Opposition — White v. Finkbeiner

| - RECEIVED

‘JUL 16 1980

b-

NO, 79-6601

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

EUTUES WHITE, Petitioner, RP ANAT AR Cee

EINAL GOPY

-vVs —

FRED FINKBEINER, Respondent.

For RO SPmbe oT

BRIEF ,IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WILLIAM J. SCOTT

Attorney General

State of Illinois

MICHAEL J. HAYES

Assistant Attorney General

Special eS ote Division, Chief

160 North LaSalle Street, Room 850

Chicago, Illinois 60601

- (312) 793-3587

KATHLEEN M. LIEN

Assistant Attorney General

Special Litigation Division

160 North LaSalle Street, Room 416

Chicago, Illinois 60601

(312) 793-3933

Of Counsel

“ATTORNEYS FOR RESPONDENT

NO, 79-6601

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

EUTUES WHITE, Petitioner,

-vVvs _—

FRED FINKBEINER, Respondent,

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

QUESTIONS PRESENTED

1. Whether the statement in Miranda v, Arizona, 384 U.S.

436, 474 (1966), that "(i)f the individual states that he wants

an attorney, the interrogation must cease until an attorney is

present" creates a per se rule prohibiting the waiver of a pre-

vious request for counsel?

2. Whether full Miranda warnings, a signed waiver of those

rights, and the statement that "I don't need a lawyer" are suf-

ficent factors to constitute a knowing and intelligent waiver of

the statement made on the previous day to a non-investigating

officer that "I'd rather see an attorney"?

Page

QUESTIONS PRESENTED .... Geis SS PE Saeee eveeeeeel—~a

OPINIONS BELOW ........ ae Seta s's ka Ck Cases eueeecsare

PORRM MO IED ce sk ub abe sbcc case ccc veasanderna..9

REASONS FOR DENYING CERTIORARI:

I. THE FINDING OF THE COURT OF APPEALS FOR THE

SEVENTH CIRCUIT THAT IN CERTAIN INSTANCES A

PERSON IN CUSTODY WHO’ HAS PREVIOUSLY REQUESTED

COUNSEL MAY KNOWINGLY AND VOLUNTARILY WAIVE

COUNSEL IS IN ACCORD WITH THE APPLICALBE DE-

CISIONS OF THIS COURT AND IS IN ACCORD WITH THE

OTHER CIRCUIT COURTS OF APPEAL................

II. THE FINDING OF THE COURT OF APPEALS FOR THE

SEVENTH CIRCUIT THAT PETITIONER WHITE WAIVED

HIS PREVIOUS REQUEST FOR COUNSEL IS CONSISTENT

WITH THE DEFINITION OF WAIVER AND WITH THE mpsate

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TABLE OF AUTHORITIES

Fare v. Michael ¢. a OP. 5 DD 6.08; 2560, 62 L.Ed. 2d_

ME REE MaRS Rion Gv 0x6G View cs U4 0 wo + mkan .

son v. Zerbst, 304 U.S. 458 (1938)......... iWesakeue ee

Michigan v. Mosley, 432 U.S. 96 (1975 .................. 6,7,8

Miranda v. Arizona, 384 U.S. 436 (1966) ....... te eenen ees b16,7,8

Nash v. Estelle, 597 F.2d 513 (Sth Cir. 1979).,..........8

North Carolina v. Butler, U.S. p 99°s.c.t 1755, 60 _L

eset -2d-286 (1979)-........ Seah xia ceil peeabas 6,7,8

Stone v. Powell, 428 U.S. 465 (1976) ......... es ‘ae

People v. White, 10 I1l.App.3d 914, 295 N.E.2d 300 (Sth >

Ry Eee SRUEOD path anda Peis ce Sout ek peck onde, LS

te SM ee re es

People v. White, 61 I11.2d 288, 335 N.E.2d 457 (1975)

Wilson v. Henderson, 584 F.2d 1185 (2d Cir. 1978) ...\...8°

United States ex rel. Cooper v. Warden, Illinois State Peni-

tentiary, 566 F.2d-28 (7th Cir. 1977) .......— r)

United States v. Grant, 549 F.2d 942 (4th Cir. 1977) ....8

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

United States v. Monti, 557 F.2d 899 (lst Cir. 1977) wo ee8

United States v. Ridri ez-Gastelum, 569 F.2d 482 (9th Cir.

ee ove sieriguez-GCasteium .

