Respondents Brief — Edwards v. Arizona

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= Supreme Court, U.S, |

FILED :

AUG 91980

No. 79-5269

MICHAEL RODAK, JR., CLERK

In the

Supreme Court of the United States

October Term, 1979

ROBERT EDWARDS, Petitioner,

Vv.

THE STATE OF ARIZONA, /vespondent.

On Writ of Certiorari to the Arizona Supreme Court

BRIEF FOR RESPONDENT

ROBERT K. CORBIN

Attorney General

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

CRANE MCCLENNEN

Assistant Attorney General

State Capitol Building

West Wing—Second Floor

Phoenix, Arizona 85007

602-255-4686

Attorneys for Respondent

August 9, 1980

See

QUESTIONS PRESENTED FOR REVIEW

1. Once a suspect has been arrested and has asked for an

attorney, may he later waive his right to an attorney prior

to consulting with an attorney?

2. Once a person has been formally charged with an of-

fense, may he waive his right to an attorney prior to

consulting with an attorney?

3. Assuming that petitioner could waive his right to an

attorney, did petitioner make an intelligent, knowing, and

voluntary waiver of his right to an attorney?

iii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CONTENTS .... - iii

TABLE OF AUTHORITIES ...... iv

OPINION IN THE LOWER Court . 1

STATEMENT OF THE CASE .. iain 1

SUMMARY OF ARGUMENT ............ccccsceceseseseees 9

ARGUMENT onlthaderiusinienninhontseheton 10

I. Once a Suspect Has Asserted His Right to an

Attorney, He May Later Waive That _

Prior to Seeing an Attorney. 10

II. Once a Person Is Charged With a Crime and

Is Therefore Entitled to an Attorney, He May

Waive That Right Prior to Seeing an Attor-

UN cicceiabbetennaiies sadiiedipiinecienaie 24

III. The Fourteenth Amendment Creates No Pro-

hibition to Interviewing a Person Once He

Has Waived His Right to An Attorney. ........... 26

IV. The Record Fully Supports the Determination

of the Trial Court That Petitioner Intelligent-

ly, Knowingly, and Voluntarily Waived His

Right To Remain Silent and His Right to an

Attorney. ............... nt 27

CONCLUSION ccccccsccccccccsccocseee : 32

| PREVIOUS PAGE WAS BLANK |

iv

TABLE OF AUTHORITIES

CasEs: Pace

Adams v. United States ex rel. McCann,

SUT Uy BRD CUDA) isha hikicchicdscecnsciececdlecciccesecocccetece 13

Biassingame v. Estelle,

604 F.2d 893 (Sth Cir. 1979) ........cccceececcccecseeceeees 16

Brewer v. Williams,

a ee cee 10,24,26,27

Cardinale v. Louisiana,

IT NE Te 26

Carvey v. LeFevre,

pg 23,24,27

Cobbs v. Robinson,

528 F.2d 1331 (2d Cir. 1975), cert. denied, 424

U.S. 947 (1976) pantedhnaishineinneattiniigiatibaindinnietsts 11,14

Coughlan v. United States

391 F.2d 371 (9th Cir.), cert. denied, 393 U.S.

EST CEE ee 25,27

Escobedo v. Illinois,

EE a 13,24,27

Fare v. Michael C.,

I i ii sacs cnencctinnmsbtemmeeeenuennnans 20

Johnson v. Zerbst,

ERTS a a 12

Kennedy v. Fairman,

618 F.2d 1242 (7th Cir. 1980) .........ccccccccceceececeeees 12,30

Maglio v. Jago,

580 F.2d 202 (6th Cir. 1978) ........ccccccccccccccccesceeeseeee 11

Massiah v. United States, _ ,

cs 8 aa ICME RTE 24,25,28

M v. Ohio, SH gins

aa A a RS 24

Michigar. v. Mosley, ei. ,

' 423 U.S. 96 (1975) | at Be 11,13,18

Miranda v. Arizona, ee. has! 7

384 U.S. 436 (1966) oii. 10,11;12,13,14,17,18,

mS : ; 19,20,22,23,25,26,27,28

Vv

Table of Authorities Continued

CASEs: PaGE

Nash v. Estelle,

597 F.2d 513 (5th Cir.) ‘ta banc), cert: ‘dented.

444 U.S. 981 (1979) ...........0. 11,15

North Carolina v. Butler,

441 U.S. 369 (1979) ................ ; 20

Rhode Island v. Innis,

US. , 100 S. Ct. 1682, 64 L. Ed.

2d 279 | SRSA AERE OES Fd 21

State v. Edwards,

122 Ariz. 206, 594 P.2d 72 (1979) 1

State v. Soto,

117 Ariz. 345, 572 P.2d 1183 (1977) 4

State v. Watson,

120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied,

440 U.S. 934 (1GTB) ....0csisereccecccesesees 4

Thompson v. Wainwright,

601 F.2d 768 (5th Cir. 1979) . 14

United States v. Blair,

470 F.2d 331 (5th Cir. 1972), cert. denied sub

nom. Crews v. United States, 411 U.S. 908 (1973) 17

United States v. Brown,

569 F.2d 236 (5th Cir. 1978) (en banc) ................. 16

United States v. Carpenter,

611 F.2d 113 (5th Cir. 1980) . 20

United States v. Charlton,

565 F.2d 86 (6th Cir. 1977), cert. denied sub

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

ARSE ar NERD Soe ' 11,30

United States v. Clark,

499 F.2d 802 (4th Cir. 1974) ...... 17

United States v. Evans,

575 F.2d 1286 (9th Cir.), cert. denied, 439 U.S.

BE, CHITBY woriiins Ql. Abdcccccccsecosen 13

vi

Table of Authorities Continued

CasEs: PAGE

United States v. Grant,

549 F.2d 942 (4th Cir.), cert. denied, 432 US.

Ee Pe a AAT 11,13

United States v. Hauck,

586 F.2d 1296 (8th Cir. 1978), cert. denied, 441

SU I ii lk 11,12,19

United States v. Henry,

U.S. (1980) No. 79-121 ................. 24

United States v. Jackson,

436 F.2d 39 (9th Cir. 1970), cert. denied, 403

TENE aR a nD ee 16

United States v. Massey,

550 F.2d 300 (5th Cir. 1977) w.o.ccccccccccccccccescccsesceees 16

United States v. Pheaster,

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

nom. Inciso v. United States, 429 U.S. 1099

gs SMSC TEEAEN AS RUSS hae 13

United States v. Priest,

409 F.2d 491 (5th Cir. 1969) ........c.cccccccccccccccccccecees. 17

United States v. Rodriguez-Gastelum,

569 F.2d 482 (9th Cir.) (en banc) cert. denied,

II MO sci candice cis sukececdeetleceees sad uh 11,12,20

United States v. Springer,

460 F.2d 1344 (7th Cir.), cert. denied, 409 U.S.

aris SUSE SPER te 25,27

United States v. Wilson,

571 F.2d 455 (9th Cir. 1978) ............... eduintpatabcuianini 13

United States v. Womack,

542 F.2d 1047 (9th Cir. 1977) .oo..c.ccccccccccccccccsescecsoee 16

White v. Finkbeiner,

G11 F.2d 186 (7th Cir. 1979) .......ccccccccccccsssssssceseseees 11,16

vii

Table of Authorities Continued

CONSTITUTIONAL PROVISIONS: PAGE

United States Constitution,

Fifth Amendment ...............s.s+0sse00 10,13,17,18

United States Constitution,

Sixth Amendment..... <hviinnlleabiinntinadpaieeaisibiiagatiae 10,13,24,25

United States Constitution,

Fourteenth Amendment .............ccccccssscssesseseseeees 10,24,26

OTHER AUTHORITIES:

Kamisar, Brewer v. Williams, Massiah and Mi-

randa: What is “Interrogation”? When Does It

Matter? 67 GEO. Tu. 1 (1978) ..........ccceccocccessscsseseess 21,22

In the

Supreme Court of the United States

October Term, 1979

No. 79-8269

ROBERT EDWARDS, Petitioner,

Vv.

