State v. Burbine, 79-212-C

• Decision Date: 09 September 1982
• Docket Number: No. 79-212-C,79-212-C
• Citation: 451 A.2d 22
• Parties: STATE v. Brian BURBINE. A.
• Court: Rhode Island Supreme Court

Page 22

451 A.2d 22

STATE v. Brian BURBINE.

No. 79-212-C.A.

Supreme Court of Rhode Island.

Sept. 9, 1982.

Dennis J. Roberts II, Atty. Gen., Joel D. Landry, Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Paula Rosin, Asst. Public Defender, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a judgment of the Superior Court finding the defendant, Brian Burbine (Burbine), guilty of murder in the first degree and imposing a life sentence as required by statute. Prior to trial, Burbine sought to suppress three incriminating statements obtained from him by officers of the Providence police department. The sole thrust of this appeal relates to the denial of the motion to suppress.

On March 3, 1977, at about 7 a.m., Mary Jo Hickey (Mary) was found unconscious in a parking lot on Elmwood Avenue in Providence. She was taken to St. Joseph Hospital where she remained for a time and was then transferred to the Rhode Island Medical Center. She was treated there until March 25, 1977, when she died from injuries to the skull and brain resulting from bludgeon wounds inflicted by a large metal pipe which had been found near the scene of the attack.

The state called two witnesses, who testified that Burbine left Rhode Island and went to their house in Maine on March 4, 1977. Nancy Jean Sanders James (Nancy) stated that Burbine stayed with her and her brother, Donald Sparks (Sparks), for approximately one month. While he was in Maine, Burbine told Nancy that he had met Mary at a downtown Providence bar on the evening of March 2. Mary had bought him some drinks and then asked for a ride to her home. Burbine further stated that on the way to her house, he pulled into a parking lot and made advances to Mary. When the advances were resisted, Burbine slapped Mary "a time or two" and threw her out of the car. "[T]hat's all he knew." He stated that this had all happened "just before he came to Maine." Burbine told substantially the same story to Sparks, except that he stated to Sparks that Mary had blood on her as a result of his striking her. Burbine also informed Sparks that the next morning he had washed the blood from the interior of his automobile.

On June 29, 1977, the Cranston police arrested three men in connection with a charge of breaking and entering. One of the trio was Burbine; the other two were Sparks and a man named DiOrio. All three suspects were transported to the Cranston police headquarters. Detective Ferranti of the Cranston police two days earlier had received information from a confidential informant that a man named "Butch" who lived at 306 New York Avenue in Providence was responsible for the killing of Mary. He noted that Burbine and DiOrio had given 306 New York Avenue as their home address. Ferranti questioned DiOrio, who stated that Burbine was the only person living at that address who was called "Butch."

Armed with this information, Detective Ferranti informed Burbine of his Miranda rights, and at that time Burbine would not sign the waiver-of-rights form. However, Burbine did respond that he was the only person called "Butch" who resided at 306 New York Avenue. Ferranti left Burbine in the interrogation room and spoke with DiOrio and Sparks. Both men made statements implicating Burbine in the Providence homicide. Thereupon, Ferranti contacted Captain Milton Wilson of the Providence police department at about 6 p.m. Captain Wilson, along with Lieutenant Bernard Gannon and Detective Edward Trafford, proceeded to the Cranston police station for the purpose of questioning Burbine in regard to the killing of Mary. They arrived at approximately 7 p. m. and went to the Cranston detective division where they spoke with Detective Ferranti and then questioned Sparks and DiOrio.

At about 7:45 p. m., Burbine's sister, Sheila Ray, called the office of the public defender (without her brother's knowledge) to seek assistance for her brother who had previously been represented by Richard Casparian of the Public Defender's office in respect to another matter not related to the instant reasons for police custody. In fact, Burbine had missed an appointment with Mr. Casparian the afternoon of his arrest. Barbara Hurst, an appellate attorney, received the call and attempted to contact Mr. Casparian but was unable to reach him. She then called Allegra Munson, an assistant public defender, and informed Ms. Munson of the telephone conversation with Sheila Ray.