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White v. Finkbeiner, 570 F.2d 194 (7th Cir. 1978) ....... 3

—_—_——_ ed ¢,

v. Finkbeiner, 611-F.2d 186 (7th Cir. 1979) ....... 3

v. Illinois, 424 U.S. 970 (1976)...........000..0003

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. OPINIONS BELOW

Petitioner, Eutues White, was convicted of murder by a

jury on October 8, 1969 in the Circuit Court of St. Clair

County, Illinois.

_On direct appeal, the Appellate Court of Illinois remanded

White's case for a hearing on the admissibility of his confession.

People v. White, 10 I1l.App.3d 914, 295 N.E.2d 300 (5th Dist.1973).

The trial court held the hearing, found the confession voluntary

and admissable, and entered a new judgment of conviction on

July 27, 1973. The Appellate Court affirmed the judgment, People

v. White, 22 I1l.App.3d 180, 317 N.E.2d 323 (5th Dist. 1974), as

did the Illinois Supreme Court, People v. White, 61 I11.2d 288,

335 N.E.2d 457 (1975). Certiorari was denied, White v. Illinois,

424 U.S. 970 (1976).

Subsequently, White filed a petition for a writ of habeas

corpus, claiming that his conviction had been obtained by the

use of a coerced confession in violation of the Fifth and Sixth

Amendments. The United States District Court for the Southern

District denied the petition. On appeal, the United States Court

of Appeals for the Seventh Circuit reversed and remanded for an

evidentiary hearing to determine if White requested counsel while

in custody, if White waived the request for counsel, if the police

officers acted in good faith in obtaining White's confession, and

if the reasoning of Stone v. Powell, 428 U.S.465 (1976), precluded

federal habeas corpus relief. White v. Finkbeiner, 570 F.2d 194

(7th Cir. 1978). The evidentiary hearing was held, the District

Court found that White made no clear or unequivocal request for

counsel, and the petition was again denied.

On the second appeal to the United States Court of Appeals

for the Seventh Circuit, the Court of Appeals held that White

requested counsel, that there was no per se rule preventing the

waiver of that request for counsel, and that White knowingly and

voluntarily waived his request for counsel. White v. Finkbeiner,

611 F.2d 186 (7th Cir. 1979). A petition for rehearing and sugges-

tion for rehearing en banc was denied.

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STATEMENT OF THE CASE

On November 27, 1968, Bruce Reinheimer was abducted, robbed,

and shot in the head. (T 24) On May 24, 1969, Petitioner,

Eutues White, was arrested for a crime unrelated to the Reinheimer

murder. (R 24) After White's arrest, he was taken to the East

St. Louis Police Station. The facts directly bearing on White's

request for counsel occurred while he was in custody on May 24,

May 25, and May 26, 1969.

On May 24, 1969, White was taken from his cell to see Captain

William Johnson. The testimony of both Captain Johnson and

White established that the meeting was very short, that the purpose

was to ascertain if Captain Johnson knew White, that no interroga-

tion of White b Captain Johnson occurred, and that White was

subsequently returned to his cell. (S 11-12; RR 27-28)

Captain Johnson was not called as a witness at the trial in

1969. At the suppression hearing in 1973, Captain Johnson stated

th + White "didn't want to talk ... he would rather see a lawyer".

