconsin, 501

U.S. at 178, 111 S. Ct. at 2209. But if a sus-

pect makes a reference to an attorney that is

ambiguous or equivocal in that a reasonable

officer in light of the circumstances would

have understood only that the suspect might

be invoking the nght to counsel, our prece-

dents do not require the cessation of ques-

tioning. See ibid. ("[T]he likelihood that a

suspect would wish counsel to be present is

not the test for applicability of Edwards");

Edwards v. Arizona, supra, 451 U.S. at: 485,

101 S. Ct. at 1855 (impermissible for au-

thorities "to reinterrogate an accused in cus-

tody if he has clearly asserted his right to

counsel") (emphasis added)

Rather, the suspect must unambigu-

ously request counsel. As we have ob-

served, "a statement either is such an asser-

tion of the nght to counsel or it is not."

Smith v. Illinois, 469 U.S. at 97-98, 105 S.

Ct. at 494 (brackets and internal quotation

marks omitted). Ifthe statement fails to

meet the requisite level of clarity, Edwards

does not require that the officers stop ques-

tioning the suspect See Moran v. Burbine,

475 U.S. 412, 433 0.4, 106 S. Ct. 1135,

1147 n.4, 89 L. Ed 2d 410 (1986) ("[T]he

interrogation must cease until an attorney is

present only [i}f the individual states that he

wants an attorney") (citations and internal

quotation marks omitted).

We decline petitioner's invitation to

extend Edwards and require law enforce-

ment officers to cease questioning immedi-

ately upon the making of an ambiguous or

equivocal reference to an attorney. See Ari-

zona v. Roberson, supra, 486 U.S. at 588,

108 S. Ct. at 2101-2102 (Kennedy, J., dis-

senting) ("the ruleof Edwards is our rule,

not a constitutional command; and it is our

obligation to justify its expansion")... .

Davis, 512 U.S. at 459-60. On remand, the Alabama Court

of Criminal Appeals reviewed the facts in light of Davis

and held: -

In this case, the appellant asked the

officers "Is it going to piss y'all off if I ask

for my--to talk to a friend that is an attor-

ney? I mean, I'm going to do whatever |

have got todo. Don't yet me wrong." This

is certainly not an unambiguous request for

counsel as required by Davis. Therefore, the

appellant's assertion that his statements to

the police should have been suppressed be-

cause, he says, they were obtained in viola-

tion of Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and

Edwards vy. Arizona, 451 U.S. 477, 101 S.

Ct. 1880, 68 L. Ed. 2d 378 (1981), is with-

out ment.

Brown, 668 So. 2d 104. It is this decision that the court

must review.

The facts before this court establish that Sergeant

Braden of the Hoover Police Department was able to con-

tact the petitioner over the phone to arrange a meeting at

the Hoover Police Department for 4:00 p.m that day.

(Doct. 13, Ex. C., Tr. pp. 24-26). The petitioner told

Braden that he would be there at that time since he had to

pick up his grandmother first. (/d., p. 26). The officers set

up a surveillance. They observed the petitioner at the resi-

dence loading a car with luggage and boxes. (/d., p. 29).

When he left in a direction away from Hoover, the officers

requested local assistance and had the petitioner stopped.’

Officer Braden observed a .45 caliber gun inside the car.

The petitioner stated that Callahan had given the gun to him

and that there was a letter in the car that would explain

everything. (/d., p. 35).

The petitioner was advised of his nights at the loca-

tion where he was stopped and arrested. (/d., p. 39). He

was transported to the Hoover Police Department. He was

again advised of his nghts. After he was read his nghts

again and they were explained to him at about 5:51 p.m., he

acknowledged that he understood them and signed the

waiver form. (/d., pp. 44-45, State's Ex. 4; Doct. 13, Ex. D,

Tr. p. 2). He also executed a consent to search form for his

car about the same time that he was advised of his nghts.

(Doct. 13, Ex. C, pp. 45-46, State's Ex. 4; Doct. 13, Ex. D,

Tr. p. 2). The questioning of the petitioner commenced

immediately thereafter. About one-third of the way

through the interview, when the officers asked him to go

back through the events, the following occurred:

Q (By Sgt. Braden): From the very start.

Q (By Det. Zarzour): From the very start. From the

time he gave you the letter--

4 According to the recorded statement the petitioner provided the police,

when he was stopped by the officers, he told them that he was not

attempting to flee. He stated that he was on his way to his attorney to

provide him with the letter he received from Callahan explaining his

death. He further stated that he and his attorney were planning to meet at

the attorney's office at 3:30 p.m. and were to be at the Hoover Police

Department at 4:00 p.m. (Doct. 13, Ex. D, Tr. P. 70).

A [appellant]: Okay.

Q: Go ahead.

A: Is it going to piss y'all. off if 1 ask for my--to

talk to a friend that is an attorney. | mean, I'm go-

ing to do whatever I have got to do. Don't get me

wrong. ;

Q: Well, I understand that. I understand what you

are saying.

death.

A: You have got to realize, man, I'm... scared to

Q: Well, and nghtfully so. I don't blame you one

bit because there's a serious problem here, but if you

didn't pull the tngger, then we need to know what

exactly happened, okay?

Q (By Sgt. Braden): It's up to you, Greg, whatever

you want to do. Like he said.

A: Listen, I don't know exactly what happened. |

was not there.

Q (By Det. Zarzour): Okay.

Q (By Sgt. Braden): We know you met--we know

you met him over at Pick-a-Pack, we know yi‘all.

left, we know you brought him back. We know all

that. We know where you were, we have got people

that have, seen you, we know. It's like I told you

earlier, we alrcady know.

