Opposition — Edwards v. Arizona

Supreme Court brief1981

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IN THE

SUPREME COURT OF THE UNITED STATES

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ROBERT re are . &,

Petitioner, SM,

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-Vvs- P

STATE OF ARIZONA, Ors,

Respondent. :

RET PETITION FOR CERTIORARI

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ROBERT K. CORBIN

Attorney General of

the State of Arizona

CRANE McCLENNEN

Assistant Attorney General

State Capitol Building

West Wing -- Second Floor

Phoenix, Arizona 85007

Attorneys for RESPONDENT

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TABLE OF CONTENTS

QUESTIONS PRESENTED

STATEMENT OF THE CASE

JURISDICTIONAL STATEMENT

ARGUMENTS

PETITIONER WAIVED HIS SIXTH AMENDMENT RIGHT

TO AN ATTORNEY PRIOR TO QUESTIONING.

THE RECORD DOES NOT REFLECT THAT PETITIONER

WAS FORCED TO STAND TRIAL IN PRISON GARB,

ITI

THE TRIAL COURT PROPERLY PRECLUDED

PETITIONER'S WITNESS FOR FAILURE TO MAKE

TIMELY DISCLOSURE.

THE PROSECUTING ATTORNEY DID NOT IMPROPERLY

COMMENT ON THE FAILURE OF PETITIONER TO TAKE

THE WITNESS STAND.

PETITIONER WAS NOT DENIED HIS RIGHT TO A

SPEEDY TRIAL.

CONCLUSION

Page

me ow nwo =

TABLE OF CASES AND AUTHORITIES CITED

Case

Barker v. Wingo

407 U.S. 514

92 S.Ct. 2182

33 L.Ed.2d 101 (1972)

Estelle v. Williams

425 U.S. 501

96 S.Ct. 1691

48 L.Ed.2d 126 (1976)

Faretta v. California

422 U.S. 806

95 S§.Ct. 2525

45 L.Ed.2d 562 (1975)

Griffin v. California

380 U.S. 609

85 S.Ct. 1229

14 L.Ed.2d 106 (1975)

Inciso v. United States

429 U.S. 1099

(1977)

Jacek v. United States

434 U.S. 1070

(1978)

Lakeside v. Oregon

435 U.S. 333

98 S.Ct. 1091

55 L.Ed.2d 319 (1978)

Nash v. Estelle

597 F.2d 513

(5th Cir. 1979)

State v. Edwards

122 Ariz. 206

594 P.2d 72 (1979)

State v. Innis

State v. Sauve

112 Ariz. 576

544 P.2d 1091 (1976)

State v. Superior Court

26 Ariz.App. 482

549 P.2d 577 (1976)

State v. Travis

26 Ariz.App. 24

545 P.2d 986 (1976)

-ji-

Page

14,15,16

United States v. Charlton

565 F.2d 66

(6th Cir. 1977)

United States v. Clark

499 F.2d 802

(4th Cir. 1974)

United States v. Grant

549 F.2d 942

(4th Cir- 1977)

United States v. Hauck

586 F.2d 1296

(8th Cir. 1978)

United States v. Hodge

487 F.2d 945

(Sth Cir. 1973)

United States v. Pheaster

544 F.2d 353

(9th Cir. 1976)

United States v. Priest

409 F.2d 491

(Sth Cir. 1969)

United States v. Rodriguez-Gastelum

569 F.2d 482

(9th Cir. 1978)

Waridus v. Oregon

412 U.S. 470

93 S.Ct. 2208

37 L.Ed.2d 82 (1973)

White v. Finkbeiner

570 F.2d 194

(7th Cir. 1978)

Williams v. Florida

399 U.S. 28

90 S.Ct. 1893

26 L.Ed.2d 446 (1970)

AUTHORITIES

Arizona Rules of Criminal Procedure

Rule 8

Rule 15

28 U.S.C.

§ 1257(3)

United States Constitution

Fifth Amendment

Sixth Amendment

Fourteenth Amendment

-iii-

14,15

14,15,16

1,4,13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1979

NO. 79-5269

ROBERT EDWARDS,

Petitioner,

-VS-

STATE OF ARIZONA,

Respondent

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED

I. WAS APPELLANT'S CONFESSION OBTAINED IN

VIOLATION OF HIS SIXTH AMENDMENT RIGHT

TO COUNSEL?

II. WAS APPELLANT FORCED TO APPEAR AT TRIAL

IN PRISON CLOTHES?

III. WAS DEFENSE TESTIMONY PROPERLY PRECLUDED

FOR FAILURE TO MAKE TIMELY DISCLOSURE?

