29 F.3d 1216 (7th Cir. 1994), 93-1835, Lord v. Duckworth

Docket Nº:93-1835.
Citation:29 F.3d 1216
Party Name:Charles T. LORD, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
Case Date:July 21, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1216

29 F.3d 1216 (7th Cir. 1994)

Charles T. LORD, Petitioner-Appellant,

v.

Jack DUCKWORTH, Respondent-Appellee.

No. 93-1835.

United States Court of Appeals, Seventh Circuit

July 21, 1994

Argued Jan. 18, 1994.

Page 1217

Patrick Stern (argued), Indianapolis, IN, for petitioner-appellant.

Wayne E. Uhl, Dist. Atty. Gen. (argued), Gen. Litigation, Indianapolis, IN, for respondent-appellee.

Before FLAUM and ROVNER, Circuit Judges, and WILLIAMS, District Judge. [*]

FLAUM, Circuit Judge.

In 1987, a jury in the circuit court of Gibson County, Indiana, convicted the petitioner, Charles Thomas Lord of murder, for which he received a sentence of eighty years imprisonment. After unsuccessfully appealing his conviction in the Indiana courts, Lord filed this petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied Lord's petition. On appeal, Lord contends that police interrogators violated his right against self-incrimination and his right to obtain the assistance of counsel in two ways: (1) by continuing their interrogation after he requested counsel, and (2) by eliciting a confession through an illusory promise of leniency. We affirm.

I.

In September, 1986, the Indiana State Police questioned Lord about a missing person, Frederick Michael Thompson. The police became suspicious of Lord because he was one of the last people seen with Thompson and because Lord's account of the events of September 5-6, 1986, contained some general inconsistencies. On September 24, 1986, a county employee found Thompson's body, with a bullet wound to the back of the head, in a cistern beside an abandoned farmhouse. 1 Following this discovery, the police returned to further question Lord, at which time they advised him of his Miranda rights.

The following day, Lord voluntarily drove to an Indiana State Police Post to take a polygraph test. After Officer Fred Joseph Vetter again informed Lord of his Miranda rights, Lord signed a polygraph waiver form and took the test at 1:20 p.m. Vetter was unconvinced by Lord's responses and continued to question him through the afternoon. At around 4:50 p.m., Vetter suggested that Lord speak directly with the county prosecutor, George Ankenbrand. As reflected in the record, their tape-recorded conversation went as follows:

MR. VETTER: ... If I could get George down here right now and tell him the truth, if I could get him down here and you were willing to tell him the truth, and I could cut him a deal, would you ... would you talk to him? If I could promise you ... if I could promise you ... if I could promise you he'd cut a deal with you, would you then talk and tell the truth? You better hurry. It's getting close to quitting time. It's 4:50. If I could get George down here and he'd cut you a deal ...

DEFENDANT: George?

MR. VETTER: George Ankenbrand. If he would come down here and you would finally tell the truth, if I can get him down here, would you tell the truth, if he'll cut you a deal? You got ten seconds to make

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up your mind. This is the first and last offer.

DEFENDANT: What would happen?

MR. VETTER: Don't know. That's what I said, have to get him down here and you'd have to tell him the truth. You'd have to tell him all of what you're talking about. In other words, you'd have to tell him that you're involved somehow or another, that you state your involvement and you tell him the truth, he'll cut you a deal. Would you be willing to talk then?

DEFENDANT: Yeah.

MR. VETTER: Okay.

Immediately after this exchange, Officer Vetter left the room and Officer Michael Sibbitt entered the room saying to Lord, "Joe [Vetter] said that you might be able to clear some things up for us, said you wanted me to call George Ankenbrand to talk to him about it. Uh, I want, you know, I've got to know something, what to tell him. I don't know if I can call him ..." Lord then expressed his desire to return home later that night and his concern that his name and story would be printed in the newspaper. The conversation then continued as follows:

MR. SIBBITT: Well, let's don't worry about the newspaper you know. We'll ... we'll cross that bridge whenever we come to it. Well, you know, that's the least important thing. We just want to get some idea of what you're going to be able to tell us so I can get hold of the Prosecutor and talk to him, you know. I think that ... I think that you need to tell me something so I'll know what to call him, you know, some idea of what to tell him. Do you know what I mean?

DEFENDANT: I don't know, I just need to talk to somebody.

MR. SIBBITT: You can talk to me. I've known you a long time.

For the next eighty minutes, Lord did indeed talk. At 6:20 p.m., Officer Sibbitt again gave Lord his Miranda warnings and recorded a lengthy statement, including incriminating admissions. When the statement was completed, Lord agreed to assist the police in finding the gun that was used in the crime. The following exchange then occurred:

DEFENDANT: I can't afford a lawyer but is there anyway I can get one?

MR. SIBBITT: Yeah. (Nods head yes.)

DEFENDANT: Is there anyway I can talk to some doctor or someone too?

MR. SIBBITT: Well, that will be up to the ... that will be up to the Court or up to your attorney....

DEFENDANT: The only thing I was wondering about is if I could go home tonight and somebody pick me up tomorrow ... (inaudible).

After being arrested and handcuffed, Lord accompanied the officers to the place where Thompson's body was found where they attempted, unsuccessfully, to locate the murder weapon. Lord spent the evening at the Gibson County Jail. The following morning, Officer Sibbitt and Detective Glenn Munnier visited Lord in his cell. Sibbitt verbally gave Lord a Miranda warning and asked if Lord had any additional information he wished to tell them. While Sibbitt went to retrieve a tape recorder, Lord asked Munnier if he would be able to obtain a lawyer when he went to court. Munnier replied that the court had a procedure for appointing lawyers. After Sibbitt returned, the officers again advised Lord of his rights and, for the third time, Lord executed a waiver of those rights. Lord then made further incriminating statements.

At trial, Lord moved to suppress all statements he made after asking if there was any way he could get a lawyer. After reviewing a videotape of the critical dialogue, the state trial court found Lord's request to be "equivocal and ambiguous, when viewed in the context in which it was made." Record at 33. In resolving this ambiguity, the court determined that Lord's...

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