Q (By Det. Zarzour): That's why I said don't beat

around the bush, let's get to it and get it over with.

A: All nght.

(Doct. 13, Ex. D, Tr. pp. 32-34)

As already noted, the petitioner does not dispute the

facts but assets that the Court of Appeals misapplied the

relevant Supreme Court case law. (Doct. 18, p. 3). This

court can grant the petitioner relief only if it concludes that

"the decision is so clearly incorrect that it would not be

debatable among reasonable junsts." Neelley, 138 F.3d at

924.

Reviewing the entire record, the court agrees with

the assessment of the Court of Cnminal Appeals and inde-

pendently concludes that the petitioner's statement is not

the unambiguous request for counsel required by Davis.

See Brown, 668 So. 2d at 103. This statement is not the

clear articulation of a desire to have counsel present such

"that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney."

Davis, 129 L. Ed. 2d at 371. Because of the lack of clarity,

neither Davis or Edwards required the officers to discon-

tinue the questioning. Although it may have been more

prudent for the officers to follc».-up on the petitioner's

statement, Davis clearly does not require chat.

In support of the argument that a reasonable police

officer in the circumstances should have understood the

statement to be a request for counsel, the petitioner cites to

Detective Zarzour's statement made immediately after his

comment, "Well, I understand that. I understand what you

are saying.” (Doct. 13, Ex. D, p. 33). Giving full consider-

ation to the petitioner's comment, Detective Zarzour's

statement, the dynamics involved in custodial interroga-

tions between the interrogator and the individual being

questioned, and the context, the court 1s convinced that the

standard set forth in Davis has not been satisfied. To the

contrary, the record shows that immediately after the terse,

ambiguous statement by the petitioner, he began to explain

his involvement in the crime. Under these circumstances,

at best, the petitioner's actions may be enough to show he

was considering invoking the nght to counsel. However,

that is not sufficient under Davis and the petitioner clearly

intended to go forward without counsel and make a state-

ment.

In sum, this court concurs in the conclusion of the

Court of Criminal Appeals. Accordingly, absent a showing

that "the decision is so clearly incorrect that it would not be

debatable among reasonable jurists," the petitioner is not

entitled to any relief. Neelley, 138 F.3d at 924.

2. Voluntariness

The petitioner also asserts that the admission of his

statement at trial, was in error since it was the result of

improper promises and suggestions that things would go

better for him if he confessed. (Doct. 1, p. 13). In support —

of this claim, the petitioner cites to various portions of the .

record. The pertinent portions include the following collo-

quy:

Q: Now, what you tell us and what [sic] you

help yourself is up to you, Greg, not us. It's

up to you. If you didn't pull the trigger, you

need to tell us. You need to tell us who did

and we need to hear the whole story and he

done with it and get this thing over with and

clear it up, Greg, because it is putting heat

on everybody and you are going to get some

heat on you, but the degree of heat you're

going to get is up to Greg. It's not up to us--

it's up to Greg. Okay? That's as straightfor-

ward as I can be, bud. I can't be any more

forward. That is what I feel like happened.

I mean truthfully honest, that's what I feel

like happened. I believe he might have been

your fnend and a good friend. You couldn't

do it, but Gospodareck could and he did. Or

something. Okay? It's all over with. I don't

think if I didn't pull the tngger, Greg, I don't

think I would take the heat for it, buddy. To

be truthfully honest with you. [sic] It

means a hell of a lot of difference in the

court's eye who pulled the trigger, okay? I

think it makes a lot of difference.

But if he did, we need to know about it and

we need to straighten it up and clear it up

right now as fast as we can. Because the

longer we wait the tougher it is for every-

body. He's got family that are sitting out

there in limbo, you know, they want to know

what happened. This may ease their pain a

little bit, okay? But we need to find out who

did it and I think I'm about real close to what

happened. Real close to what happened.

Because you met him up at the Pick-a-Pack

nght during the same timespan that he was

killed, okay?

SGT. BRADEN: We've got people who saw

you there. Like I told you earlier, we know.

DET. ZARZOUR: We have got to have--we

have got to have you help yourself here,

Buddy. Not us, you help yourself. And if

you are honest wit.h us and you come

through this stuff--let’s talk about it.

A: I understand what's happening here,

okay?

Q: (By Det. Zarzour) Yeah, I know you do.

We have got to do this, okay?

A: I understand.

Q: Okay. I know it's hard for you. I'm not

going to Say it is an easy task for you to do

this, but what I'm telling you is the quicker

we get this done, the better it is going to be

for you. Okay? You are the one sitting in

here. Gospodareck 15 not sitting in here,

okay? But if I have to guess, Gospodareck

got the money. That was his pay, your pay

was the ring. Maybe a little bit of money.

Q (By Sgt. Braden): All the arrows are

pointing toward Greg nght now.

Q (By Det. Zarzour): And I don't think

that's fair.

Q (By Sgt. Braden): No, that's not.

Q (By Det. Zarzour): I don't think that's fair

at all. And I don't think - personally, I don't

think Jerry would have wanted it that way. I

may be wrong.

A: No, no.

(Doct. 13, Ex. D, Tr. pp. 29-31). Well into the interview

and after the petitioner had made numerous inculpatory

statements, Detective Zarzour stated:

Q And - I want to ask you something else.

So much of the cat is out of the bag. I know

we - we have got a lot of loose ends to tie

up, things we are going to have to do. You

have cooperated and I couldn't ask for any-

thing, you know, and like I said, that's what

I'll do for you - we will go in and do the best

we can do. I'm not a hard ass for people

who cooperate, okay?