IV. WAS THERE IMPERMISSIBLE COMMENT ON

APPELLANT'S FAILURE TO TESTIFY?

V. WAS APPELLANT DENIED HIS RIGHT TO A

SPEEDY TRIAL?

STATEMENT OF THE CASE

On October 9, 1974, a robbery occurred at the LaConga Bar

in Tucson. (R.T. of Apr. 21, 1977, at 15.) During the

robbery, Carlos Mungia, the owner of the bar, died of a heart

attack. (Id. at 17-20.) Mrs. Esparza, the only surviving

witness, was never able to identify who the intruders were.

(Id. at 22.)

1 By September 1975, the police had exhausted all of their

2|| possible leads. (R.T. of Apr. 21, 1975, at 118-19.) At that

3|| time, Cleveland (Kevin) Reed, who had been arrested on other

4|| charges, told the police that he could give them information

5|| about the LaConga robbery. (Id. at 106.) He was one of the

6|| individuals involved in the robbery, and gave the police all

7|| the details in exchange for a grant of immunity.

8 On January 19, 1976, the Tucson Police obtained a complaint

9 charging appellant, Robert Edwards, and Willie Leroy Williams

10|| with the murder of Carlos Mungia and the robbery and burglary

11|| of the LaConga Bar. On January 23, 1976, the Pima County Grand

12 Jury returned an indictment against Manuel Chiquete Soto,

13]| willie Leroy Williams, and Willie Barefield aka Robert Edwards,

14 charging them with the above crime. On March 5, 1976, Edwards’

15 attorney filed a motion for redetermination of probable cause,

16|| based on the fact that the grand jury transcript had omitted

17|| from it the Prosecuting attorney's explanation to the jury of

18|| the definition of murder. Soto and Williams joined in this

19|| motion. The state opposed this motion. The trial court ruled

20!| that the defendants had the right to have a full transcript of

21 the grand jury proceeding, and that the omission deprived them

22!| of this right. It noted that it had no reason to believe that

23 anything improper had been done by the county attorney. It

24|| nonetheless quashed the indictment.

25 The state then filed a motion of appeal and a motion to

26 Stay the proceedings in the superior court. On May 13, 1976,

the Court of Appeals issued its opinion denying the special

28/| action. State v. Superior Court, 26 Ariz.App. 482, 549 P.2d

29 577 (1976). The opinion stated that there was no intimation

30 that the county attorney had made any improper remarks, but

31 denied the special action because there was no way of telling

from the grand jury transcript what had transpired. 26 Ariz.

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App. at 484, 549 P.2d at 579. The court denied rehearing on

June 16, 1976, and the state filed a petition for review. On

July 20, 1976, the Arizona Supreme Court denied the petition.

This order was received by the Court of Appeals on July 26,

1976.

On July 30, 1976, Soto, Williams, and Edwards were

reindicted under cause no. A-30683. Trial was set for

September 28, 1976. On September 8, 1976, Williams’ and

Edwards' attorneys moved to continue the trial date so that

they could prepare for the trial and find alibi witnesses.

(R.T. of Sept. 8, 1976, at 7-18.) The state said that it was

ready to go to trial on September 28, 1976, but otherwise took

no position on the motion. (Id. at 8, 13.) The trial court

granted the motion, and continued the trial to October 27,

1976. (Id. at 18-19.) |

On September 7, 1976, Edwards’ attorney filed a motion to

dismiss on speedy trial grounds. On stipulation, hearing on

this motion was continued. Williams’ attorney filed a similar

motion on September 14, 1976. Edwards joined in this motion.

Soto's attorney then filed a motion to sever. (R.T. of

Sept. 22, 1976, at 2.) The trial court granted this motion.

(Id. at 5.) Soto's attorney also filed a motion to dismiss on

the basis of a denial of speedy trial. (Id.) Williams and

Edwards did not join in the motion, but reserved the right to

make the same motion at a later date. (Id. at 16.) The trial

court denied Soto's motion to dismiss. (Id. at 18.)

Williams' and Edwards' attorneys then filed a motion to

continue so that they could interview doctors who would be

witnesses. (R.T. of Oct. 4, 1976, at 2, 5.) The state joined

in the motion for the same reason, and also because of a

schedule conflict. (Id. at 6.) The trial court granted the

motion, excluded the time, and continved the trial to

approximately November 15, 1976. (Id. at 7.)