THE STATE OF ARIZONA, Respondent.

On Writ of Certiorari to the Arizona Supreme Court

BRIEF FOR RESPONDENT

OPINION IN THE LOWER COURT

The opinion of the Arizona Supreme Court is reported as

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

STATEMENT OF THE CASE

On October 9, 1974, at approximately 1:00 A.M., the La

Conga Bar in Tucson was robbed at gunpoint by two indi-

viduals. While one of the robbers was forcing the owner,

Mr. Carlos Mungia, to open the safe, Mr. Mungia died of a

heart attack. Mr. Mungia was 70 years old at the time. Mrs.

Nellie Esparza, the barmaid and the only other individual

in the bar at the time, was unable to identify the two rob-

bers. Sergeant Larry Bunting, who was head of the

2

homicide detail, assigned detective Victor Marmion as the

officer in charge. The police investigated various leads, but

were unable to make any progress in determining the iden-

tities of those responsible for the murder.

In July or August of 1975, the Tucson police arrested

Cleveland (Kevin) Reed for grand theft, grand theft auto,

and arson. (S.A. at 2, 61.)' At that time, Reed was also

wanted in Kansas for armed robbery, possession of a fire-

arm, and failure to appear. (S.A. at 4, 61.) In September

1975, Mr. Reed’s attorney contacted the Pima County At-

torney’s Office, and said that Mr. Reed had information

concerning the La Conga Bar murder. A deal was worked

out whereby Mr. Reed (1) would tell all he knew about the

La Conga Bar murder in exchange for immunity from any

charges in connection with that crime, (2) ‘vould plead

guilty to grand theft and the other two charges would be

dropped, and (3) the sentence he received would run con-

current with the sentence he received for the Kansas

charges. (S.A. at 3, 62-63.) Mr. Reed ultimately was sen-

tenced to 3 to 4 years for the grand theft in Arizona, and to

5 to 99 years for armed robbery, 1 to 10 years for possession

of a firearm, and 1 to 5 years for failure to appear, all in

Kansas. (S.A. at 4, 61.)

On September 17, 1975, Mr. Reed gave his statement to

the Tucson police. (S.A. at 3, 22.) He said that he and Peti-

tioner Robert Edwards? robbed the La Conga Bar while

Manuel Chiquete Soto, Willie Williams, and Albert Wil-

liams were outside acting as lookouts. The police then

arranged to have Mr. Reed released so that he could go

back on the street and try to develop more information

about the La Conga Bar murder and some other nonrelated

crimes. (S.A. at 22-23, 63.) Instead, Mr. Reed left for Kan-

sas, where he was arrested. (S.A. at 63.) Mr. Reed was

ultimately returned to Arizona.

1 JA. at refers to the Joint Appendix, and S.A. at

Appendix.

refers to the Supplemental

* Although Robert Edwards is petitioner’s real name, all of the code-

fendants and all of the police officers knew him as Willie Barefield.

3

By January 1976, the police decided that they had

enough evidence to proceed against the others involved. On

January 19, 1976, at approximately 1:00 p.m., Detective

Victor Marmion and Detective Charles Milne arrested

Manny Soto. Manny Soto gave them a statement wherein

he implicated Edwards. At approximately 4:00 p.m., Ser-

geant Larry Bunting, Detective Steve Bunting,’ and

Officer Allen arrested Edwards. (J.A. at 31.) That evening,

Edwards gave the police a statement wherein he denied any

involvement in the crime. The next morning, he gave an-

other statement wherein he admitted his part in the crime.

It is the admission of this second statement that is before

this Court.

In January 1977, Edwards asked that he be allowed to

conduct his own defense. The trial court conducted a hear-

ing on this motion, and ultimately concluded that Edwards

was competent to do so. It also provided Edwards with ad-

visory counsel.

On March 4 and 7, 1977, the trial court held a hearing on

the motion to suppress. This hearing was handled by Ed-

wards’ advisory counsel, Mr. Carmine A. Brogna. After the

hearing, the trial court at first granted the motion to sup-

press, and then 3 days later reversed itself and ruled that

the confession was admissible. On March 17, 1977, the first

trial began, with Edwards representing himself. This re-

sulted in a mistrial because the jurors were unable to reach

a verdict. The second trial began April 18, 1977, again with

Edwards representing himself. This resulted in a verdict of

guilty of murder, burglary, and armed robbery. Edwards

was originally sentenced to death for the murder charge,

and to a term of 25 to 50 years for the burglary and armed

* Sergeant Larry Bunting and Detective Steve Bunting are not re-

lated.

* The reasons for these delays are not presently before this Court.

4

robbery charges.’ The matter was remanded for resen-

tencing pursuant to State v. Watson,’ and Edwards was

resentenced to life for the murder.

The facts surrounding the confession :ome from three

sources: (1) the motion to suppress, where Edwards, Ser-

geant Larry Bunting, Detective Victor Marmion, Detective

Charles Milne, and Detective Paul Hallums testified; (2)

the first trial, where Sergeant Bunting, Detective Marmion,

and Detective Milne testified; and (3) the second trial,

where Sergeant Bunting, Detective Marmion, and Detective

Milne testified.’ Edwards did not testify at either trial.

According to the officers, Edwards was arrested on

January 19, 1976, at 4:00 p.m., by Sergeant Bunting, Detec-

tive Bunting, and Officer Allen. (J.A. at 31, 101, 146; S.A. at

6, 8.) Once Edwards was in the police car, Officer Allen

read him his Miranda rights. (J.A. at 70.) The officers took

him to the City of Tucson Police Station, where Sergeant

Bunting interviewed him, and Detective Bunting witnessed

the interview. (J.A. at 32.) Detective Bunting read Edwards

his Miranda rights. (J.A. at 33, 102, 111; S.A. at 7.) Ed-

wards said that he understood them, that he would waive

them, and that he would answer questions. (J.A. at 33, 104;

S.A. at 7.) Detective Bunting then showed Edwards a copy

of the statement Cleveland Reed had given, and told Ed-

wards that Manny Soto had also given a statement. (J.A. at

38, 104, 111, 147; S.A. at 15.) Edwards said that he too

would give a statement, and gave what he described in his

own words as an alibi statement. (J.A. at 34, 35, 107, 110,

* By then, Willie Williams had defended himself, and was acquitted

of murder, but found guilty of burglary and armed robbery. This convic-

tion was affirmed in a memorandum decision. Manny Soto was convicted

of murder, armed robbery, and armed burglary. This conviction was af-

firmed in an opinion, State v. Soto, 117 Ariz. 345, 572 P.2d 1183 (1977).

Albert Williams was found incompetent, and was never tried.

* 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924

(1979).

" The testimony from the motion to suppress appears in the Joint

Appendix at pages 30-90. The testimony from the two trials appears in

the Joint Appendix at pages 95-155 and in the Supplemental Appendix.

5

146; S.A. at 8, 12.) Prior to this statement, Sergeant Bunt-

ing again advised Edwards of his Miranda rights. (J.A. at

45, 104; S.A. at 18, 20.) This statement was recorded on

tape. (J.A. at 33; S.A. at 12.) r

Shortly after Edwards gave this statement, Detective

Paul Hallums saw Edwards in the police station. (J.A. at 34,

61.) Detective Hallums was assigned to the armed robbery

detail, and wanted to talk to Edwards about an unrelated

armed robbery. (J.A. at 61-62.) This conversation took

place in the same room Sergeant Bunting had been using,

and lasted about 5 to 10 minutes. (J.A. at 36, 62-63.) After

he was finished, Detective Hallums asked Edwards if he

would like to speak to Sergeant Bunting again, and Ed-

wards said he would. (J.A. at 35, 62.) Detective Hallums

then told Sergeant Bunting that Edwards wanted to talk

further. (J.A. at 35.)