A: Okay.

(Doct. 13, Ex. D, Tr. p. 76). After reviewing the record, the

Court of Criminal Appeals held:

The totality of the circumstances surround-

ing the appellant's statement convinces this

court that the officers never offered any

promises or hopes of reward to the appel-

lant. They were simply making it clear to

the appellant that it was not their job to es-

tablish that he was not the triggerman and

that the appellant needed to tell them if he

was not the triggerman. Thus, the appel-

lant's statement was not unlawfully induced

by some promise or hope of reward.

Brown, 668 So. 2d at 104. After an independent review of

the record, the court again agrees with the conclusion of the

Court of Criminal Appeals that the petitioner's statement

was not unlawfully induced.

The petitioner was advised of his Miranda rights

twice and executed a written waiver. The entire interview

process which resulted in the recorded oral statement, and

ultimately a written statement, concluded within about two

hours, at approximately 7:30 p.m. There was no evidence

of coercion or other improper actions by the police officers.

When the totality of the circumstances are examined

and the officers' comments prior to the making of the con-

fession are placed in context, they do not constitute prom-

ises of a reward or benefit that induced the petitioner to

confess. His confession was clearly a consequence of his

free will. The officers’ statements that it was up to the

petitioner to tell them what happened - to tell the truth - did

not overcome his free choice. Their exhortations to get him

to tell the truth do not make the confession involuntary.

See Crooker v. California, 357 U.S. 423, 437, 78 S. Ct.

1287, 2 L. Ed. 2d 1445 (1958).

The comment by Detective Zarzour after the peti-

tioner had substantially cooperated is merely a statement

that he would not be hard on the petitioner and that he

would make has cooperation known. It does not vitiate the

voluntariness of the confession. See United States v.

Ballard, 586 F.2d 1060, 1062 (5" Cir. 1978) (A statement

that the accused's cooperation will be made known to the

court is not sufficient inducement so as to render the state-

ment involuntary), citing United States v.-Frazier, 434 F.2d

994 (5" Cir. 1970). Additionally, that statement was made

after the petitioner had substantially admitted his participa-

tion in Callahan's death.

Vil. RECOMMENDATION AND NOTICE OF

RIGHT TO OBJECT

In accord with the foregoing, the magistrate judge

recommends that the petition for a writ of habeas corpus be

DISMISSED.

Any party may file specific written objections to

this report within fifteen (15) days of the date it is filed in

the office of the Clerk. Any objections filed must specifi-

cally identify the findings in the magistrate judge's recom-

mendation to which the objections pertain. Frivolous,

conclusive, or general objections will not be considered by

the district court. Failure to file written objections to the

proposed findings and recommendations of the magistrate

judge's report shall bar the party from a de novo determina-

tion by the district court of issues covered in the report and

shall bar the party from attacking on appeal factual findings

in the report accepted or adopted by the district court except

upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5 Cir. 1982). It is not neces-

sary for the petitioner to repeat his legal arguments. As

to the facts, if the petitioner does respond, he should

limit himself to addressing the statements of fact con-

tained in the report and recommendation to which he

objects; the objections are not the place to make new

allegations or present additional evidence. A copy of the

objections must be served upon all other parties to the

action.

The Clerk is DIRECTED to serve a copy of this

Report and Recommendation upon the counsel for the

petitioner and the respondent.

DONE this the 24" day of February, 1999.

JOHN E. OTT

UNITED STATES MAGISTRATE JUDGE

Ex parte Gregory Allan Brown (Re: Gregory Allan

Brown v. State)

1941276

SUPREME COURT OF ALABAMA

668 So. 2d 105; 1995 Ala. LEXIS 379

September 15, 1995, RELEASED

SUBSEQUENT HISTORY: Released For Publication

February 17, 1996.

PRIOR HISTORY: PETITION FOR WRIT OF CERTIO-

RARI TO THE COURT OF CRIMINAL APPEALS. (Jeffer-

son Circuit Court, CC-91-2136, Court of Criminal Appeals,

CR-91-215). Michael W. McCormick, TRIAL JUDGE.

DISPOSITION: WRIT DENIED.

COUNSEL: For Petitioner: J. Louis Wilkinson of Wilkinson

and Vinson, Birmingham.

For Respondent: Jeff Sessions, atty. gen.

JUDGES: COOK, Hornsby, C. J., and Almon, Ingram, and

Butts, JJ., concur. Maddox, J., dissents.

OPINIONBY: COOK

OPINION: COOK, JUSTICE.

WRIT DENIED.

Hornsby, C. J., and Almon, Ingram, and Butts, JJ., concur.

Maddox, J., dissents.

Ex parte Gregory Allan Brown

DISSENTBY: MADDOX

DISSENT: MADDOX, JUSTICE (dissenting).

I would grant the wmit to review the petitioner's claim

that his capital murder conviction should be overturned on the

basis that the interrogating officers refused to cease question-

ing him after he requested counsel.

The Court of Criminal Appeals reversed Gregory

Allan Brown's conviction, stating that the interrogation

should have ceased when Brown made what it considered to

be his "request" for counsel. Brown v. State, 630 So. 2d 481

(Ala. Cr. App. 1995). This Court denied the State's petition

for the wnt of certiorari, in which the State asked this Court

to reverse the judgment of the Court of Criminal Appeals.