On October 5, 1976, Edwards' attorney filed a memorandum in

support of his motion to dismiss on speedy trial grounds. The

basis of this motion was the Rule 8 time limits from the

January 19, 1976, arrest date, and the prejudice under the

Sixth Amendment because he could not locate Delores Williams,

Pat Brown, and Chenise Wilson, all of whom, it was claimed,

would testify that Edwards was somewhere other than the LaConga

Bar at the time of the robbery. Edwards' attorney also filed a

motion to suppress his statements, and a motion for a mental

examination.

The trial was subsequently set for November 15, 1976.

(R.T. Of Nov. 9, 1976, at 10.) Williams' and Edwards'

attorneys again filed motions to continue on the basis that

they were having trouble contacting Nellie Esparza, and trouble

contacting expert witnesses who, it was hoped, would testify in

their behalf. (R.T. of Nov. 16, 1976, at 3-4.) The trial

court granted the motion and continued the trial to December 7,

1976. (Id. at 7.) The defendants then argued the motion to

dismiss on speedy trial grounds. (Id. at 14-24.) The trial

court denied this motion.

The trial court granted the motion for a mental

examination. (R.T. of Nov. 16, 1976, at 46-47.) Because one

of the doctors was not able to complete his examination by

December 7, 1976, the trial court continued the trial to

December 14, 1976. Again, the doctors were not able to

complete their reports, and the Rule 1l hearing was continued

to January 3, 1977. On that date, the trial court found both

defendants competent to stand trial. (R.T. of Jan. 3, 1977, at

77.)

On January 4, 1977, Edwards filed an oral request, and

Williams filed a written request, for new attorneys. (R.T. of

Jan. 4, 1977 at 3, 6, 10.) Edwards' basis was that he did not

think that his attorney had enough experience. (Id. at 8.)

Williams' basis was that he felt there was a conflict between

his attorney and himself, and that his attorney was not ready

to go to trial. (Id. at 11-12.) The trial court denied these

motions. (Id. at 37.) It did, however, conduct a hearing to

determine whether the defendants were competent to waive

counsel and defend themselves. (R.T. of Jan. 5, 1977, at 4.)

The trial court determined that the defendants were competent,

and appointed them as their own attorneys. (Id. at 87.) The

trial court gave the defendant a waiver of counsel form to

sign. (Id. at 99.) The defendants refused to sign them,

claiming that they did not waive counsel, they only refused to

be represented by their present attorneys. (Id. at 100,

104-05.) The trial court therefore reversed its decision to

let defendants represent themselves. (Id. at 106-08.) The

defendants' attorneys again urged the motion to dismiss for

denial of speedy trial, arguing the same grounds as previously

presented. (Id. at 130-31, 133, 141-43.) The trial court took

the motion under advisement and ultimately denied it. (Id. at

156.) .

Williams' and Edwards' attorneys then filed a special

action challenging the ruling of the trial court refusing to

allow defendants to represent themselves, and obtained an order

staying the trial proceedings. The Court of Appeals indicated

that it would lift the stay to allow the trial court to appoint

new counsel. (R.T. of Jan. 18, 1977, at 4.) The trial court

did so, and reset the trial for February 18, 1977. Williams’

and Edwards' new attorneys then moved for a continuance on the

basis that they needed more time to prepare for the trial.

eesBBNBREBBE SS &

(R.T. Of Feb. 3, 1977, at 3-6.) The trial court granted the

motion over the state's objection, and reset the trial for

March 3, 1977. (Id. at 6, 13-14.) Williams' and Edwards’

attorneys then filed another motion to continue on the grounds

that they were having difficulty obtaining a suitable expert

witness (the same reason that was urged in the November motion

to continue). (R.T. of Nov. 16, 1976, at 3-4.) The trial

court denied this motion. (R.T. of Feb. 28, 1977, at ll.)

Williams and Edwards then filed motions to dismiss their new

attorneys, and appoint new counsel. (R.T. of Mar. 2, 1977, at

2-3.) The grounds were that the attorneys had not adequate

time to prepare the case. (Id. at 6-7; R.T. Of Mar. 3, 1977,

at 3.) The trial court then made a finding that the defendants

were competent to represent themselves, and so appointed them.

(R.T. of Mar. 2, 1977, at 50-51; R.T. of Mar. 3, 1977, at

65-68.) Williams then filed a motion to continue to obtain

some out-of-state witnesses. (R.T. of Mar. 3, 1977, at

69-70.) Edwards stated that these witnesses had nothing to do

with his case. (Id. at 85.) The trial court granted the

motion over the state's objection, and reset the trial for

March 11, 1977. (Id. at 73, 93-94.)

The trial court then heard Edwards' motion to suppress his

statement to the police. (R.T. of Mar. 4, 7, ll, 1977, at 4.)