. 24) Captain Johnson clearly indicated that White did not

want to talk to him and that his right to remain silent was under-

stood and honored. (RR 24, 31-32) Captain Johnson also clearly

indicated that White was never refused the opportunity to call

an attorney or to have one appointed. (RR 28) At the evidentiary

hearing in 1979, Captain Johnson testified that his testimony at

the suppression hearing in 1973 was true and correct, but that he

no longer had any independent or refreshed recollection of the meet-

ing. (S 24)

White was not asked specifically about his conversation with

Captain Johnson at the trial in 1969. White did testify that he

did not remember events during his confinement. He stated that

he did not remember being questioned, or even being in jail during

the month of May. (T 142) At the suppression hearing in 1973,

White declined to testify after Captain Johnson was called as a

witness (RR 30) and after Captain Johnson was recalled as a witness

(RR 35). At the evidentiary hearing in 1979, White testified:

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“I was down here to see a lawyer" (S 12), "I want to see an

attorney" (S 18), and "I'd rather see an attorney" (S 19),

When specifically asked by the Court if there was some particular

attorney he wanted to talk to or just any attorney, White replied

“Well, I didn't want to talk to him (Johnson)", (S 18)

On May 25, 1969, White was questioned by Officer Cornelius

O'Sullivan and Officer William Stanis. Before questioning, White

was advised of, appeared to understand, and waived his Miranda

rights. (S 37-38; RR 7-8) He then confessed to crimes not

relevant to the present petition.

On May 26, 1969, White confessed to the Reinheimer murder,

and he reinacted the crime. The repeated testimony of Officers

Stanis and O'Sullivan concerning this confession was that White

was advised of his Constituitonal rights according to the Miranda

standards, that he understood them, and that he waived then.

(RR 3-4; T 51; RR 11, 19-20; S 40, 47) When specifically questioned

as to White's response when told he had the right to have an

attorney present, Officer O'Sullivan (R 13; S 49) and Officer

Stanis (T 71) both stated, "He said he didn't need one". The con-

=cssion itself is signed on both pages and contains a signed

waiver of the Miranda rights. (Exhibits 1 and 2 following T 55)

Also, both officers stated that no coercion or inducement was used

to obtain the confession (R 5; T52), and that White read the

statement aloud before signing it (R 5, 12; S$ 47).

Pao

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REASONS FOR DENYING CERTIORARI

I. THE FINDING OF THE COURT OF APPEALS FOR THE

SEVENTH CIRCUIT THAT IN CERTAIN INSTANCES A

PERSON IN CUSTODY WHO HAS PREVIOUSLY REQUESTED

COUNSEL MAY KNOWINGLY AND VOLUNTARILY WAIVE

COUNSEL IS IN ACCORD WITH THE APPLICABLE DE~

CISIONS OF THIS COURT AND IS IN ACCORD WITH

THE OTHER CIRCUIT COURTS OF APPEAL

The Court of Appeals for the Seventh Circuit found that

Petitoner, Eutues White, made a request for counsel, but that

that request was subsequently waived, Petitoner's first conten-

tion is that there is a per se rule prohibiting such a post-

request waiver. Petitoner looks to Miranda v. Arizona, 384 U.S.

436 (1966), Michigan v. Mosley, 432 U.S. 96 (1975), and Fare v.

Michael C., __U.S. __, 99 S.Ct. 3560, 61 L.Ed.2d 197 (1979),

to support this contention.

It is possible to argue that the per se rule desired by

Petitioner was created when the Miranda Court commented that "(if

the individual states that he wants an attorney, the interrogation

m. = cease until an attorney is present". 384 U.S. at 474. How-

*er, such an argument ignores the numerous Miranda passages

dealing with waiver, 384 U.S. at 444, 470, 475, 476, 479, and

ignores the thrust of Mosley, Fare, and North Carolina v. Butler,

—__._:; U.S. ___, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

Mosley rejected a literal interpretation of a comment in the

same paragraph of Miranda that "(i)f the individual indicates ...