Edwards then told Sergeant Bunting that he had been

around a while and knew how things worked, and wanted to

make a deal. (J.A. at 36, 39, 40, 107, 111; S.A. at 9.) Ed-

wards’ proposal was that, if Sergeant Bunting would give

him a deal, he would make a statement, but he would not

indicate what the statement was about. (J.A. at 37, 112,

149; S.A. at 19.) Sergeant Bunting told Edwards that he

could not give Edwards a deal, all he would do is give Ed-

wards a chance to give his side of the story. (J.A. at 37, 39,

40; S.A. at 9.) The two of them went back and forth for

about an hour discussing the request for a deal. (J.A. at 39,

40; S.A. at 10.) At some point, Detective Bunting informed

Edwards that only the County Attorney could make a deal.

(J.A. at 107.) Edwards then asked to speak to the County

Attorney. (J.A. at 39, 44.) Sergeant Bunting contacted Dep-

uty County Attorney Randy Stevens. (J.A. at 37-38, 107;

S.A. at 10.) Edwards told Randy Stevens that he wanted a

deal to give his side of the story. (J.A. at 107-08.) Edwards

and Stevens were unable to reach an agreement. (S.A. at 9.)

Ultimately, Edwards informed Sergeant Bunting that he

would wait for an attorney before making a deal. (J.A. at

37, 38, 39, 41, 43, 151, 153; S.A. at 9, 20.) At no time did

6

Edwards say to Sergeant Bunting or any of the other offi-

cers that he would not talk to them until he spoke to an

attorney. (J.A. at 39, 43-46, 148, 152, 153; S.A. at 18. 19-20.)

At about 7:00 p.m., Sergeant Bunting had Edwards taken to

the Pima County Jail.* (J.A. at 40, 90, 112; S.A. at 17-18.)

The next morning, Detective Marmion, the lead detective

in the case, decided to go over to the Pima County Jail and

talk to Edwards. (J.A. at 51, 134; S.A. at 24, 31, 34, 41.) He

knew generally that Edwards had given an alibi statement,

but he did not know the details of it. (J.A. at 51, 130; S.A.

at 31.) Detective Marmion had with him his file of the case,

including Manny Soto’s taped confession, which Edwards

had not yet heard. (J.A. at 56; S.A. at 34-35.) Detective

Milne, who had been in the homicide division less than 5

months, had been assigned by Sergeant Bunting to accom-

pany Detective Marmion as part of Detective Milne’s

educational process. (J.A. at 64-65, 140-41.) At approxi-

mately 9:15 a.m., Detective Marmion had Edwards brought

to one of the interview rooms, which is where attorneys con-

fer with their clients. (J.A. at 57, 66, 123.) Upon Edwards

arrival, Detective Marmion identified himself and advised

Edwards that he was working on the La Conga Bar case.

(J.A. at 57.) He read Edwards his Miranda warnings, and

asked if Edwards would like to talk to them. (J.A. at 57,

123, 141; S.A. at 24, 34.) Edwards said that he would, but

first asked to hear Manny Soto’s statement. (J.A. at 55, 57,

123, 134, 141; S.A. at 25, 34.) Detective Marmion then

played about 9 to 12 minutes of Manny Soto’s statement.

(J.A. at 58, 123, 134; S.A. at 25.) Edwards then said that he

would make an oral statement, but he did not want it

taped. (J.A. at 53, 55, 58, 67, 123, 142; S.A. at 25, 37, 46, 53.)

Detective Marmion carefully explained to Edwards that it

did not matter whether it was oral or on tape, the two offi-

cers could testify in court about any statement that

Edwards made, (J.A. at 53, 54, 58, 59, 67-68, 123-24; S.A. at

* Sergeant Bunting testified that he did not instruct anyone to put

Edwards in solitary. (S.A. at 18.)

7

25, 37, 47, 52, 53.) Edwards said that he understood this,

but he still did not want the statement on tape. (J.A. at 68-

69, 142; S.A. at 25, 37, 47, 53.) Edwards then gave an oral

statement wherein he admitted his involvement in the La

Conga Bar murder. (J.A. at 124-25, 142-43; S.A. at 25, 27-

28.)

After Edwards made this statement, an officer informed

the detectives that someone was calling to advise them that

Willie Williams had been arrested. (J.A. at 128; S.A. at 36.)

Detective Milne left the room to take the telephone call.

(S.A. at 39, 53.) When he returned, Edwards asked the de-

tectives to return after they had talked to Willie Williams,

and tell him what Williams had to say. (J.A. at 128; S.A. at

40, 43.) The detectives then left. When they got back to

their car, they dictated what they remembered into a tape

recorder. (J.A. at 58-59, 126, 136; S.A. at 35.) This tape was

later transcribed as a supplemental report, and the tape

erased.’ (S.A. at 136.)

Edwards testified twice during the hearing on the motion

to suppress, and gave testimony that was for the most part

inconsistent with that given by the officers. The first time

that he testified was on Friday, March 4, 1977. He admit-

ted giving a taped statement to Sergeant Bunting on

January 19, 1976. (J.A. at 48.) He admitted that Detective

Marmion tried to get another statement from him the next

day. (J.A. at 48.) He said that he did not ask Detective

Marmion to come to see him, but he did not say anything

about refusing to talk to anyone. (J.A. at 48.) At this point,

Edwards said that he did not give a statement to Detective

Marmion. (J.A. at 50.)

* Sergeant Bunting testified that the tapes used to produce the po-

lice reports are used over and over, so it is standard practice to erase a

tape once it has been transcribed and checked by the officer who made

the report.

8

The following Monday, Edwards again testified, but this

time he gave a much more detailed version of what hap-

pened, Edwards admitted that he had been read _ his

Miranda rights, and stated that he understood what they

meant. (J.A. at 71.) He admitted that he gave the taped

statement to Sergeant Bunting. (J.A. at 71-72.) Edwards

said that he requested to speak to an attorney, so Sergeant

Bunting called an attorney and gave the telephone to Ed-

wards. (J.A. at 73.) Edwards said that he asked the attorney

who he was, and, when he found out that it was a “district

attorney,” hung up after about 38 or 4. sec-

onds."" (J.A. at 73, 82.) Edwards said that Sergeant Bunt-

ing offered him a deal, but he said that he refused to talk

about a deal before first talking to his attorney. (J.A. at 73-

74.) Edwards said that the officers realized that he would

not confess, so they had him taken to the jail. (J.A. at 75-

76.) He said that one of the officers who had been interro-

gating him said, “Put him in solitary,” but he was unable to

remember which officer it was.'? (J.A. at 76.) He said that

he was placed in solitary with a “brother” named Al J.

Carter.'"* (J.A. at 77.)

Edwards said that the next morning a detention officer

came to get him, but he refused to come out of his cell and

talk to anyone."* (J.A. at 77, 80.) Edwards said that, upon

seeing Detective Marmion and Detective Milne, he told

them that he did not want to talk to anyone. (J.A. at 78.)

He did admit, however, that he said that he wanted to hear

’* Prosecuting attorneys in Arizona are County Attorneys, although

many people refer to them as district attorneys.

"Randy Stevens was not called as a witness at either the suppres-

sion hearings or at the trials.

* Sergeant Bunting, Detective Murmion, and Detective Milne all tes-

tified that they did not know where Edwards was kept in the Pima

County Jail. (J.A. at 135; S.A. at 18, 31, 51.)

* Edwards also refered to the officer who arrested him as a

“brother.” (J.A. at 81.) It appears therefore that he uses this term to de-

scribe fellow blacks, and not necessarily as a term of friendship.

'** The state did not put on any of the detention officers, so this par-

ticular point was not contradicted by any of the state’s evidence.