The State appealed to the Supreme Court of the United States,

and that Court remanded the case to the Court of Criminal

Appeals for a reconsideration in light of the Supreme Court's

ruling in Davis v. United States, __ U.S. _, 1148. Ct. 2350,

129 L. Ed. 2d 362 (1994). Upon remand, the Court of

Criminal Appeals, with Judge Taylor dissenting, determined

that Brown's request for counsel was "certainly not an

unambiguous request for counsel as required by Davis." 1995

Ala. Crim. App. LEXIS 74, *4, 668 So. 2d at__ (Ala. Crim.

App. 1995).!

' During his interrogation, Brown asked if it would make the officers

(continued...)

I would at least grant the writ to review the petitioner's

claim that his request for counsel was "at a minimum, [a]

statement that [could] reasonably [have been] construed to be

an expression of a desire for the assistance of an attorney."

Davis, _ U.S. at_, 1148S. Ct. at 2355, 129 L. Ed. 2d at_. It

appears to me that in Davis the interrogating officers asked

the defendant if he was requesting an attorney, after he had

made an ambiguous statement about possibly wanting to have

counsel present, and that the defendant responded by saying

that he was not requesting counsel. On this point, the Court

stated:

Of course, when a suspect makes an ambigu-

ous or equivocal statement it will often be

good police practice for the interviewing

officers to clarify whether or not [the suspect]

actually wants an attorney. That was the

procedure followed by the [Naval Investiga-

tion Service] agents in this case. Clarifying

questions help protect the rights of the suspect

by ensuring that he gets an attorney if he

wants one, and will minimize the chance of a

confession being suppressed due to subse-

quent judicial second-guessing as to the mean-

ing of the suspect's statements regarding

counsel. But we decline to adopt a rule re-

quiring officers to ask clarifying questions. If

the suspect's statement is not an unambiguous

or unequivocal request for counsel, the offi-

; (...continued)

angry "if I ask for my -- to talk to a friend that is an attorney? I mean, I'm

going to do whatever I have got to do. Don't get me wrong."

cers have no obligation to stop questioning

him.

Davis, __ U.S. at_, 1148S. Ct. at 2356, 129 L. Ed. 2d at _. In

view of this statement by the Supreme Court of the United

States in Davis, | do not believe that that Court, by remanding

this case for consideration in light of what it had said in

Davis, determined that the Brown's request was "ambiguous"

or "equivocal."

It appears to me that the facts of this case could be

distinguished from those of the Davis case. The record shows

that the interrogating officers made no attempt to clarify

whether Brown was asking for counsel. After Brown made

the statement quoted in footnote one, the interrogators

responded:

"Officer: Well, I understand that. I understand

what you are saying.

"Defendant: You have got to realize, man, that

I'm f scared to death.

"Officer: Well, and rightfully so. I don't

blame you one bit because there is a serious

problem here, but if you didn't pull the trigger,

then we need to know exactly what happened,

okay?"

It seems from this colloquy that the interrogating

officers were aware that the statement by the defendant could

"reasonably [have been] construed to be an expression of a

desire for the assistance of an attorney." Davis. In fact, the

substance of the colloquy could be construed as showing that

the interrogators were suggesting to the petitioner that if he

was not guilty, then there would be no need for counsel.

Was Brown's "reference to an attorney ... ambiguous

or equivocal in that a reasonable officer in light of the

circumstances" would have understood only that Brown

might be invoking his nght to counsel? Davis, __ U.S. at _,

114 S. Ct. at 2355, 129 L. Ed. 2d at ___. Based on all the

circumstances in this case, I would grant the petition and

review Brown's claim; that claim presents an important

constitutional question. Also, Brown's petition argues that his

confession was not voluntarily given; I think this Court

should also review that claim.

I make one further observation about the Davis case.

Although all the Justices of the Supreme Court concurred in

the result of the opinion in the Davis case, four Justices

concurred only because the interrogators had stopped ques-

tioning after the defendant made his ambiguous request, in

order to determine if the defendant was, in fact, requesting

counsel. The interrogators did this clearly and resumed their

questioning only after the defendant told them that he was not

requesting counsel at that time. These four Justices (Justices

Stevens, Blackmun, Souter, and Ginsberg) concurred for this

reason and stated that they felt that a rule should be adopted

requiring officers to inquire whether the defendant was asking

for counsel. Justice Scalia also filed a concurring opinion, but

stated that he had reservations about the Court's analysis of

the legal issue.

Based on the foregoing, I am not convinced that Davis

required the Court of Criminal Appeals on the remand to

reach a result different from the result of its initial review.

Gregory Allan Brown v. State

CR-91-0215

COURT OF CRIMINAL APPEALS OF ALABAMA

668 So. 2d 102; 1995 Ala. Crim. App. LEXIS 74

March 3, 1995, RELEASED

SUBSEQUENT HISTORY:

Rehearing Denied May 5, 1995. Certiorari Denied September

15, 1995. Released For Publication February 17, 1996.

PRIOR HISTORY:

Appeal from Jefferson Circuit Court. (CC-91-2136). Michael

McCormick, TRIAL JUDGE.

DISPOSITION:

AFFIRMED.

COUNSEL:

For Appellant: Louis Wilkinson, Birmingham.

For Appellee: James H. Evans, atty. gen., and Beth Poe, asst.

atty. gen.

JUDGES:

COBB, JUDGE. All the Judges concur except Taylor, P.J.,

who dissents with opinion.

OPINIONBY:

COBB

OPINION:

ON REMAND FROM THE UNITED STATES SUPREME

COURT

COBB, JUDGE

This case was originally assigned to another judge on

the Court of Criminal Appeals. It was reassigned to Judge

Cobb on January 17, 1995.