Sergeant Bunting testified that he read Edwards his Miranda

rights at the police station after his arrest on January 19,

1976. (Id. at 8.) Edwards stated that he understood his

rights, and gave a tape-recorded statement, in which he gave an

alibi. (Id. at 10-11.) Detective Hallums, who knew Edwards

previously, then spoke to him, the result of which Edwards

wanted to make a deal. (Id. at 12-13, 19-20, 58.) Bunting

talked further with Edwards, who later said that he wanted to

talk to an attorney before he made a deal. (Id. at 16-18,

20.) At this point the questioning stopped. (Id. at 21-22.)

During this time, Edwards never said that he would not talk

without an attorney present, and was apparently cooperative.

(Id. at 27-31, 59.)

Detective Marmion, who was the lead detective on the case,

testified that, the next day, he and Detective Milne went to

talk to Edwards. (R.T. of Mar. 4, 7, 11, 1977, at 24-25, 40,

51.) Marmion knew that Bunting had spoken with Edwards, but he

did not know what had been said, and further, Bunting had not

told Marmion to speak to Edwards. (Id. at 24, 39-40.) Marmion

again advised Edwards of his rights, and Edwards said first he

wanted to hear the tape of Manny Soto's confession. (Id. at

46, 51.) After he heard about 10 to 12 minutes of the tape,

Edwards said he would give a statement, but that he did not

want it taped because he did not want it used against him.

(Id. at 42-43, 51-53.) The officers made it very clear to

Edwards that a verbal statement could be used against him in

court. (Id. at 43-45, 52-54, 67-69.) Edwards then made an

oral statement. (Id. at 53.)

On Friday, March 4, 1977, Edwards testified at the

yoluntariness hearing. At this time, he acknowledged making

the taped exculpatory statement on January 19, 1976, but denied

making the oral incriminating statement on January 20, 1976.

(R.T. of Mar. 4, 7, ll, 1977, at 34-38.) On Monday, March 7,

1977, Edwards again testified. This time, he said that he

asked for an attorney before he made the January 19 statement.

(Id. at 73-74.) He further changed his story from the previous

Friday, and now admitted that he made an oral statement on

January 20, 1976. (Id. at 85-87.) His explanation for this

inconsistency was that he had been “confuscd" on Friday. (Id-

at 87, 91.) After argument, the trial court took the motion

under advisement. (Id. at 114.)

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Originally, the trial court granted Edwards’ motion to

suppress. (R.T. of Mar. 8, ll, 14, 16, 1977, at 37.) The

trial court ruled that all of the statements were voluntary,

and could be used in rebuttal. (Id.) It found that the

officer's testimony was credible and that Edwards' was not.

(Id, at 37-38.) It found that Edwards' statement on January

19, 1976, that he wanted to make a deal was an indication that

he did not want to make a statement until he was represented by

an attorney. (Id. at 38-39.) It further found that the

questioning stopped at this point. (Id. at 39.) It then found

that, the next day, Detective Marmion went to interview Edwards

on his own initiative, without any compulsion or wrongdoing.

(Id.) It held, however, that, once Edwards indicated on

January 19, 1976, that he wanted an attorney, any further

questioning of Edwards was a per se violation of Edwards' right

to an attorney under Miranda, whether or not the officer knew

of the request for an attorney. (Id. at 39-40.) The basis for

this ruling was State v. Sauve, 112 Ariz. 576, 544 P.2d 1091

(1976). (Id. at 40.)

The following Monday, the state provided the trial court

with the case of State v. Travis, 26 Ariz.App. 24, 545 P.2d 986

(1976). (R.T. of Mar. 8, ll, 14, 16, 1977, at 55-56.) The

trial court noted that it had not considered the Travis case

when it ruled on the motion to suppress, and that it found that

the Travis case was directly om point. It therefore reversed

its ruling, and found the statements admissible. (Id. at

64-65.)

Edwards then moved to sever his trial from that of

Williams. (R.T. of Mar. 8, 11, 14, 16, 1977, at 83.) ‘The

trial court granted this motion. (Id. at 99.) The trial

ultimately ended when the trial court declared a mistrial

because the jurors were unable to reach a unanimous verdict.

Edwards' second trial began April 20, 1977. Prior to the

start of the trial, Edwards informed the trial court that his

civilian clothes had either heen stolen or misplaced. (R.T. of

Apr. 20, 1977, a.m., at 1-9 to 1-10.) He did not, however, ask

for a continuance, nor did he refuse to go to trial in the

clothes he was wearing. (Id.) The trial court ordered the

sheriff to make every effort to find the missing clothes, and

report back to the court. (Id. at 1-10.) That afternoon,

Edwards again raised the matter of his clothes. (R.T. of

Apr. 20, 1977, p.m., at 72.) Edwards' attorney informed the

trial court that he had called the sheriff's office right after

the trial court had entered its order that morning, and that

the sheriff's office had initiated the search immediately.