9

Manny Soto’s tape. (J.A. at 78.) He then said that Detec-

tive Marmion offered to talk to the “D.A.” and give him a

break if he gave a statement. (J.A. at 79.) He said that he

told Detective Marmion that he did not want anything used

against him in court, but that he did not understand Detec-

tive Marmion’s explanation. (J.A. at 79, 80.) He then

admitted that he did give a statement to Detective Mar-

mion. (J.A. at 79.) When asked why he did not admit

making this statement when testifying the previous Friday,

he said that he was “confused.” (J.A. at 80, 83.)

Following the hearing, the trial court made a detailed

explanation of its ruling on the motion to suppress. The

trial court stated that it found the statements made by

Edwards to be voluntary. (J.A. at 91, 92.) It stated that it

found the testimony of the officers to be credible and that

Edwards’ was not. (J.A. at 91.) The trial court found that

Detective Marmion went to the jail on January 20, 1976, on

his own. (J.A. at 92.) The statement was admitted at trial,

and Edwards was found guilty.

SUMMARY OF ARGUMENT

The resolution of this case depeads on several important

facts. On the day petitioner was arrested, he was advised of

his rights on three separate occasions, and he said that he

understood them. After he made an alibi statement, he told

the officers that he had been around and knew how the sys-

tem worked, and he wanted them to make him a deal.

When the police officers would not make him a deal, peti-

tioner said he would wait until he got an attorney before he

made a deal. The next morning, two different officers went

to see petitioner. They again advised petitioner of his

rights, and he acknowledged that he understood his rights

and said that he would talk to the officers. He then asked

to hear the taped confession of one of his codefendants.

After hearing this confession, petitioner made his incrimi-

nating statement.

10

In Miranda v. Arizona; 384 U.S. 436 (1966), this Court

established that a suspect has a right to an attorney under

the Fifth and Sixth Amendments once he is arrested. This

Court did not, however, establish a rule that, once a suspect

has asked for an attorney, he may not change his mind and

make a statement prior to seeing an attorney. All of the

Circuit Courts that have addressed this i:sue have rejected

this per se rule. The rule that they do adopt is that a sus-

pect may change his mind and waive his right to an

attorney as long as there is an intelligent, knowing, and

voluntary waiver.

In Brewer v. Williams, 430 U.S. 387 (1977), this Court

reiterated that a person has the right to counsel under the

Sixth and Fourteenth Amendments once he has been for-

mally charged with a crime, but this Court also indicated

that this right may be waived without notice to counsel.

The Circuit Courts that have addressed this issue have

agreed that such a waiver is possible, again as long as it is

an intelligent, knowing, and voluntary waiver.

The record in this case shows a clear waiver of these

rights. Petitioner knew his rights, and never said to the po-

lice that he would not talk to them until he spoke to an

attorney. Prior to making the incriminating statement, peti-

tioner was again advised of his rights, and made an

intelligent, knowing, and voluntary waiver of them.

ARGUMENT

I. Once a Suspect Has Asserted His Right to an

| Attorney, He May Later Waive That Right

Prior to Seeing an Attorney.

Petitioner contends that, once a suspect has been advised

of his rights under Miranda v. Arizona,” and has re-

quested an attorney, he may never waive that right until he

consults with an attorney, and any statement made prior to

consultation with an attorney is,per se inadmissible. The

Circuits Courts that have addressed this issue have held

© 984 U.S. 438 (1966).

11

that there is no such per se rule. White v. Finkbeiner, 611

F.2d 186 (7th Cir. 1979); Nash v. Estelle, 597 F.2d 513 (5th

Cir.) (en banc), cert denied, 444 U.S. 981 (1979); United

States v. Hauck, 586 F.2d 1296 (8th Cir. 1978), cert. de-

nied, 441 U.S. 947 (1979); 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); Cobbs v. Rob-

inson, 528 F.2d 1331 (2d Cir. 1975), cert. denied, 424 U.S.

947 (1976).'"° For the following reasons, respondent asks

this Court to reject the per se rule, and instead adopt a rule

that a suspect may later waive his right to an attorney, even

though he has previously requested one, provided the sub-

sequent waiver is shown to be intelligently, knowingly, and

voluntarily made.

In White v. Finkbeiner, supra, White was arrested on an

unrelated charge, and read his Miranda rights. When the

officer attempted to question White, he said, “I’d rather see

an attorney.” The officer thereupon stopped any question-

ing. Over the next 2 days, White was questioned by several

officers other than the one whom he first advised of his de-

sire for an attorney. Before each of these subsequent

interrogations and admissions, the officers advised White of

his Miranda rights, and White signed waiver forms. White

challenged these later confessions as a violation of his right

to an attorney as provided in Miranda.

The court first held that White’s statement “I’d rather

see an attorney” was a request sufficient to invoke his right

to an attorney under Miranda. It then addressed the ques-

tion of a subsequent waiver. It began by looking at the

purpose behind Miranda and Michigan v. Mosley,’ and

determined that a per se rule would be going too far toward

protecting a suspect’s rights. The per se rule would im-

‘© The Sixth Circuit, in Maglio v. Jago, 580 F.2d 202 (6th Cir. 1978),

found that there had been a refusal to stop questioning after a request

for an attorney, so it did not have to face the question of a per se rule

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

" 423 U.S. 96 (1975).

12

prison a person in his own privilege. It would lose touch

with the purpose and policy behind Miranda—a knowing

and free exercise of constitutional rights. Finally, it would

lead to a mechanical approach to the resolution of the issue.

The court chose instead to adopt a case-by-case approach

wherein it would look at the particular facts of the case to

see if there was a knowing and voluntary waiver.'* This

determination would be pursuant to the traditional consid-

erations set forth in Johnson v. Zerbst."®

In United States v. Hauck, supra, an F.B.I. agent inter-

viewed Hauck while he was incarcerated in a part of the

South Dakota prison system. Hauck was suspected of send-

ing threatening letters to a state judge. The agent advised

Hauck of his Miranda rights, and later asked Hauck for a

handwriting sample. Hauck asked for an attorney, and then

asked when he would get one. After the agent explained the

procedure for obtaining an attorney, Hauck said that re-

taining an attorney seemed like too much trouble, and

proceeded with the interview.

Hauck challenged his confession as a violation of Miran-

da, and pointed to the language in Miranda that says that

all interrogation must stop once there has been a request

for an attorney. 384 U.S. at 474. The court acknowledged

this, but noted the language following this that says, if the

interrogation continues without the presence of an attorney,

the state must carry the heavy burden of showing that

there was a knowing and intelligent waiver of the right to

remain silent and the right to an attorney. 384 U.S. at 475.

The court concluded that Hauck affirmatively withdrew his

request for an attorney.

In United States v. Rodriguez-Gastelum, supra, customs

officers stopped Rodriguez-Gastelum, advised him of his

Miranda rights, questioned him, and then arrested him.

After being taken to the Drug Enforcement Administration

Office, he was again questioned. The officer first read him

'* Accord, Kennedy v. Fairman, 618 F.2d 1242 (7th Cir. 1980).

" 304 U.S. 458 (1938).

13

his Miranda rights, and asked him if he would talk. He

answered, “Okay, okay, but with an attorney.” The officer

said, “Do you want to talk to me now without an attorney?”

Rodriguez-Gastelum said, ‘That’s fine.” Rodriguez-

Gastelum contended that his request for an attorney was

disregarded, and the continued questioning deprived him of

his Sixth Amendment right to assistance of counsel.

For purposes of the appeal, the court assumed that the

response, “Okay, okay, but with an attorney” was sufficient

to invoke the protection of the Fifth Amendment and Sixth

Amendment under Escobedo v. Illinois,” and Miranda. It

then rejected the per se rule, and instead adopted a case-

by-case approach, which would allow district courts to ana-

lyze the facts in each particular case.’ In rejecting the per

se rule, the court relied upon the following reasoning: (1)

the per se rule is contrary to the whole spirit of Mosley: (2)

tpe per se rule would “imprison a man in his_privil-

eges”; and (3) the per se rule would force courts to lose

touch with the whole purpose of Miranda, that is, whether

there was an intelligent, knowing, and voluntary waiver.