On August 13, 1993, this court reversed this appel-

lant's conviction and held that “regardless whether the

appellant's request to speak to his friend, who is an attorney,

is considered a clear request or is considered an equivocal

request, the investigators’ failure to respond to or to clarify

that request nonetheless violated the appellant's Fifth Amend-

ment rights." See Brown v. State, 630 So. 2d 481, 484 (Ala.

Crim. App. 1993). The Alabama Supreme Court denied

certiorari review on December 17, 1993. On October 3, 1994,

the United States Supreme Court remanded this cause to this

court for further consideration in light of Davis v. United

States, 512 U.S. __, 129 L. Ed. 2d 362, 114 S. Ct. 2350

(1994). The facts of this case were recited in our original

opinion in Brown.

In Davis, 512 U.S. at __, 114S. Ct. at 2355, 129 L. Ed.

362 at__ the United States Supreme Court stated:

"The applicability of the "rigid" prophylactic

rule’ of Edwards [v. Arizona, 451 U.S. 477,

101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)]

requires courts to ‘determine whether the

accused actually invoked his nght to counsel.’

Smith v. Illinois, 469 U.S. [91], at 95, 105 S.

Ct. [490], at 492 [83 L. Ed. 2d 488 (1980)]

(emphasis added [in Davis]), quoting Fare v.

Michael C., 442 U.S. 707, 719, 99 S. Ct.

2560, 2569, 61 L. Ed. 2d 197 (1979). To

avoid difficulties of proof and to provide

guidance to officers conducting interrogations,

this is an objective inquiry. See Connecticut

v. Barrett, 479 U.S. [523] at 529, 107 S. Ct.

[828] at 832 [93 L. Ed. 2d 920 (1987)] Invo-

cation of the Miranda right to counsel 're-

quires, at a minimum, some statement that can

reasonably be construed to be an expression of

a desire for the assistance of an attorney.’

McNeil v. Wisconsin, 501 U.S. [171] at 178,

111 S. Ct. [2204], at 2209 [115 L. Ed. 2d 158

(1991)}. But ifa suspect makes a reference to

an attorney that is ambiguous or equivocal in

that a reasonable officer in light of circum-

stances would have understood only that the

suspect might be invoking the right to coun-

sel, our precedents do not require the cessation

of questioning. See ibid. (‘the likelihood that a

suspect would wish counsel to be present is

not the test for applicability of Edwards;);

Edwards v. Arizona, supra, 451 U.S. at 485,

101 S. Ct. at 1885 (impermissible for authori-

ties ‘to reinterrogate an accused in custody if

he has clearly asserted his right to counsel’)

(emphasis added in Davis).

Rather, the suspect must unambiguously

request counsel. As we have observed, ‘a

statement either is such an assertion of the

right to counsel or it is not.’ Smith v. Illinois,

469 U.S. at 97-98, 105 S. Ct. at 494 (brackets

and internal quotation marks omitted). Al-

though a suspect need not ‘speak with the

discrimination of an Oxford don, 114 S. Ct. at

2364 (SOUTER, J., concurring in judgment),

he must articulate his desire to have counsel

present sufficiently clearly that a reasonable

police officer in the circumstances would

understand the statement to be a request for an

attorney. If the statement fails to meet the

requisite level of clarity, Edwards does not

require that the officers stop questioning the

suspect. See Moran v. Burbine, 475 U.S. 412,

433, n. 4, 106 S. Ct. 1135, 1147, n. 4, 89 L.

Ed. 2d 410 (1986) (‘the interrogation must

cease until an attorney is present only if the

individual states that he wants an attorney’)

(citations and internal quotation marks omit-

ted).

In this case, the appellant asked the officers "Is it

going to piss y'all off if 1 ask for my -- to talk to a friend that

is an attorney? I mean, I'm going to do whatever I have got

to do. Don't get me wrong.” This is certainly not an unam-

biguous request for counsel as required by Davis. Therefore,

the appellant's assertion that his statements to the police

should have been suppressed because, he says, they were

obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Edwards v. Ari-

zona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981),

is without merit.

The appellant contends the tral court erred by

admitting his statement into evidence because, he says, his

statement was obtained after "promises of beneficial treat-

ment" were made to him by the police. The following portion

of the record is relevant to a determination of this issue:

Now, what you tell us and [whether] you help

yourself is up to you, Greg, not us. If you

didn't pull the trigger, you need to tell us. You

need to tell us who did and we need to hear

the whole story and be done with it and get

this thing over with and clear it up, Greg,

because it is putting heat on everybody and

you are going to get some heat on you, but the

degree of heat you're going to get is up to

Greg. It's not up to us--it's up to Greg. Okay?

That's as straightforward as I can be, Bud. I

can't be any more forward. That is what I feel

like happened.

We have got to have -- we have got to have

you help yourself here, Buddy. Not us, you

help yourself. And if you are honest with us

and you come through this stuff --let's talk

about it. -

Okay. I know it's hard for you. I'm not going

to say it is an easy task for you to do this, but

what I'm telling you is the quicker we get this

done, the better it is going to be for you.

Okay?" (R. 29-31.)

In Gentry v. State, 1994 Ala. Crim. App. LEXIS 415,

[Ms. 92-0409, September 30, 1994] __ So. 2d __ (Ala. Crim.

App. 1994), this court stated:

Extrajudicial confessions are prima facie

involuntary and inadmissible as evidence; the

burden is on the state to show voluntariness

and a Miranda predicate in order for such

confessions to be admitted into evidence.