(Id. at 73-74.) Edwards' attorney said that he would check

with the sheriff's office that evening, and, if the clothes had

not been found, would try to find some other clothes for

Edwards. (Id. at 74.) No further mention was made of clothes

after that, nor does the record indicate what Edwards was

wearing after that.

On April 21, 1977, testimony began. Nellie Esparza

testified about what happened at the LaConga Bar on October 9,

1974. Mrs. Esparza never said on direct what race the

intruders were, but Edwards, on cross-examination brought out

the fact that they were black. (R.T. of Apr. 21, 1977, at 22,

28-29, 42.) Officer Larry Bunting then testified about the

arrest of Edwards on January 19, 1976, and the statement that

he made that night. (Id. at 62, 67.) Upon cross-examining

Officer Bunting, Edwards made the statement that he had been

put in solitary, a fact which Officer Bunting had not given in

his testimony. (Id. at 93.)

Detective Marmion then testified including testimony about

the confession Edwards made on January 20, 1976. (Id. at

eoenoaw Fr ow nN

RBEBBES

SSR 4

109-12.) Again, on cross-examination, in asking his questions,

Edwards stated facts that had not come out in the testimony.

(Id. at 125, 128.) Cleveland (Kevin) Reed then testified, and

said that he and Edwards were the ones who robbed the LaConga

Bar. (Id. at 152, 155, 157-59.) Again, Edwards talked about

himself and his role in the robbery when asking questions on

cross-examination. (Id. at 173, 178-79.)

On April 22, 1977, Edwards’ attorney notified the state

that Edwards wanted to subpoena Frenchy Campbell, an inmate in

the County Jail, as on alibi witness. (R.T. of Apr. 22, 1977,

at 3-6.) The state objected to this untimely disclosure.

(Id.) The trial court reserved ruling on this. (Id. at 3-7.)

The state then called Oletha Delores Williams Hunter,

Edwards' common-law wife and alibi witness. (R.T. of Mar. 24,

28, 1977, at 4-19 to 4-24, 4-34; R.T. of Apr. 21, 1977, at 93,

191; R.T. of Apr. 22, 1977, at 3-10 to 3-12, 3-16 to 3-17.)

She testified that Cleveland Reed, Edwards, and her brothers

Willie and Albert Williams came over to her house at about

3:00 aem. the night of the LaConga Bar robbery. (R.T. of

Apr. 22, 1977, at 3-12 to 3-15.) Reed and Edwards then began

arguing about money. (id. at 3-13.) This corroborated

Cleveland Reed's testimony. (R.T. Of Apr. 21, 1977, at 162.)

Prior to their arrival, she had been alone there with her

children. (R.T. of Apr. 22, 1977, at 3-15.) Edwards .again

cross-examined this witness using facts that had not been

brought out, and would only have been known to him. (Id. at

3-17 to 3-19.)

Dr. Brucker then testified that Mr. Munyia died of a heart

attack. (R.T. of Apr. 22, 1977, at 3-39 to 3-43.) He further

testified that the heart attack was precipitated by the "fight,

flight, fright" syndrome caused when the intruders put the gun

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to Mr. Mungia's head, and made him open the safe. (Id. at 3-47

to 3-49.)

The trial court then considered the question of allowing

Frenchy Campbell to testify as an alibi witness. The county

attorney had interviewed Mr. Campbell, and had come to the

conclusion that he was not able to give any testimony about

Edwards’ whereabouts at the time of the robbery. (R.T. of

Apr. 22, 1977, at 3-131, 3-187.) Edwards informed the trial

court that Mr. Campbell would testify that he was extremely

intoxicated the night of the robbery, and that he had not been

listed earlier because he had had hepatitis, and could not come

to the courthouse. (Id. at 3-188 to 3-191.) The trial court

said it would hear an offer of proof the following Monday.

(Id. at 3-191.)

The following Monday, the offer of proof showed that

Mr. Campbell would not give any alibi statements, but would

instead give testimony supporting an intoxication defense, a

defense that had not previously been disclosed. (R.T. of

Apr. 25, 1977, at 4-4, 4-7 to 4-8.) Edwards again said this

witness had not been disclosed at the first trial because he

had had hepatitis. (Id. at 4-11.) The trial court found that

the witness had not been timely disclosed, and imposed the

sanction of precluding his testimony. (Id. at 4-12 to 4-13.)