Based upon this reasoning, the court concluded that the

answer “That’s fine” was sufficient to constitute a waiver of

the prior request for assistance of counsel.

In United States v. Grant, supra, police arrested Grant

in connection with a local bank robbery. An F.B.I. agent

advised Grant of his Miranda rights; Grant signed the

waiver and gave a statement denying any involvement in

the robbery. Some time later, the agent learned that Grant

was charged with robbing a Richmond bank. The agent

advised Grant that he was under arrest for the Richmond

robbery, and again advised him of his Miranda rights.

Grant asked for an attorney, so the agents did not question

*” 378 U.S. 478 (1964).

*" Accord, United States v. Evans, 575 F.2d 1286 (9th Cir.), cert.

denied, 439 U.S. 854 (1978); United States v. Wilson, 571 F.2d 455 (9th

Cir. 1978); United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert.

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

* Adams v. United States ex rel. McCann, 317 U.S. 269, 280 (1942).

14

him further. Grant then asked about the procedure to get

an attorney, and the agents answered these questions. As

the agents were about to leave, Grant suddenly said, “It’s

all true.” The agents warned him again of his rights, and

reminded him that he had requested an attorney. Grant

said that he knew his rights, and that he wanted to make a

statement. Grant claimed that his statements were taken in

violation of his right to counsel under Miranda.

The court rejected this claim, and held that Miranda did

not erect a per se bar to all conversation after a suspect has

asked for counsel. The court did place considerable reliance

on the fact that Grant initiated the discussion, and seemed

to indicate that it would aot hold admissible a statement

made at the instigation of the officers.

In Cobbs v. Robinson, supra, police arrested Cobbs and

advised him of his Miranda rights both at the time of arrest

and again at the police station. The officers said that they

had enough information against him, so they did not need a

statement. One of the officers did reveal some of the facts

known to them, and Cobbs then said that he wanted to talk

to an attorney before he told them what had actually oc-

curred. Instead of calling an attorney, however, Cobbs

called his grandmother. After he spoke to her, he gave a

confession to the police. Cobbs claimed that this confession

was admitted in violation of his rights to an attorney under

Miranda. The court rejected this claim. It held that Cobbs

was fully and timely advised of his rights, that he was

aware of them and understood them, and that he acted

fully and voluntarily, and knowingly and intelligently

waived his right to remain silent.

The cases cited by petitioner do not lend support for his

position. They address the situation where a suspect re-

quests an attorney, but the police continue questioning the

suspect in spite of the request. In Thompson ov.

Wainuwright,* the police arrested Thompson and advised

him of his Miranda rights. Thompson said that he would

* 601 F.2d 768 (5th Cir. 1979).

15

make a statement, but first he wanted to talk to an attor-

ney. The officer told Thompson that the attorney could not

relate Thompson’s ‘story to the police, and said that the

attorney would probably tell Thompson to say nothing.

Thompson then proceeded to give the police a statement.

The court held the confession inadmissible. It noted that

the police did not honor Thompson’s request for an attor-

ney (and therefore his request to remain silent), and

instead by presumption and persuasion got Thompson to

incriminate himself. The court held that Thompson was

misled into abandoning his request for counsel. This case

therefore does not say that there could not be a subsequent

knowing and intelligent waiver of counsel; it merely says in

that case there was none.

In Nash v. Estelle,** the court held that, once a suspect

has made an unequivocal request for counsel, all interroga-

tion must stop. If the suspect makes an equivocal request

for counsel, further questioning is permitted only to the

extent necessary to determine exactly what the suspect

meant by his request. The dissent noted that the rule in the

Fifth Circuit did not prohibit a suspect from later with-

drawing his previous request for an attorney:

Our version of the per se rule falls between two ex-

tremes sometimes urged. We will not permit inquiry as

to waiver unless there has been a temporal break in

the custodial interrogation after the request for coun-

sel and before the purported waiver. Contra Wilson v.

Henderson (inquiry as to waiver permitted in all cir-

cumstances). On the other hand, where there has been

such a temporal break, we will inquire into whether

there has been an effective waiver even if the pur-

ported waiver comes before the suspect has actually

consulted with an attorney,

* 597 F.2d 513 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 (1979).

16

597 F.2d at 520 n.2 (emphasis added) (Godbold, J., dissent-

ing).* This case therefor does not create a per se rule.

Indeed, this case has been cited as authority for rejecting

the per se rule proposed by petitioner. White v. Finkbeiner,

supra, 611 F.2d at 192.

In United States v. Massey,” Massey told the agents on

three different occasions that he did not want to talk about

the crime. One of the agents told Massey that he did not

want to discuss the crime, he only wanted to know about

Massey’s itinerary over the last 2 months. Massey signed a

waiver, and gave the agent this information. This informa-

tion was used to convict Massey. The court held that the

agents had tricked Massey into waiving his right to an at-

torney. It therefore did not hold that a suspect cannot

make a knowing and voluntary withdrawal of a previous

request for counsel, it merely held in that case this did not

happen.

In United States v. Womack,” police arrested Womack

and advised him of his Miranda rights. He then requested

an attorney. When Womack was being booked, he again

asked for an attorney, and was told that “it would be taken

care of.” The next morning, an officer came to Womack’s

cell and again read him his Miranda rights. Womack did

not renew his request for counsel because he was “scared”

and because “every time I asked for one I never got one, so

I gave up on the fact.” The court held that “an accused

may waive a previously-invoked right to counsel.” 542 F.2d

at 1050.% The court held that the waiver Womack made

was not a knowing, intelligent, and voluntary waiver be-

cause Womack was under the impression that he would not

be able to get an attorney.

* Accord, Blassingame v. Estelle, 604 F.2d 893 (5th Cir. 1979); see

United States v. Brown, 569 F.2d 236 (5th Cir. 1978) (en banc).

* 550 F.2d 300 (5th Cir. 1977).

* 642 F.2d 1047 (9th Cir. 1977).

* Accord, United States v. Jackson, 436 F.2d 39 (9th Cir. 1970), cert.

denied, 403 U.S. 906 (1971).

17

In United States v. Clark,” F.B.I. agents arrested Clark

pursuant to a warrant, advised him that he was a suspect in

a bank robbery, and advised him of his Miranda rights.

Clark refused to make a statement. At 4:30 p.m., two agents

confronted Clark, again advised him of his Miranda rights,

and asked him if they could interview him. Clark said, “I

had better talk to a lawyer.” At 8:00 p.m., the same agents

went back to fingerprint Clark. Again they tried to get

Clark to talk, but he again said that they must have made a

mistake and arrested the wrong person. The agents then

told Clark that he should talk to them if he had nothing to

hide, and also said that his friend English had confessed

and implicated him. Clark then refused to sign a waiver,

but did agree verbally to subrait to questioning without an

attorney present. The court recognized that, ‘under given

circumstances, an accused may later waive a right which he

previously asserted.” 499 F.2d at 807. It held that the fact

that an accused has previously asserted his right to an at-

torney weighs heavily against a finding of a later waiver. It

also held that initiation of an interview by the agents is a

strong indication of an involuntary waiver. It then held that

there had not been a voluntary waiver of Clark’s Fifth

Amendment right.

In both United States v. Blair, and Unitea States v.

Priest,’ the suspects were advised of their Miranda rights;

they then asked for attorneys. In both cases, the officers

ignored the request for an attorney, and continued asking

questions. While these cases show a clear violation of the

_tights delineated in Miranda, they do not address the issue

before this Court, that is, whether there can be a subse-

quent waiver of the right to an attorney once the suspect

has requested one.

