34 F.3d 1237 (3rd Cir. 1994), 93-7423, Alston v. Redman

Docket Nº:93-7423.
Citation:34 F.3d 1237
Party Name:Harold S. ALSTON, Appellant v. Walter REDMAN, Warden; Charles M. Oberly, III, Attorney General of the State of Delaware; and the State of Delaware, Appellees.
Case Date:September 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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34 F.3d 1237 (3rd Cir. 1994)

Harold S. ALSTON, Appellant


Walter REDMAN, Warden; Charles M. Oberly, III, Attorney

General of the State of Delaware; and the State

of Delaware, Appellees.

No. 93-7423.

United States Court of Appeals, Third Circuit

September 7, 1994

Argued May 2, 1994.

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[Copyrighted Material Omitted]

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Robert E. Nicholson (argued), New Brunswick, NJ, for appellant.

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Loren C. Meyers (argued), Deputy Atty. Gen., Dept. of Justice, Wilmington, DE, for appellees.

Before: GREENBERG and GARTH, Circuit Judges, and ROBRENO, District Judge. [*]


EDUARDO C. ROBRENO, District Judge.

Harold S. Alston appeals the denial by the district court of his petition for writ of habeas corpus. He argues that his present incarceration by the state of Delaware is illegal because his conviction was bottomed on self-incriminating statements taken in violation of his constitutional rights. More specifically, Alston claims that he was interrogated by the authorities in violation of his right to counsel as established by the Sixth Amendment and by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also claims that his waiver of his Miranda right to counsel was coerced. We find that the Sixth Amendment violation was harmless error, that petitioner's invocation of his Miranda right to counsel was anticipatory since it was made outside of the context of custodial interrogation, and was thus ineffective, and that his waiver was not coerced. We will therefore affirm.


In the summer of 1985, police officers were investigating a number of robberies that had taken place in and around Wilmington, Delaware. At the scene of the robbery of Allen Medkeff and Michelle Sands (the "Medkeff-Sands robberies"), police recovered a fingerprint from an item touched by the robber. Acting upon information provided by a confidential informant linking petitioner Harold S. Alston to the Medkeff-Sands robberies, the police compared the recovered fingerprint to Alston's known prints, and established that the prints matched. A warrant for Alston's arrest issued, charging him with first degree robbery and second degree conspiracy, and he was arrested in North Carolina on August 19th. Waiving extradition, he was brought to Delaware on August 23rd, and was interrogated that same day by Delaware State Police. The police gave Alston his Miranda warnings, as required by Miranda v. Arizona, 384 U.S. at 444-45, 86 S.Ct. at 1612. He waived his Miranda rights and the police proceeded to question him about the robberies, including the Medkeff-Sands robberies. Though at first denying any involvement, Alston eventually admitted to a number of robberies after the police reminded him of the fingerprint that they had recovered at the scene. In light of the offer by the police interrogators that they would recommend to the prosecutor that Alston be charged with only one count of robbery if he cooperated, Alston admitted to participating in the Medkeff-Sands robberies, as well as six other robberies committed during the summer of 1985. Alston was taken before a Justice of the Peace on the robbery and conspiracy charges and was committed to Gander Hill prison for pretrial detention.

Three days later, on August 26, 1985, Alston was interviewed by a person from the Public Defender's office, who Alston assumed was an attorney. 1 See App. at 227. During the course of the interview, Alston signed a form letter, addressed to the warden of the Gander Hill facility:

Dear Sir:

I am presently a detainee in this institution and I will not speak to any police officer, law enforcement officers, their agents, or representatives from the Department of Justice, of any jurisdiction, without a Public Defender being present at such a meeting.

I further do not wish to be removed from my [cell] and brought to a meeting with the above-mentioned officers for the purpose of discussing a waiver of my constitutional rights in this regard.

Signed /s/ Harold S. Alston

Date 8-26-85

App. at 4. The letter was never actually delivered to Gander Hill's warden, since the

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established practice at Gander Hill was that someone from the warden's office would call the Public Defender's office when officers sought to question a prisoner, and inquire whether such a form letter had been executed. If a prisoner wished to speak to the authorities notwithstanding his prior execution of the invocation of counsel form letter, he would be asked to sign a form waiving his previous request to have counsel present during an interrogation. Alston never signed this second form.