After Edwards had presented his evidence, and the parties

were about to give their closing arguments, the state asked the

trial court to admonish Edwards not to argue to the jury about

the death penalty and "fighting for his life" as Edwards had

done at the first trial, and asked the trial court to instruct

Edwards that he must confine his argument to facts in

evidence. (R.T. of Apr. 26, 27, 1977, at 5-83.) Edwards had

been previously told this by the trial court. (R.T. of

Mar. 17, 18, 1977, at 1-11.) Edwards said that he agreed with

lle

this, and said that he knew that he could nct argue what was

not in evidence. (R.T. of Apr. 26, 27, 1977, at 5-84.) The

trial court, however, granted the state's motion to admonish

Edwards. (Id.)

Upon commencing his closing argument, the state's attorney

wrote on the easel "Defendant confessed." (R.1T. Of Apr. 26,

27, 1977, at 5-85, 5-166.) He asked the jury to remember in

particular the testimony of Detective Marmion, Detective Milne,

and Sergeant Bunting in that regard. (Id. at 5-85.) After the

state's attorney had concluded, Edwards wrote on the easel

"Defendant did not confess." (Id. at 5-97, 5-166.) Edwards

then argued to the jury that, because Marmion and Milne only

gave testimony of an oral confession, and had no evidence of a

written confession, the jury should take that to mean that

Edwards did not confess, and should “take that into what we

call into consideration, into evidence." (Id. at 5-lll, 5-127,

5-128.) Later, he said "[{aJs you heard in my statement, I was

at a party," referring to the taped statement. (Id. at

5-115.) He then discussed his alibi explanation, many of the

facts of which he had provided to the jury while questioning

his witness. (Id. at 5-115 to 5-116; 5-40 to 5-42, 5-45 to

5-46, 5-48.) He again told the jury that his defense was that

he was not there at the time. (Id. at 5-118, 5-134 to 5-135.)

He made further references to statements he had made and

explanations he had made, and denied making the confession of

January 20, 1976. (Id. at 5-124, 5-126 to 5-128.)

Additionally, Edwards disregarded the trial court's

admonishment and, on two occasions, told the jury that he was

facing the death penalty. (Id. at 5-119, 5-120, 5-137.)

In his final argument, the state pointed out to the jury

that no witness had taken the stand and given evidence that

Edwards did not confess. (R.T. of Apr. 26, 27, 1977, at 5-138

120

BSBESBBNBREBBE SSG

5-139.) Edwards' attorney then made a motion for a mistrial

based upon the reasoning that Edwards was the only one who

could have given evidence that he did not confess, and that

this statement called to the jury's attention the fact that

Edwards did not take the stand in his own behalf. (Id. at

5-139.) The trial court denied this motion. (Id. at 5-140.)

The state's attorney made further comments, and again Edwards’

attorney moved for a mistrial. (14. at 5-143 to 5-144, 5-147

to 5-148.) The trial court again denied the motion. (Id. at

5-148.)

The jury ultimately found Edwards guilty of all three

counts. The trial court subsequently sentenced Edwards to

death. The Arizona Supreme Court affirmed the conviction, but

remanded the case to the trial court for another mitigation

hearing. State v. Edwards, 122 Ariz. 206, 594 P.2d 72 (1979).

After this hearing, the trial court sentenced Edwards to life

in prison. This petition followed.

JURISDICTIONAL STATEMENT

Petitioner claims a deprivation of the rights guaranteed

under the Fifth, Sixth, and Fourteenth Amendment, and seeks

review pursuant to 28 U.S.C. § 1257(3).

ARGUMENT

PETITIONER WAIVED HIS SIXTH AMENDMENT RIGHT

TO AN ATTORNEY PRIOR TO QUESTIONING.

Petitioner contends that his confession was taken in

violation of his Sixth Amendment right to be represented by

an attorney. The circuits that have address2d this issue

have held that, once an accused has indicated that he

wishes to consult an attorney prior to questioning, there

is per se rule that prohibits further contact with the

accused, and that the accused may make a subsequent, valid

waiver of counsel. United States v. Hauck, 586 F.2d 1296

(8th Cir. 1978), cert. denied, U.S. , 99 S.Ct. 2170,

60 L.Ed.2d 1050 (1979); White v. Finkbeiner, 570 F.2d 194

(7th Cir. 1978); United States v. Rodriguez-Gastelum, 569

F.2d 482 (9th Cir.) (en banc), cert. denied, 436 U.S. 919

(1978); United States v. Grant, 549 F.2d 942 (4th Cir.),

cert. denied, 432 U.S. 908 (1977); United States v.