* 499 F.2d 802 (4th Cir. 1974).

* 470 F.2d 331 (5th Cir. 1972), cert. denied sub nom. Crews v.

United States, 411 U.S. 908 (1973).

* 409 F.2d 491 (5th Cir. 1969).

18

As did the question in Mosley, resolution of this issue

turns on the interpretation of the language contained in the

Miranda opinion:

Once warnings have been given, the subsequent pro-

cedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must

cease. At this point he has shown that he intends to

exercise his Fifth Amendment privilege; any statement

taken after the person invokes his privilege cannot be

other than the product of compulsion, subtle or other-

wise. Without the right to cut off questioning, the

setting of in-custody ir..arrogation operates on the in-

dividual to overcome free choice in producing a

statement after the privilege has been once invoked. If

the individual states that he wants an attorney, the

interrogation must cease until an attorney is present.

At that time, the individual must have an opportunity

to confer with the attorney and to have him present

during any subsequent questioning. If the individual

cannot obtain an attorney and he indicates that he

wants one before speaking to police, they must respect

his decision to remain silent.

If the interrogation continues without the presence

of an attorney and a statement is taken, a heavy bur-

den rests on the government to demonstrate that the

defendant knowingly and intelligently waived his privi-

lege against self-incrimination and his right to retained

or appointed counsel.

384 U.S. at 473-75 (footnote omitted). In Mosley, this Court

noted that, although the passage states that “the interroga-

tion must cease” when a person in custody indicates that

“he wishes to remain silent,” it does not state under what

circumstances, if any, a resumption of questioning is per-

missible. 423 U.S. at 101. This Court then held that the

passage did not create a “per se proscription of indefinite

duration upon any further questioning by any police officer

on any subject ....” 423 U.S. at 102-03. The same can be

19

said about the language that says that “{i]f the individual

states that he wants an attorney, the interrogation must

cease until an attorney is present.” 384 U.S. at 474. The

language does say that the interrogation may resume once

an attorney is present, but it does not say that the interro-

gation may not resume under any other circumstances.

Moreover, the following passage seems to negate the inter-

pretation that interrogation may never be resumed unless

an attorney is present:

If the interrogation continues without the presence

of an attorney and a statement is taken, a heavy bur-

den rests on the government to demonstrate that the

defendant knowingly and intelligently waived his priv-

lege. against self-incrimination and his right to

retained or appointed counsel.

384 U.S. at 475 (emphasis added). Because this language

appears one paragraph after the paragraph discussing what

must happen once a suspect has either requested to remain

silent or requested an attorney, it seems logical that the

phrase “[i]f the interrogation continues” refers to the inter-

rogation continuing after either a request to remain silent

or a request for an attorney. This is the analysis that the

Eighth Circuit followed in rejecting the per se rule.*

Allowing a subsequent waiver in both cases is both logical

and consistent. If a suspect indicates he wishes to remain

silent, the police cannot interrogate him until he changes

his mind and decides that he does not want to remain si-

lent. If a suspect indicates he wants an attorney, the police

cannot interrogate him until he changes his mind and de-

cides that he does not want an attorney. In both cases the

analysis would be the same: was the subsequent waiver in-

telligently, knowingly, and voluntarily made. To make this

determination, the courts would look at the usual factors,

such as intelligence, experience, and adequacy of explana-

tion of the right. It would also consider additional factors,

such as amount of time between the assertion of the right

* United States v. Hauck, supra, 586 F.2d at 1298.

‘

-

20

and the subsegent waiver and whether the police or the

suspect initiated the subsequent contact, in order to deter-

mine whether the change was voluntarily made, or was a

product of overbearing on the part of the police. This ap-

proach would thus be in keeping with the recent cases

of Fare v. Michael C.,** and North Carolina v.

Butler,“ which both held that the question whether the

accused waived his rights is not one of form, but rather

whether the accused in fact knowingly and voluntarily

waived the rights delineated in Miranda."

Petitioner would instead have this Court adopt an inflex-

ible per se rule that would exclude all confessions until an

attorney is consulted. This rule would be directly contrary

to the language of Miranda, which provides that volun-

teered statements are not barred by the holding of that

case.” Petitioner supports his argument with the claim

that a suspect who asks for an attorney has made the deter-

mination that he is not capable of dealing with the police

and needs an attorney to deal with them. While this may be

true in some cases, it may not be true in all cases, which is a

major defect in any per se rule. The effect would be to say

that a suspect who is intelligent enough to realize that he

needs an attorney is suddenly no longer intelligent enough

to reconsider his position.

Petitioner also argues that, if this Court chooses not to

adopt an absolute per se rule, it should at least adopt a rule

that a subsequent waiver of the previously invoked right is

not permissible if the police initiated the contact that led to

the subsequent waiver. As noted by the court in United

* 442 U.S. 707 (1979).

* 441 U.S. 369 (1979).

* 442 US. at 724; 441 U.S. at 373.

* 384 US. at 478. The Fifth Circuit, in United States v. Carpenter,

611 F.2d 113 (5th Cir. 1980), held admissible a confession that Carpenter

voluntarily made after he had asked for an attorney, but before he had

seen one.

21

States v. Rodriguez-Gastelum, supra:

Such a reading, in practical effect and under a differ-

ent guise, reincorporates the per se rule that a majority

of the court has today rejected.

569 F.2d at 488. Under the totality of the circumstances

approach that respondent advocates, whether the contact

was initiated by the police or by the suspect would be only

one of the circumstances the trial court would have to con-

sider. While, in many circumstances, initiation of the

contact by the police might be a strong indication that the

subsequent waiver was involuntary, it cannot be said that,

in all circumstances, the subsequent waiver would be invol-

untary. The test proposed by petitioner would, however,

have this effect—it would amount to a judicial determina-

tion that any subsequent waiver that followed police-

initiated contact was involuntary as a matter of law, regard-

less of what the facts were. Respondent urges this Court to

reject this approach, and instead adopt one that would al-

low the trial court to look at the facts, and from the facts

determine if the waiver was in fact voluntary.

Allowing the police to initiate contact after a request for

counsel raises another issue—the scope of permissible po-

lice conduct prior to any subsequent waiver. Under the rule

proposed by respondent, once a suspect has asked for an

attorney, he may not be interrogated until he either gets an

attorney or changes his mind and withdraws his request for

an attorney. Clearly, then, if the police conduct that leads

to the change of mind by the subject amounted to interro-

gation, it would not be permitted.*” In the recent case of

Rhode Island v. Innis,** this Court defined “interrogation”

as follows:

(T]he term “interrogation” under Miranda refers not

only to express questioning, but also to any words or

* See generally, Kamisar, Brewer v. Williams, Massiah, and Mi-

randa: What Is “Interrogation’? When Does It Matter? 67 Gro. L.J. 1

(1978).

% US. , 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

22

actions on the part of the police (other than those

normally attendant to arrest and custody) that the po-

lice should know are reasonably likely to elicit an

incriminating response from the suspect.

USS. at , 100 S. Ct. at 1689, 64 L. Ed. 2d at

308. In the case presently before this Court, respondent

submits that the conduct of the officers did not amount to

interrogation. At the meeting on January 20, 1976, the first

thing Detective Marmion did was introduce himself, tell

petitioner that he was working on the La Conga Bar

murder, and then say that he wanted to talk to petition-

er. This much cannot be considered as “interrogation”

because no one would believe that a suspect would sud-

denly break down at this point and confess. The next thing

that Detective Marmion did was advise petitioner of his

rights pursuant to Miranda.” Again, it is unlikely that a

suspect will confess merely because the policeman read him

his Miranda rights. The next thing that happened was that

petitioner said that he would talk to the detectives and

asked to hear Manny Soto’s taped confession.’ Assuming

for the moment that Detective Marmion has instead told

petitioner that he (Marmion) was going to play the tape, it

could be argued that this act amounted to “interrogation”

because the officer believed that this act was “reasonably

likely to elicit an incriminating response from the sus-

pect.”** Respondent submits that it goes too far to con-

sider as interrogation the mere presentation of evidence to

a suspect. First of all, the presentation of evidence to a sus-

pect is not subject to police trickery—either the police have

* JA. at 57.