he wishes to remain silent, the interrogation must cease ... any

statement taken after the person invokes his privilege cannot be

other than the product of compulsion". 384 U.S. at 474. Not

only did this Court find that that passage did not create a per se

rule prohibiting a waiver after a previous request to remain

silent, this Court also rejected the entire literal interpretation

approach because it would lead to absurd and unintended results,

because it would create irrational obstacles to legitimate police

investigation, and because it would deprive a suspect of an

opportunity to make an informed and intelligent assessment of his

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interests, 423 U.S, at 102, The Court of Appeals correctly in-

terpreted the message of Mosley to be that’ Miranda procedures are

flexible and not controlled by one isolated passage in that decision,

While Fare was not specifically discussed by the Court of

Appeals, the Fare holding reinforces the statement in the opinion

that the proper waiver analysis depends on the totality of the

circumstances. Fare reversed the California Supreme Court because

it rejected a totality of the circumstances inquiry. 99 S.Ct. at

2566, 61 L.Ed.2d at 204. It was found that a totality of the

circumstances analysis was adequate to determine if there had been

a waiver and that a totality of the circumstances analysis pre-

vented inposing rigid restraints. _

(T)he determination whether statements

obtained during custodial interrogation

are admissible against the accused is

to be made upon an inquiry into the total-

ity of the circumstances surrounding the

interrogation, to ascertain whether the

accused in fact ER and voluntarily

decided to forgo his rights to remain

silent and to have the assistance of

counsel. 99 S.Ct. at 2571-2572, 61 L.Ed.

2d at 212.

It should also be noted that the so called per se rule of

Fare is that "an accused's request for an attorney is per se an

invocation of his Fifth Amendment rights". 99 S.Ct. at 2569, 61

L.Ed.2d at 209. Rather than mitigate against a possible waiver

of counsel, it can just as well be urged that his passage means

that a request for counsel can be waived under the Mosley criteria

for waiver of Fifth Amendment rights.

Butler is perhaps the most analogous case because it directly

presents a waiver of counsel question, although an initial rather

than a post-request waiver of counsel question. Butler held that

an explicit statement of waiver is not invariably necessary to

support a finding that a defendant waived the right to resain

silent or the right to counsel guaranteed by Miranda. 99 S.Ct. at

1758-1759, 60 L.Ed.2d at 293-294,

Even when the right so fundamental as that

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this. 99 S.Ct. at 1758, 60 L.Ed.2d at 293.

Both the Butler decision and the opinion of the Court of Appeals

recognized that the real purpose of Miranda was to permit a full

exercise of one's Constitutional privileges.

While there is no opinion by this Court exactly holding

that there is no per se rule prohibiting a post-request waiver of

counsel, Mosley held that there was no per se rule prohibiting a

post-request waiver of silence, and Butler held that there was no

per se rule prohibiting an initial waiver of counsel. It appears

that the Court of Appeals correctly chose to eschew the per se

rule approach and instead to adopt a case-by-case analysis.

The Seventh Circuit is not alone in rejecting a per se rule

prohibition of post-request waivers of counsel. The cases cited

by Petitioner do not support the assertion that the Circuit Court

of Appeal are in a state of confusion. In fact, the decision of

the Seventh Circuit is in conformity with the majority of other

Circuit Court of Appeal. United States v. Monti, 557 F.2d 899

(lst Cir. 1977); Wilson v. Henderson, 584 F.2d 1185 (2nd Cir. 1978),

cert. denied 99 S.Ct. 2892 (1979); United States v. Grant, 549

F.2d 942 (4th Cir.), cert. denied 432 U.S. 908 (1977); Nash v.

Estelle, 597 F.2d 513 (Sth Cir. 1979), cert. denied 100 S.Ct. 485

(1980); United States v. Hauck, 586 F.2d 1296 (8th Cir. 1978), cert.

denied 99 S.Ct. 2170 (1979); United States v. Rodriguez-Gastelum,

569 F.2d 482 (9th Cir.), cert. denied 98 S.Ct. 2266 (1978).

It should also be noted that the White decision does not re-

present a reversal of the Seventh Circuit position in United States

ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972). The

warnings given in that case were defective. Thus, there was never

the known right necessary for a finding of waiver.