Pheaster, 544 F.2d 353 (9th Cir. 1976), cert.denied sub

nom. Inciso v. United States, 429 U.S. 1099 (1977); United

States v. Clark, 499 F.2d 802 (4th Cir. 1974); United

States v. Hodge, 487 F.2d 945 (5th Cir. 1973); see United

States v. Charlton, 565 F.2d 86 (6th Cir. 1977), cert.

denied, sub nom. Jacek v. United States, 434 U.S. 1070

(1978). In this case, petitioner said that he did not-want

te discuss a deal without first talking to an attorney.

The police immediately stopped questioning him. The next

morning, two other officers (who did not know about the

previous request) went to see petitioner. They played for

petitioner a taped statement by Manny Soto where he said

that petitioner had done the killing. Petitioner then

indicated that he would make a statement. The officers

first readvised petitioner of his rights, which he

acknowledged. The trial court and the Arizona Supreme

Court were therefore correct in determining that there had

been a valid waiver of counsel.

Petitioner contends that there is a split in the

circuits on this point, citing United States v.

Rodriguez-Gastelum, supra, Nash v. Estelle, 597 F.2d 513

(Sth Cir. 1979) (en banc), and United States v. Priest, 409

F.2d 491 (Sth Cir. 1969). In Priest, a 19-year-old with an

8th grade education requested an attorney. The police

ignored the request, and continued their interrogation.

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The court there held that there was no waiver of the rig

to an attorney. In Nash, there was an equivocable request

for an attorney, whereupon the assistant district attorney

asked some clarifying questions, and the suspect then gave

a statement. The majority reaffirmed the rule in Priest

that the interrogation must cease once thee has been an

unequivocable request for an attorney, but held that the

inquiry may continue if there has been an equivocable

request. The dissent noted that, once there has been an

unequivocable request for an attorney, the police may come

back and ask the suspect if he has changed his mind if

there has been a temporal break in the custodial

interrogation after the request for counsel. 597 F.2d at

520 n.2. In Rodriguez-Gastelum, the question was identical

to that in Nash: May the inquiry continue in the face of

an equivocable request for an attorney. The court then

went on, however, to hold that, once the Suspect has made

an unequivocable request for an attorney, there is no per

se rule prohibiting further statements by the Suspect, and

therefore the suspect can change his mind and waive his

right to an attorney.

It seems, then, that there is no conflict in the

circuits: All agree that, once a Suspect has invoked his

right to an attorney, there is. no per se rule that

Prohibits a confession in the future. Once a suspect has

invoked this right, however, the government has a heavy

burden in showing that the Suspect made a vo).untary waiver

of this right previously invoked. The only difference

between the circuits seems to be what will be a sufficient

showing that there was a voluntary waiver. In the present

case, petitioner's confession would be held éadmissible

under any of the tests adopted. As petitioner concedes,

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his confession would be held admissible unde: the Ninth

Circuit test set forth in Rodriguez-Gastelum. But the

confession would also be admissible under the Fifth Circuit

test in Nash because there was a temporal break between the

request for counsel and the purported waiver. Since

petitioner would not prevail under either test, should this

court desire to settle any inconsistencies in the different

tests, this would not be the case to do so because no

relief could be granted. Moreover, this Court presently

has before it a case dealing with a confession after an

assertion of the right to counsel. State v. Innis,

RZ , 391 A.2d 1158 (1978), cert. granted, 440 U.S. 934

(1979). A decision in that case may clear up any

ambiguities presently existing.

ARGUMENT

THE RECORD DOES NOT REFLECT THAT PETITIONER

WAS FORCED TO STAND TRIAL IN PRISON GARB.

Petitioner contends that he was forced to stand trial

in prison garb. The rule in this area is well-settled by

Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48

L.Ed.2d 126 (1976), and does not need further amplification

by this Court. The Arizona Supreme Court found that the

record was silent on this particular issue. 122 Ariz. at

215, 594 P.2d at 81. Since petitioner would still have a

state remedy available under Rule 32, Arizona Rules of

Criminal Procedure, respondent submits that it would be

proper to have petitioner exhaust his state -semedies before

consideration of this issue by federal courts.

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ARGUMENT

III

THE TRIAL COURT PROPERLY PRECLUDED

PETITIONER'S WITNESS FOR FAILURE TO MAKE

TIMELY DISCLOSURE.

Petitioner contends that it was improper for the trial

court to preclude the testimony of Frenchy Campbell. This

Court has held that preclusion is permissible if it is

reciprocal. Waridus v. Oregon, 412 U.S. 470, 93 S.Ct.