© Id.

“ i.

“ Professor Kamisar would consider it as such. See Kamisar, supra

note 37, at 14-24.

23

the evidence or they do not." Second, the presentation of

evidence to a suspect is essential to an intelligent, knowing,

and voluntary exercise of his rights—until the suspect

knows what evidence the police have, he cannot make an

intelligent determination whether to talk to them." Third,

the presentation of evidence may be a procedure “normally

attendant to arrest and custody” as part of the investigative

process. Police therefore should not be precluded from pre-

senting evidence to the suspect for consideration.

Even if the presentation of evidence to a suspect were to

be equated with “interrogation,” this would not help peti-

tioner in this case. Detective Marmion first advised

petitioner of his Miranda rights.“ Petitioner then said he

would talk to the detectives, and asked to hear the

tape.“ There was therefore no interrogation without a

prior waiver by petitioner.

Based upon the above authorities and reasoning, respon-

dent urges this Court to reject a per se rule, and instead

adopt one that would look at the totality of the circum-

stances, as all of the Circuit cases cited above have done.

This rule would focus on the critical question that has con-

fronted the courts in every case since Miranda—was there

an intelligent, knowing, and voluntary waiver of a constitu-

tional right.

* By this, respondent in no way intends to condone the practice of

informing the suspect that the police have evidence that they in fact do

not have. If such a practice led to a waiver, any such waiver would clearly

not be an intelligent, knowing, and voluntary waiver.

“ In Carvey v. LeFevre, 611 F.2d 19 (2d Cir. 1979), the court held

that failure to advise Carvey of an indictment against him made the

waiver of counsel ineffective because it was not intelligent, knowing, and

voluntary.

* JA. at 57.

* Id.

24

ARGUMENT

II, Once a Person Is Charged With a Crime and

Is Therefore Entitled to an Attorney, He May

Waive That Right Prior to Seeing an Attor-

ney.

Petitioner contends that the questioning by the detec-

tives was a violation of his Sixth Amendment right to

counsel under Massiah v. United States,” Escobedo v.

Illinois,“ Brewer v. Williams,” and United States v.

Henry.” This Court indicated in Williams that this Sixth

Amendment right to counsel may be waived:

The Court of Appeals did not hold, nor do we, that

under the circumstances of this case Williams could

not, without notice to counsel, have waived his rights

under the Sixth and Fourteenth Amendments. It only

held, as do we, that he did not.

430 U.S. at 405-06 (emphasis original, footnote omitted).

[O]nce [the right to assistance of counsel] attached (it

is conceded that it had in this case), the state could

not properly interrogate Williams in the absence of

counsel unless he voluntarily and knowingly waived

the right ....

430 U.S. at 410 (Powell, J., concurring). The Second Cir-

cuit, in Carvey v. LeFevre," has specifically held that

such a right can be waived:

A person comes under the protection of the sixth

and fourteenth amendment right to counsel from the

moment judicial proceedings are initiated against him,

“ 377 U.S. 201 (1964). Petitioner notes that the rights afforded by

Massiah apply whether or not the person has an attorney. McLeod v.

Ohio, 381 U.S. 356 (1965). Respondent acknowledges that petitioner's

right to an attorney existed from the moment he was formally charged by

the state on January 19, 1976. It is respondent's position that petitioner

effectively waived this right prior to making any statement.

* 378 U.S. 478 (1964).

* 430 U.S. 387 (1977).

US. (1980) No. 79-121.

" 611 F.2d 19 (2d Cir. 1979).

25

“whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.”

Statements elicited from the accused by the police af-

ter this point without the presence or aid of a lawyer

may not be used against him at trial unless the state

can show that he knowingly, voluntarily and intelli-

gently waived his right to counsel.

611 F.2d at 21 (citations omitted). Based upon the rea-

soning in Argument I, supra, respondent asks this Court to

rule that petitioner could and did waive his Sixth Amend-

ment right to an attorney.

This does raise the question whether the Sixth Amend-

ment right to counsel under Massiah is different from the

Sixth Amendment right to counsel under Miranda, ana

whether the question of waiver should be judged under the

same or different standards. Respondent submits that,

whether the right is under Massiah or Miranda, the waiver

should be judged under the same standard as any waiver of

any other constitutional right—was it a knowing, voluntary,

and intelligent waiver.

Petitioner appears to be arguing for a rule that would not

allow a waiver until a suspect has met with counsel, or else

a rule that interrogation could not take place except in the

presence of counsel. Petitioner does not cite any authority

for either of these rules. Petitioner argues that, because of

counsel’s absence at his interrogation, he was unable to pre-

sent his version of what happened. Petitioner overlooks the

fact that he himself insisted that the detectives not tape

record the conversation. This would have allowed the trial

court and the jury to hear what actually happened, and

would have eliminated the problem of determining whether

“ Accord, United States v. Springer, 460 F.2d 1344, 1350 (7th Cir.),

“© cert. denied, 409 U.S. 873 (1972); Coughlan v. United States, 391 F.2d

371, 372 (9th Cir.), cert. denied, 393 U.S. 870 (1968).

26

petitioner’s version or the detectives’ version was correct. In

the same way that petitioner waived his right to have the

conversation taped, he waived his right to have an attorney

present.

Petitioner argues that, because he made a confession, he

lost a bargaining advantage that he could have used to

plead his way to a reduction of charges. What petitioner

seems to be arguing for is a constitutionally protected right

to use a confession for plea bargaining purposes. To the

extent that this argument has any validity, it would apply

equally to confessions obtained after a waiver of Miranda

rights or Massiah rights. In light of the often repeated pro-

nouncement that “[c]onfessions remain a proper element in

lew enforcement,” it seems inappropriate to now remove

them as an element of law enforcement and make them a

tool for the suspect to use to escape responsibility for his

crimes.

ARGUMENT

III. The Fourteenth Amendment Creates No

Prohibition to Interviewing a Person Once

He Has Waived His Right to an Attorney.

Petitioner contends that the general notions of funda-

mental fairness and due process prohibit the police from

interviewing a person charged with a crime until he has

consulted with a lawyer. Petitioner did not raise this issue

below, and is therefore precluded from raising it here. Car-

dinale"v. Louisiana, 394 U.S. 437 (1969). Moreover, as

noted in Argument II, supra, this Court indicated in Wil-

liams that any rights under the Fourteenth Amendment

may be waived without notice to counsel,“ and the Sec-

ond, Seventh, and Ninth Circuits have specifically held this

to be the rule." Petitioner seems to be arguing that a sus-

pect is entitled to more protection once he is formally

* Miranda v. Arizona, supra, 384 U.S. at 478.

“ 430 U.S. at 405-06.

* Carvey v. LeFevre, supra; United States v. Springer, supra;

Coughlan v. United States, supra.

27

charged. He says that this is necessary to “even the odds.”

But this Court in Escobedo and Miranda held that a person

is entitled to assistance of counsel from the moment he is

arrested. If the odds are uneven, they are just as uneven

before a person is formally charged as they are after he is

charged. And a confession is just as incriminating before a

person is charged as it is after he is charged. A logical ex-

tension of petitioner’s argument is that no confessions

would be permissible until a person has consulted with an

attorney. This Court has not chosen to adopt such a_rule in

the past, and petitioner has not shown any reason why this

Court should do so now.

ARGUMENT

IV. The Record Fully Supports the Determina-

tion of the Trial Court That Petitioner

Intelligently, Knowingly, and Voluntarily

Waived His Right To Remain Silent and His

Right to an Attorney.