Lewis v. State, 535 So. 2d 228 (Ala. 1988). In

order for a confession to be admitted into

evidence it cannot be the result of any direct

or implied promise, however slight. Goodson

v. State, 540 So. 2d 789 (Ala.Cr.App.), cert.

denied, 540 So. 2d 789 (Ala. 1989). Whether

there was a voluntary and knowing waiver of

Miranda rights must be decided from the

particular facts and circumstances of each

case, including the background, experience,

and conduct of the accused -- the totality of

the circumstances. Lewis v. State; Magwood

v. State, 494 So. 2d 124 (Ala.Cr.App.), aff'd,

494 So. 2d 154 (Ala.), cert. denied, 479 U.S.

955 (1986).

'The true test of voluntariness of extra-judicial

confessions is whether, under all surrounding

circumstances, they have been induced by a

threat or a promise, express or implied, oper-

ating to produce in the mind of the prisoner

apprehension of harm or hope of favor; such

confessions must be excluded from the con-

sideration of the jury as having been procured

by undue influence."

Ex parte Weeks, 531 So. 2d 643, 644 (Ala. 1988), quoting

Womack v. State, 281 Ala. 499, 205 So. 2d 579 (1967). The

question of whether a confession is voluntary is initially to be

determined by the trial court, and thereafter the voluntariness

as affecting the credibility and weight to be given any

statement that an accused has made is a determination for the

jury. Lewis v. State; Ex parte Singleton, 465 So. 2d 443 (Ala.

1985). The trial court need only be convinced from a prepon-

derance of the evidence to find a confession to have been

voluntarily made. Ex parte McCary, 528 So. 2d 1133 (Ala.

1988); Ex parte Singleton _So.2dat_.

The totality of the circumstances surrounding the

appellant's statement convinces this court that the officers

never offered any promises or hopes of reward to the appel-

lant. They were simply making it clear to the appellant that it

was not their job to establish that he was not the triggerman

and that the appellant needed to tell them if he was not the

triggerman. Thus, the appellant's statement was not unlaw-

fully induced by some promise or hope of reward. The trial

court's decision was not "manifestly contrary to the great

weight of the evidence." Williams v. State, 456 So. 2d 852,

855 (Ala. Crim. App. 1984).

The judgment is affirmed.

AFFIRMED.

All the Judges concur except Taylor, P.J., who dissents with

opinion.

DISSENTBY:

TAYLOR

DISSENT:

TAYLOR, PRESIDING JUDGE, DISSENTING

I respectfully dissent from the majority's holding that

the appellant's statement to police was not an unambiguous

request for counsel. The appellant's question during police

interrogation, "Is it going to piss y'all off if 1 ask for my -to

talk to a friend that is an attorney? I mean, I'm going to do

whatever I have got to do. Don't get me wrong," was suffi-

cient to convey to the police officers interrogating him that he

wanted to talk to a lawyer.

This question was an "unequivocal" request for

counsel. See Davis v. United States, 512 U.S. _, 1145S. Ct.

2350, 129 L. Ed. 2d 362 (1994). As the United States

Supreme Court stated in Davis:

The suspect must unambiguously request

counsel. As we have observed, 'a statement

either is such an assertion of the right to coun-

sel or it is not.’ Smith v. Illinois, 469 U.S. [91]

at 97-98, 105 S. Ct. [490] at 494 [93 L. Ed. 2d

488 (1984)].... Although a suspect need not

'speak with the discrimination of an Oxford

don,' . . . he must articulate his desire to have

counsel present sufficiently clearly that a

reasonable police officer in the circumstances

would understand the statement to be a re-

quest for an attorney.

512 US. at_, 114.S. Ct. at 2355, 129 L. Ed. 2d at 371.

The statement in the present case can only be con-

strued as a request for counsel. The phrase, "Is it going to

piss y'all offif..." suggests that the interrogatee did not want

to arouse the anger of the interrogators. The phrase, "I mean,

I'm going to do whatever I have got to do," indicates that the

interrogatee thought he would have to make a statement and

was not refusing to "do whatever [he has] got to do." The

phrase, "Don't get me wrong," again is a request to the

interrogators not to interpret any of the interrogatee's actions

as hostile or uncooperative. Once these fear-based qualifying

statements from the interrogatee are dealt with, what he is

saying is that he wanted "to talk to a friend that is an attor-

ney.” This ts a real-life interrogation and a real-life request

for an attorney by an intimidated suspect who is in close

confinement and is surrounded by law enforcement officers.

Because the authorities disregarded the appellant's

unequivocal request for counsel and continued the question-

ing, the appellant's statement should have been suppressed.

Receipt of the statement into evidence violated his constitu-

tional right to counsel.

ALABAMA v. BROWN, GREGORY ALLEN

93-1510

SUPREME COURT OF THE UNITED STATES

513 U.S. 801; 115 S. Ct. 43; 130 L. Ed. 2d 5; 1994 U.S.

LEXIS 5402; 63 U.S.L.W. 3256

October 3, 1994, Decided

JUDGES:

Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter,

Thomas, Ginsburg, Breyer.

OPINION:

The petition for a writ of certiorari is granted.

The judgment is vacated and the ease is remanded to the

Court of Criminal Appeals of Alabama for further consider-

ation in light of Davis v. United States, 512 U.S. 452

(1994).

Gregory Allen Brown v. State

CR-91-0215

COURT OF CRIMINAL APPEALS OF ALABAMA

630 So. 2d 481; 1993 Ala. Crim. App. LEXTS 1017

August 13, 1993, Released

SUBSEQUENT HISTORY:

First Correction.