II, THE FINDING OF THE COURT OF APPEALS FOR THE

SEVENTH CIRCUIT THAT PETITIONER WHITE WAIVED

HIS PREVIOUS REQUEST FOR COUNSEL IS CONSISTENT

WITH THE DEFINITION OF WAIVER AND WITH THE

FACTS OF THE CASE

The Court of Appeals for the Seventh Circuit found that

Petitioner, Eutues White, made a request for counsel, but that

that request was subsequently waived. Petitioner's second con-

tention is that the facts of this case do not support the find-

ing of a waiver.

Consistent with the previously discussed cases, the Court

of Appeals used the established standard of waiver found in

Johnson v: Zerbst, 304 U.S. 458 (1938). A waiver is an intentional

relinguishment or abandonment of a known right or pivilege. 304

U.S. at 464,

The record supportsthe finding that the right to counsel

was known by Petitioner. Petitioner received full and complete

Miranda warnings on May 24, May 25, May 26, 1969, and Petitioner

read these rights aloud before signing a waiver of them. (R 5,12;

8 47) While Petitioner did receive a score of 79 on a vocabulary

baved test, the examing doctors also found that Petitoner was

alert, gave information in a well organized manner, and that he

had the capacity to understand the charges and aid in his own

defense. (C7) It should also be noted that Petitioner was

familiar with legal procedures and police questioning as he had

been arrested on numerous prior occasions. The Court of Appeals

followed its established approach to 1.Q. test, United States

ex rel.Cooper v. Warden, Illinois State Penitentiary, 566 F.2d 28

(7th Cir. 1977), and properly relied on Petitioner's entire back-

ground, experience, and conduct.

The record supports the finding the Petitioner intentionally

abandoned his right to counsel. Petitioner was not interrogated

on May 24, 1969, following his “off-hand” comment that he would

“gather see an attorney”. (8S 11-12; RR 27-28) Petitioner demon-

strated no desire to follow-up on this comment. When advised of

— es ee

his right to an attorney on May 25 and May 26, 1969, there is

uncontradicted testimony that Petitioner stated that, “I don't

need one". (T 71; R 13; S 49) It should also be noted that

Petitioner never testified to even requesting counsel until

the evidentiary hearing held in the District Court ten years

later. There is no evidence in the record of coercion, trickery,

harassment, or any reprehensible police conduct that should be

curbed, or that conflicts with the finding of a near explicit

waiver.

CONCLUSION

For the aforementioned reasons, the respondent requests

that the petition for writ of certiorari be denied.

Respectfully submitted,

WILLIAM J. SCOTT

Attorney General

State of Illinois

MICHAEL J. HAYES

Assistant Attorney General

Special Litigation Division, Chief

160 North Lagalle Street, Room 850

Chicago, Illinois 60601

(312) 793-3587

KATHLEEN M. LIEN

Assistant Attorney General

Special Litigation Division

160 North LaSalle Street, Room 416

Chicago, Illinois 60601

- (312) 793-3933

Of Counsel

-10-

NO, 79-6601 ’

IN THE

SUPREME COURT OF THE UNITED STATES

“OCTOBER TERM, 1980

EUTUES WHITE, Petitioner,

-Vs-

NOTICE

To: RALPH RUEBNER

Deputy Defender

KENNETH L. JONES

Assistant ge peg Defender

Office of the State Appellate Defender

130 North Wells Street, Suite 2200

Chicago, Illinois 60606

PLEASE TAKE NOTICE that on July 15, 1980, we mailed the

original and one copy of the attached Brief In Opposition To

Petition For Writ of Certiorari in the above entitled cause to

the Clerk of the United States Supreme Court, copies of which are

hereby served on you.

\ ’

athleen M. n

Assistant Attorney General

STATE OF ILLINOIS)

) ss

COUNTY OF COOK )

The undersigned being first duly sworn on oath deposes

and states that a copy of the above Notice and Brief was served

upon the above named parties on July 15, 1980 by depositing such

copy in the United States mail.

SiGe ots.

SUBSCRIBED and SWORN to

before me this 15th day

of July, 1980.

Sorta) 1. barren)”

NOTARY PUBLIC

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