2208, 37 L.Ed.2d 82 (1973); Williams v. Florida, 399 U.S.

28, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Rule 15, Arizona

Rules of Criminal Procedure, provides such reciprocal

sanctions. In this case, petitioner wanted to present the

testimony of Frenchy Campbell, who purportedly was at the

same party as petitioner on the night of the murder 3 years

before, and coincidentally happened to run into petitioner

while they were both inmates at the Pima County Jail.

Although petitioner contended that Frenchy Campbell would

be an alibi witness, Campbell could only testify that

petitioner was intoxicated at 6:00 p.m., which was 7 hours

prior to the time of the killing. In light of the failure

to disclose this intoxication defense, the trial court was

correct in precluding this witness. And, in light of the

fact that Campbell could only testify that petitioner was

intoxicated at 6:00 p.m., while Oletha Delores Williams

Hunter testified that she picked up petitioner at the party

at 6:00 p.m. and was able to testify about the extent of

petitioner's intoxication, the Arizona Supreme Court was

correct in concluding that there was no prejudice.

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ARGUMENT

THE PROSECUTING ATTORNEY DID NOT IMPROPERLY

COMMENT ON THE FAILURE OF PETITIONER TO TAKE

THE WITNESS STAND.

Petitioner contends that the prosecuting attorney

improperly commented on his failure to take the witness

stand, as is prohibited by Griffin v. California, 380 U.S,

609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). ‘The Arizona

Supreme Court concluded that any improper comment by the

prosecuting attorney was invited by petitioner's Closing

argument stating facts not supported by the testimony. The

record reflects that the Arizona Supreme Court was correct

in this conclusion.

Petitioner attempts to characterize the decision of the

Arizona Supreme Court as somehow based upon the fact that

petitioner represented himself. A careful reading of the

opinion shows that this was not the case; the same result

would have been reached whether petitioner or an attorney

made the improper remarks.

There was, however, a further argument by the state

based upon the fact that petitioner represented himself

that the Arizona Supreme Court did not utilize in its

opinion, but that this Court would have to face if it chose

to grant this petition. Griffin holds that the state ‘and

the trial court cannot draw adverse inferences from the

exercise by a defendant of his right to remain silent. But

in the present case, petitioner did not remain silent. All

the while he cross-examined witnesses, he continually

Presented facts, not from the mouths of the witnesses, but

instead from his own mouth while he asked the questions.

Petitioner in effect testified without having to subject

himself to cross-examination. Because he did not remain

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silent, the comments by the prosecutor were not a comment

on the exercise of his right to remain silent. To reverse

on this issue would mean the conclusion that the jurors had

failed to notice the petitioner had failed to testify, and

only became aware of this fact when the prosecuting

attorney brought it out in rebuttal.! This would be an

assumption even more doubtful than the doubtful assumption

rejected by this Court in Lakeside v. Oregon, 435 U.S. 333,

339-40, 98 S.Ct.1091, 1095, 55 L.Ed.2d 319, 325-26 (1978).

This does not mean that a defendant would be penalized

for exercising his right to represent himself under Faretta

v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975). If a defendant asked questions the way an attorney

would, that is, no attempt to testify at the same time,

there would be no comment permitted by the prosecuting

attorney. It would only be in situations where the

defendant used his right of self-representation as a means

of being able to testify without being subject to

cross-examination that the prosecutor would be given the

right to comment on the fact that the defendant has given

only a partial explanation, not a full one.

ARGUMENT

PETITIONER WAS NOT DENIED HIS RIGHT TO A

SPEEDY TRIAL.

Petitioner contends that he was denied his right to a

speedy trial. The test in this area is plainly set forth

in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d

101 (1972). Under this test, the Arizona Supreme Court

noted that the delay was 14 months, but that only 4 of

these months was due to the state. It found that the 4

month delay was proper, and was caused by a good faith

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SSSRERSNERERBYRBGE

attempt by the state to litigate its rights. It found that

petitioner asserted his right to a speedy trial, although

the respondent disagrees with this conclusion. Finally, on

the most important issue, the Arizona Supreme Court found

that petitioner was not prejudiced by the 14 month total

delay, and was certainly not prejudiced by the 4 month

delay caused by the state. Petitioner was therefore not

denied his right to a Speedy trial.

CONCLUSION

Based upon the foregoing authorities and arguments,

respondent respectfully requests that this Court deny this

petition,

Respectfully submitted,

ROBERT K. CORBIN

Attorney General of

the State of Arizona

NE CLENNEN

Assistant Attorney General

Attorneys for RESPONDENT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.