Petitioner contends that the record does not support the

ruling of the trial court that petitioner intelligently, know-

ingly, and voluntarily waived his right to remain silent.

While this Court has the duty to determine if there was a

waiver as a matter of constitutional law, factual determina-

tions and resolution of disputed issues are more properly

the province of the trial court, sitting as the finder of

fact.

On the day petitioner was arrested, he was informed of

his rights three times: at the time of his arrest, at his arrival

at the police station, and prior to his taped statement. Peti-

tioner specifically told the officers that he understood his

rights. At trial, petitioner presented’ a psychiatrist, who tes-

tified that petitioner’s level of intelligence was such that he

could understand what the Miranda rights ‘meant, ‘and

could understand the concept that anything he said could

* See Brewer v. Williams, supra, 430 U.S. at 395-97, 402-04. The

trial court specifically noted that it beliéved the officers’ testimony, and

_ it did not believe petitioner’s testimony. (J.A. at 91.) |

28

be used against him. After petitioner made his taped state-

ment, he told Sergeant Bunting that he had been around

and knew how the system worked. Petitioner had been pre-

viously convicted of robbery and sentenced to prison, and

was therefore not exactly a stranger to the system. After

going back and forth for over an hour about making a deal,

when petitioner said that he wanted an attorney before he

would talk about a deal, Sergeant Bunting stopped ques-

tioning him. All of these factors show a clear understanding

on the part of petitioner of the protection that Miranda

and Massiah gave him, and the nature of the rights he had.

In viewing the conduct of the officers on January 20,

1976, several factors are important. At no time during peti-

tioner’s discussion with the officers on the day of his arrest

did he ever say to them that he did not want to talk further

until he had first talked to an attorney. Sergeant Bunting

never interpreted petitioner’s remarks as such a request.

Petitioner was questioned for 3 hours that night, was sent

to the jail at 7:00 p.m., and was not contacted again until

9:15 the next morning. Sergeant Bunting did not send De-

tective Marmion over to the jail the next day, Detective

Marmion went on his own accord as part of his duties as

lead detective on the case. Detective Marmion had with

him Manny Soto’s tape, which petitioner knew about but

had not heard the night before. The detectives met with

petitioner in one of the rooms used by attorneys to discuss

cases with their clients. Upon entering the room, petitioner

was again advised of his rights. Petitioner did not say to the

detectives that he did not want to talk to them, and did not

ask for an attorney. To the contrary, he said that he would

talk to them, and asked to hear Manny Soto’s tape. After

hearing the tape, he freely and voluntarily made a state-

ment.

Petitioner points to several things that he claims make

the statement involuntary. In viewing these claims, it must

be remembered that the trial judge, who had the opportun-

ity to view petitioner while he was testifying, did not

29

believe petitioner.” Petitioner claims that he was taken

from the police station and put in solitary in the Pima

County Jail. All of the officers who testified said that they

did not know where petitioner was being kept at the jail.

From this it appears that neither Sergeant Bunting, Detec-

tive Marmion, nor any of the other officers working on the

case had anything to do with where petitioner was being

kept. Additionally, petitioner was not in “solitary” as such,

he was with a “brother” named Al J. Carter. Finally, peti-

tioner never claimed that this night he spent in solitary had

any coercive effect on him when he made his statement,

and there is no evidence in the record that it had such an

effect.

Petitioner claimed that he told the detention officer that

he did not want to come out of his cell. He also claimed

that he told the detectives that he did not want to speak to

them. Both detectives testified that petitioner never told

them that he did not want to talk to them. The trial judge

did not believe petitioner, and specifically found that De-

tective Marmion did nothing wrong, and found that there

was no compulsion or anything of that kind used on peti-

tioner.* Assuming that it is true that petitioner told the

detention officer that he did not want to talk to the detec-

tives, the facts as found by the trial judge were that he

never told this to the detectives, and. that they did not

know of this statement by petitioner, if in fact he did ac-

tually make it. The record clearly supports the finding of

the trial court that petitioner’s incriminating statement: was

freely and voluntarily made, and that there: was no compul-

sion or coercion used by the detectives. : its an 10}

Petitioner claims that he did not ask for an attorney the

morning of January 20, 1976, because “I didn’t think you

had to keep asking for an attorney over and over and

AM bs! oc5dt eniwais Vistiiovit tqsarstease os

o J.A. at 92, ia , TACLaT

30

over.”** All of the officers who testified said that petitioner

never, at any time, asked for an attorney, or said that he

would not talk until he saw one. Since petitioner did not

ask for an attorney in the first place, it seems strange that

he would view the matter in terms of asking over and over

and over. This appears to be another one of petitioner’s

inconsistent statements that the trial court did not believe.

Petitioner makes much of the fact that he told the detec-

tives that he did not want the statement recorded because

he did not want it used in court. A similar situation oc-

curred in United States v. Charlton,“ where the suspect

agreed to talk provided it was “off the record.” The court

rejected the contention that this made the statement inad-

missible:

There is no evidence that any of the officers ever

promised such confidentiality to his statements. The

rights which Michigan v. Mosley commands be “scru-

pulously honored” do not in our judgment include a

right to control the use of a statement which is other-

wise voluntarily given with full knowledge of its

potential incriminatory value.

565 F.2d at 90 n.2. This same reasoning was used to reject a

similar admissibility argument in Kennedy v. Fairman:*'

Petitioner contends that he did not waive any rights

by telling the officers that he was willing to talk; rath-

er, he made statements to the police under the

erroneous assumption that because he had no attorney

present, nothing he said could be used against him. We

do not find this argument persuasive.

618 F.2d at 1248. In this case, petitioner on four occasions

was advised that anything he said could be used against

him. The psychiatrist who examined him said that his intel-

ligence was such that he would be able to understand the

” J.A. at 84.

© 565 F.2d 86 (6th Cir. 1977), cert. denied sub nom. Jacek v. United

States, 434 U.S. 1070 (1978).

® 618 F.2d 1242 (7th Cir. 1980).

31

Miranda rule and know that anything he’said could be ised

against him.“ Detective Marmion testified that he knew a

statement would not be admissible if petitioner did not

understand, so he “wanted to be sure [petitioner] under-

stood what was going on, that he voluntarily waived his

right, that he’ ‘understood it would be used against

him.”* In petitioner’s own words, he had béen around’ and

knew what was going on.“ Petitioner knew that, once he

had made a statement on tape, he could no longer deny

that he made it. On the other hand, if he later wanted to

deny that he made the statement and it was not on tape, he

could deny it, and it would be his word against the detec-

tives’ word. That clearly was his ultimate strategy. He told

his original attorney, David Hoffman, that he never made

the second statement, and told Hoffman to make the police

officers produce some tape recording or written. record of

the statement.® At the first day of the voluntariness hear-

ing, petitioner denied that he made the second

statement.” And finally, during closing argument, peti-

tioner told the jurors that, because the detectives did not

have any written or recorded proof that he made a state-

ment, that meant that he did not make a statement.*’ The

record clearly shows that petitioner knew how the system

worked, and tried to manipulate it to his advantage. This is

not a case of an unknowing person overwhelmed by the sys-

tem. Petitioner knew what his rights were, knew what he

was doing, and made an intelligent, knowing, and voluntary

waiver of his right to an attorney and his right to.remain

silent. The trial court so found, and we ask this Court to

uphold the ruling of the trial court.

S.A’ at '59.

® J.A. at 59.

* J.A. at 39.

* S.Arat 67. 00

% J.A. at 50.

* S.A. at 65-66.

32

CONCLUSION

For all of the above-stated reasons, respondent respect-

fully requests that this Court affirm the judgment of the

Arizona Supreme Court.

Respectfully submitted,

RoBERT K. CorsBIn

Attorney General of

the State of Arizona

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

CRANE McCLENNEN

Assistant Attorney General

Attorneys for Respondent

August 9, 1980