PRIOR HISTORY:

Appeal from Jefferson Circuit Court. Michael McCormick,

Judge. (CC-91-2136).

DISPOSITION:

REVERSED AND REMANDED.

COUNSEL:

For Appellant: Louis Wilkinson, Birmingham.

For Appellee: James H. Evans, atty. gen., and Beth Poe, asst.

atty. gen.

JUDGES:

MONTIEL

OPINIONBY:

MONTIEL

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OPINION:

MONTIEL, JUDGE

The appellant, Gregory Allen Brown, was indicted for

murder, made capital because it was accomplished pursuant

to acontract. See § 13A-5-40(a)(7), Code of Alabama 1975.

The jury found the appellant guilty as charged 1n the indict-

ment and recommended that he be sentenced to life imprison-

ment without parole. The trial court accepted the jury's

recommendation and sentenced the appellant to life imprison-

ment without the possibility of parole.

The evidence presented by the State tends to establish

the foilowing. Jerry Wayne Callahan, the victim, was the

owner of a wholesale diamond business and owned a 90%

interest in Riverchase Jewelers, a jewelry store in Jefferson

County, Alabama. The evidence tended to show that the

businesses owned by Callahan were in serious financial

trouble. The appellant owed approximately $ 1,100,000 on

notes secured by the businesses, which he told witnesses he

could not pay.

The appellant was a friend of Callahan's and became

acquainted with him through gambling ventures. The

appellant was the dealer in high stakes card games in which

Callahan participated. Witnesses for the State testified that

the appellant and Callahan had participated in a card game on

- the night of February 6, 1991, and that Callahan had won

$15,000. The following day, February 7, 1991, the appellant

paid Callahan $9,000 of the money that he had won at the

card game.

Pat Costello, who owned the remaining 10% interest

in Riverchase Jewelers, testified that Callahan had been upset

over his financial situation and that he once commented that

he would be better off dead. He testified that Callahan did not

come into the store on February 7, 1991, the day of Callahan's

death. He said that on that day the appellant had come to the

. Store twice, once to pick up a large diamond ring, the ap-

praised value of which was $ 15,600, and the next time to

pick up paper-work regarding the ring. According to

Costello, Callahan had instructed him to give the appellant

these items and the appellant did not pay for the ring.

A neighbor who lived near Callahan testified that

between 3:30 and 4:00 p.m., he heard a knock on his door.

When he opened the door, he saw an individual, who he

described as being the approximate height and weight of

Robert Gospodareck, a codefendant in this case, walking

down the stairs. Another neighbor testified that between 3:00

and 4:00 in the afternoon of February 7, 1991, she heard a

loud "bang." On that same day, a woman who had occasion-

ally dated Callahan discovered his body in his apartment.

Callahan had been shot once through the heart.

Jerry Noto, the owner of a local convenience store,

testified that the appellant had been in his store on two times

on the day of Callahan's death. The first time the appellant

came into the store, he was displaying the diamond ring.

According to Noto, the appellant left the store and returned

with Gospodareck. Witnesses testified that the appellant and

Gospodareck were at the store between 4:30 and 5:00 on the

afternoon of the killing. According to the witnesses, the

appellant talked with Gospodareck for a short while and then

Gospodareck left the store. Noto testified that the appellant

appeared nervous. Testimony established that Callahan's

apartment was near Noto's store.

During their investigation of Callahan's death,

investigators with the Hoover Police Department, Detective

Peyton Zarzour and Sergeant Edward Braden, received

information that the appellant was involved in the card game

that took place the night before Callahan's death. The

investigators contacted the appellant by telephone to arrange

a meeting with him at the Hoover Police Department to

discuss their investigation. The appellant agreed to meet with

the investigators. As the time of the meeting approached, the

investigators were watching the appellant's home. The

investigators saw the appellant load his vehicle with luggage

and boxes. The appellant then got into his vehicle and drove

toward Fultondale, Alabama, in the opposite direction of the

Hoover Police Department. The investigators suspected that

the appellant was attempting to leave town without meeting

with them and they asked Gardendale police officers stop the

appellant's vehicle. Once they stopped the vehicle, the

Gardendale police called the investigators to the scene. The

appellant assured them that he still planned to meet with them

as he had told them earlier he would.

Zarzour, without entering the vehicle, saw a .45

caliber handgun inside the appellant's vehicle. The appellant

told the investigator that Callahan had given him the gun.

The appellant then told the investigators that he had a letter

that would explain everything. The appellant permitted the

investigators to enter his car and get the letter. The letter was

handwritten and stated:

I, Jerry W. Callahan, being of sound mind and

body, do state that it is my wish that if certain

parties are arrested for causing my death I do

not wish for their prosecution.

This party has enabled me to leave this life

with some form of dignity and self respect.

My deteriorating condition and the nonexist-

ing chance of any survival have lead me to

call on my friend for the ultimate act of

friendship.

Dr. Charles Clark of St. Vincent and Dr.”

Zeiger of Carraway can and will attest to my

poor chance of any kind of decent existence in

my last weeks. I did not want my family to

live with the stigma that I took my own life

coupled with the fact they didn't know of my

condition.

Please know that this act was done in the

manner that I chose, which would cause my-

self and the above mentioned party the least

amount of suffering.

The note was signed by Callahan. At trial, a handwnit-

ing analyst testified that in his opinion the note was written by

Callahan.