On August 28th, Alston was indicted for the Medkeff-Sands robberies. On August 29th, he was taken from Gander Hill to the Wilmington police department for processing on the new charges stemming from the six other robberies to which he had confessed on the 23rd and for further questioning. The warden's office made no inquiry of the Public Defender's office regarding whether Alston had signed the invocation of counsel form. At the police station, after the police read Alston his Miranda rights and he waived them, Alston was questioned for a second time, six days after his first interrogation on August 23rd. During this second interrogation, Alston confirmed his prior confessions, and, after prompting by one interrogator, confessed to another robbery that he had not mentioned before. It is the legality of the use of this second confession at his trial that forms the core of petitioner's appeal.

Due to Alston's perceived lack of candor, the police informed the prosecutor of the promise made, but declined to recommend that Alston be charged with one count of robbery. The grand jury subsequently delivered a superseding indictment against Alston and a number of other defendants, indicting Alston on nine counts of first degree robbery and nine counts of second degree conspiracy.

Before trial, Alston sought to suppress the statements he gave to the police on the 23rd and the 29th, claiming that both of his statements were involuntary and, further, that his second statement was taken in violation of his Sixth Amendment right to counsel. The trial court denied the suppression motion. See App. at 117-21. Alston proceeded to trial, where the state introduced, inter alia, the fingerprint evidence, the confessions, and the testimony of Medkeff and Sands, both of whom identified Alston. Alston was found guilty on seven of the nine robbery counts and on all of the conspiracy counts, including the Medkeff-Sands robberies.

On direct appeal, the Delaware Supreme Court agreed with Alston that the statement made during the August 29th interrogation concerning the Medkeff-Sands robberies was taken in violation of his Sixth Amendment right to counsel, but ruled that the error was harmless, since there was substantial evidence supporting the conviction. See Alston v. State, 554 A.2d 304, 308-09 (Del.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2455, 104 L.Ed.2d 1009 (1989). The Court also found that the statements were made voluntarily, that Alston's waivers of his Miranda rights were proper, and that Alston's execution of the form provided to him by the Public Defender's office and never transmitted to the warden did not serve to invoke his Miranda right to counsel. See id. at 307-08, 310-11. Finally, the Court reversed one of the conspiracy convictions relating to the Medkeff-Sands robberies, since the evidence showed only one agreement. See id. at 312. Alston's petition for writ of certiorari was denied by the United States Supreme Court, 490 U.S. 1101, 109 S.Ct. 2455, 104 L.Ed.2d 1009 (1989), as was his application for state post-conviction relief, Alston v. State, 590 A.2d 502 (Del.1991) (unpublished disposition).

Alston petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, claiming, inter alia, that his execution of the invocation of counsel form letter was sufficient to trigger his Miranda right to counsel, thus rendering inadmissible at trial any statements made during the August 29th interrogation. The petition was referred to a magistrate judge, who recommended that the petition be denied. The district court, after a de novo review of the record, adopted the magistrate judge's Report and Recommendation and denied the petition for habeas relief. A motions panel of this Court issued a certificate of probable cause. See Fed.R.App.P. 22(b).


The matter was properly before the district court, and this Court has jurisdiction

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over petitioner's appeal. See 28 U.S.C. Secs. 1291, 2253. The claims raised in the petition were properly exhausted, having been fairly presented to the Delaware Supreme Court. See Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Wise v. Fulcomer, 958 F.2d 30, 33 (3d Cir.1992). In deciding this appeal, the Court exercises a mixed standard of review. The district court's legal conclusions are subject to plenary review, but factual conclusions are reviewed for clear error. See Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). There is a presumption that historical fact-finding by a state court, whether trial or appellate, is correct. 2 See 28 U.S.C. Sec. 2254(d); Miller v. Fenton, 474 U.S. 104, 117, 106 S.Ct. 445, 453, 88 L.Ed.2d 405 (1985); Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981).


Petitioner argues that his execution of the form provided to him by the Public Defender's office was sufficient to invoke his right to counsel and to thwart any further police-initiated questioning, thereby rendering inadmissible the statements he gave at the August 29th interrogation. Our analysis of this claim must begin with a review of Miranda and its progeny.


In Miranda v. Arizona, 384 U.S. 436, ...

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