# Respondents Brief — Edwards v. Arizona

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 477

## Text

aeaalini cnniiiepemeaasianinanite _}i
= 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2656%3A08. Public record. Not legal advice.