The appellant was then read his Miranda rights, was

placed under arrest, and was taken to the Hoover police

station. The appellant was again read his Miranda nights

before any statements were taken. The appellant indicated

that he understood his rights, and he signed a waiver of nghts

form and a consent to search form. The appellant's statement

was videotaped. After the appellant made his videotaped

statement, he made a written statement. In his statements, the

appellant explained his participation in the offense and

implicated Gospodareck in the shooting of Callahan.

A forensics expert testified that an autopsy on

Callahan did not reveal any life threatening illness that would,

in the near future, cause Callahan's death. Also, the testimony

reflected that the doctors named in Callahan's note had not

treated Callahan for any life threatening illness.

The appellant argues that the trial court erred in failing

to suppress the statements he made to the detectives. Specifi-

cally, the appellant argues that the statements were obtained

in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451

U.S. 477, 101 S. Ct 1880, 68 L. Ed. 2d 378 (1981), because,

he says, during the course of giving his videotaped statement,

the appellant requested that he be allowed to speak to an

attorney and the officers did not provide him with counsel nor

did they clarify his request for counsel before continuing with

their interrogation.

The transcript of the videotaped statement of the

appellant shows that the following conversation took place:

"Q (By Sgt. Braden) From the very start.

"Q (By Det. Zarzour) From the very start. From the time he

gave you the letter --

"A [appellant] Okay.

"Q Go ahead.

"A Is it going to piss y'all off if I ask for my -- to talk to a

friend that is an attorney. I mean, I'm going to do whatever I

have got to do. Don't get me wrong.

"Q Well, I understand that. I understand what you are saying.”

"A You have got to realize, man, I'm. . . scared to death.

"Q Well, and rightfully so. I don't blame you one bit because

there's a serious problem here, but if you didn't pull the

trigger, then we need to know what exactly happened, okay?

"Q (By Sgt. Braden) It's up to you, Greg, whatever you want

to do. Like he said.

"A Listen, I don't know what exactly happened. I was net

there.

"Q Okay.

"Q We know you met -- we know you met him over at Pick-

a-Pack, we know y'‘all left, we know you brought him back.

We know all that. We know where you were, we have got

people that have seen you, we know.

It's like I told you earlier, we already know.

"Q (By Det. Zarzour) That's why I said don't beat around the

bush, let's get to it and get it over with.

"A Allright... .”

Before this colloquy, the appellant had made no

incriminating statements. After this colloquy, the appellant

gave the investigators information regarding the death of

Callahan. After the appellant gave the videotaped statement,

the appellant then made a summarized written statement. We

agree with the appellant that both statements were due to be

suppressed.

In Miranda, the United States Supreme Court held that

under the Fifth Amendment, an accused has the nght to

counsel during custodial interrogation. In Edwards, our

Supreme Court expounded on the accused's Fifth Amendment

rights and held:

When an accused has invoked his right to

have counsel present during custodial interro-

gation, a valid waiver of that nght cannot be

established by showing only that he responded

to further police-initiated custodial interroga-

tion even if he has been advised of his rights.

We further hold that an accused . . . having

expressed his desire to deal with the police

only through counsel, is not subject to further

interrogation by the authorities until counsel

has been made available to him, unless the

accused himself initiates further communica-

tions, exchanges or conversations with the

police.

451 U.S. at 484 (footnote omitted).

In this case, the appellant's request to speak to a friend

who is also an attorney was clearly an invocation of his nght

to counsel. Further interrogation by the investigators without

providing the appellant the opportunity to confer with an

attorney violated the appellant's Fifth Amendment rights as

discussed in Miranda and Edwards.

The State argues in its brief that, "At most, the

comments made by Appellant could be considered an equivo-

cal invocation of his night to counsel." However, even if we

assumed that the appellant's request to speak to an attorney

was equivocal or ambiguous, the failure of the investigators

to clarify his request to speak to his attorney still violates

Miranda. In Robinson v. State, 574 So. 2d 910, 914 (Ala.

Crim. App. 1990), we adhered to the hoidings of the Fifth

Circuit and Eleventh Circuit Courts of Appeals:

"When a defendant makes an equivocal request

for an attorney during a custodial interroga-

tion, "the scope of that interrogation is imme-

diately narrowed to one subject and one only.

Further questioning thereafter must be limited

to clarifying that request until it is clarified."

Thompson v. Wainwright, 601 F.2d 768, 771

(Sth Cir. 1979) (emphasis in original); Nash v.

Estelle, 597 F.2d 513, 517 (Sth Cir.) (en

banc), cert. denied, 444 U.S. 981, 100 S. Ct.

485, 62 L. Ed. 2d 409 (1979). Any statement

taken by the state after the equivocal request

for counsel is made, but before it is clarified

as an effective waiver of counsel, violates

Miranda.' Owen vy. Alabama, 849 F.2d 536,

539 (11th Cir. 1988).

Contrary to the State's argument, we hold that at the

very least the appellant's comment was an equivocal request

to speak to counsel. Additionally, we conclude that the

investigators did not clarify the appellant's request to confer

with counsel. Rather, the investigators continued their

interrogation as if the request to speak with counsel had not

been made, telling the appellant how serious the matter was,

prodding him to provide more information, and ignoring the

requirement that their inquiries after the appellant's request

was made be specifically limited to clarifying that request.

Thus, regardless whether the appellant's request to speak to

his friend who is an attorney is considered a clear request or

is considered an equivocal request, the investigators’ failure

to respond to or to clarify that request nonetheless violated the

appellant's Fifth Amendment rights.

Because the appellant's statements were obtained in

violation of his Fifth Amendment rights, the statements

obt

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