At approximately 8:15 p. m., Ms. Munson called the Cranston police station and asked that her call be transferred to the detective division. A male voice responded with the word "Detectives." Ms. Munson identified herself and asked if Brian Burbine was being held; the person responded affirmatively. Ms. Munson explained to the person that Burbine was represented by attorney Casparian who was not available; she further stated that she would act as Burbine's legal counsel in the event that the police intended to place him in a lineup or question him. The unidentified person told Ms. Munson that the police would not be questioning Burbine or putting him in a lineup and that they were through with him for the night. Ms. Munson was not informed that the Providence police were at the Cranston police station or that Burbine was a suspect in Mary's murder. The trial justice found as a fact that Ms. Munson did make the call, but further found that there was no collusion or conspiracy on the part of the police "to secrete [Burbine] from his attorney * * *."

Lieutenant Gannon testified that he explained the Miranda rights to Burbine and that Burbine waived the rights by signing a waiver-of-rights form. Thereafter, a signed confession was obtained from Burbine at approximately 10:20 p. m. on June 29. A second statement was taken at the police station at approximately 11:20 p. m. A waiver-of-rights form was executed in connection with the second statement. The Providence police obtained a third written statement from Burbine during the noon period of the following day following Burbine's presentation to the District Court on the breaking-and-entering charge. ¹

All five officers who were involved in Burbine's interrogation at the Cranston police station denied any knowledge of Ms. Munson's call. There was no evidence or finding that the Providence police detectives were aware of Ms. Munson's call.

After the third confession had been obtained, at the request of Detective Trafford, Major Leyden of the Providence police department called the Public Defender's office in order to obtain an attorney to represent Burbine in respect to a lineup. Thomas Luongo, Jr., an investigator in the office of the public defender, received the call and conveyed the information to attorney Casparian who went to the Providence police station and consulted with Burbine.

At the hearing on the motion to suppress, the trial justice found that Burbine had been thoroughly advised of his right to remain silent, that anything he said would be used against him, and of his right to retained or appointed counsel. He further found that Burbine was not coerced, threatened, nor promised any benefit in return for his statements. The trial justice concluded that Burbine signed waiver-of-rights-forms on three separate occasions and that when he did so, "he knowingly, intelligently, and voluntarily waived his privilege against self-incrimination. And also his right to counsel."

The defendant contends that all three confessions should have been suppressed on the ground that they were obtained in violation of defendant's right to counsel and his privilege against self incrimination. In order to place the issues raised into sharper focus, a short historical survey of the development of the modern doctrines relating to custodial interrogation will be helpful.

During the first five decades of the twentieth century, the Supreme Court of the United States groped toward a means of striking a balance between the societal need for police interrogation and the protection of the accused from undue coercive pressures. By virtue of the differing constitutional and supervisory responsibilities of the Court in respect to the federal as opposed to state judicial systems, a dual and separate approach was adopted.

In respect to the federal system of law enforcement, the Court utilized a federal statute and later federal rules of criminal procedure in order to shorten the interrogation. See Mallory v. United States, 354 U.S. 449, 452, 77 S.Ct. 1356, 1358, 1 L.Ed.2d 1479, 1482 (1957); McNabb v. United States, 318 U.S. 332, 343-44, 63 S.Ct. 608, 614-15, 87 L.Ed.2d 819, 825-26 (1943). It was thought by Justice Frankfurter and his colleagues that the shortening of interrogation and the requirement that a suspect be presented to a federal magistrate without "unnecessary delay" would reduce the evils of a secret interrogation process at police headquarters. It was further urged that the magistrate would warn the suspect of his right to remain silent and his right to counsel. The McNabb-Mallory rule did not purport to be a rule of constitutional dimension but was based upon the Court's supervisory power over the administration of federal criminal justice as well as in implementation of a federal statute in McNabb and, in the Mallory case, Rule 5(a) of the Federal Rules of Criminal Procedure. The Court did not purport to extend this rule of stringently shortened interrogation to the states.

Indeed, at that time the Court's review of state cases involving allegedly involuntary confessions was based upon a due-process "shock the conscience" test. ² The first case which resulted in the setting aside of a state conviction wherein a coerced confession had been obtained was Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). In that case the Court found that overt brutality and torture had produced the confession. This shocked the conscience of the Court...