597 F.2d 513 (5th Cir. 1979), 75-3772, Nash v. Estelle

Docket Nº:75-3772.
Citation:597 F.2d 513
Party Name:Ira NASH, Jr., Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellant.
Case Date:June 21, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 513

597 F.2d 513 (5th Cir. 1979)

Ira NASH, Jr., Petitioner-Appellee,

v.

W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellant.

No. 75-3772.

United States Court of Appeals, Fifth Circuit

June 21, 1979

Page 514

John L. Hill, Atty. Gen., John Pierce Griffin, Asst. Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Joe B. Dibrell, Jr., Chief, Enforce. Division, Robert E. DeLong, Jr., Asst. Attys. Gen., Austin, Tex., for respondent-appellant.

Michael A. Hatchell, Tyler, Tex. (Court-appointed), for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges. [*]

CHARLES CLARK, Circuit Judge:

Ira Nash, Jr., was convicted in a jury trial of murder with malice and sentenced to imprisonment for one hundred years. The district court, without holding an evidentiary hearing, granted Nash's petition for a writ of habeas corpus on the grounds that a written confession introduced against Nash had been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964). A panel of this court reversed the grant of habeas corpus in a 2-1 decision. Nash v. Estelle, 560 F.2d 652 (5th Cir. 1978). On rehearing en banc, we reverse the grant of habeas corpus relief.

I.

Henry Moore, a taxi driver, was found shot to death in his cab on February 20, 1969, on an unimproved road near the outskirts of Tyler, Texas. Moore's watch and money were missing. A witness placed the petitioner, Ira Nash, in Moore's cab shortly before Moore's body was discovered.

Nash was arrested on May 26, 1969, pursuant to a warrant, and was brought before a magistrate and informed of his Miranda rights. While in the custody of the deputy sheriff, Nash orally confessed to the murder

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of the cab driver. The oral confession was not introduced at Nash's state trial and is not in dispute here. On the morning of June 2, 1969, Nash was brought into the office of Assistant District Attorney F. R. Files, Jr., to discuss the impending murder charge. During the course of their tape recorded conversation Nash again confessed to the murder; he later signed a written statement prepared from that recorded conversation. The next day Nash and Files drove to the murder scene and Nash confessed yet a third time to his crime. A written statement derived from that inspection was prepared and it too was signed by Nash.

II.

The dispute on appeal is whether District Attorney Files violated Nash's right to the presence of counsel during the course of their initial June 2 conversation. Resolution of the issue turns on the interpretation to be placed on the following dialogue between Nash and Files:

FILES: Ira, my name is Buck Files. Files. It is written right here where you can see it. I work up here in this office. I am a lawyer. I want to talk to you this morning, if you wanted to talk to me. Before we talk, did you ever play any football? Baseball, or anything like that? Did you ever watch it played?

NASH: I played a little in High School.

FILES: You know, every ball game has some rules that you got to play by. Well, one of the rules is, of course, that I've got to tell you the same thing that that Judge told you the other day, before we can have any talking. You understand?

NASH: Yes, sir.

FILES: Please be sure and speak up loudly enough where that microphone can hear. Pull your old chair in a little bit. Okay. Now, before we start, let me tell you something. If you want to go to the bathroom, smoke a cigarette, you want some coffee, you let me know, because there is no problem on doing it. Now, the Judge read the whole pink paper to you the other day, and it is just a rule that I need to go over the same thing with you again. You understand that you have the right to remain silent; that anything that you say can and will be used against you in a Court of Law?

NASH: Yes, sir.

FILES: You understand?

NASH: Yes, sir.

FILES: You have the right to talk to a lawyer and have him present with you while you are being questioned. You understand that, don't you?

NASH: Yes, sir.

FILES: If you can't afford to hire a lawyer, one will be appointed to represent you before any questioning, if you want one. You understand that, don't you?

NASH: Yes, sir.

FILES: And you can end this interview at any time. You understand?

NASH: Yes, sir.

FILES: If you get tired of talking to me, if you don't like something I say, you don't like it, you just don't like anything about it, you can just tell me to be quiet, that you don't want to talk to me any more. You understand?

NASH: Yes, sir.

FILES: Now, I want to talk to you about this shooting, where the taxicab driver got shot. This is what I am interested in. I am not interested in burglaries you may have committed some place. I'm not interested in any robberies. I am not interested in marijuana. I'm interested in that taxicab shooting. You understand?

NASH: Yes, sir.

FILES: Do you want to talk to me about this?

NASH: Yes, sir.

FILES: You understand everything I've told you?

NASH: Yes, sir.

FILES: And nobody downstairs has threatened you in any way to get you to come up here and talk to me?

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NASH: No, sir.

FILES: Be sure and speak up loudly.

NASH: No, sir.

FILES: No one has promised you anything if you would come up and talk to me, have they?

NASH: No, sir.

FILES: You understand that nobody can threaten you and nobody can promise you anything. You understand that, don't you?

NASH: Yes, sir.

FILES: I've got a form here. I just read you the top half of it about the right to remain silent, a lawyer, end the interview and all that. And down here at the bottom it says, "I have been warned about my rights by" and there is a blank where we can fill in my name. And then this thing says, "I understand that I don't have to tell him anything and what I do say can be used against me in Court. I do not want to have a lawyer present at this time just what you told me, up here.

NASH: Yes, sir.

FILES: Now, if you want to talk to me about this thing, it's just one of the rules I need you to fill in where it says that, and if you understand what I told you this is sort of like going over it 17 times, but it is just a rule. If you understand that you don't have to tell me anything and what you do say can be used against you in Court, and if you don't want to have a lawyer present right now, then I need you to sign this. Okay?

NASH: Yes, sir.

FILES: Oh, let's see if we can find a fountain pen. Here's one. If you will put my name down there on this line just like it's written. How far did you go in school, Ira?

NASH: I went to a senior, but I didn't march through.

FILES: Where did you go to school? Emmett Scott?

NASH: I went to school in Dallas.

FILES: What school up there?

NASH: I went to Madison for a while, and then I went to Lincoln. Lincoln High.

FILES: F-i-l-e-s. I haven't heard you read. Just to show me that you can read, I want you to read that thing out loud to me there.

NASH: I don't read too well, you know.

FILES: Let's see what you can do.

NASH: "I understand that I do I don't have to tell him anything, and what I say can be used against me in Court. I do not want to I mean I do not want to have a lawyer present in Court, I mean at this time.

FILES: Then the place under that is

NASH: If I want a lawyer present, I just put down I want him present?

FILES: Please just tell us about it. Any time we are talking and you decide that you need somebody else here, you just tell me about it and we will get somebody up here.

NASH: Well, I don't have the money to hire one, but I would like, you know, to have one appointed.

FILES: You want one to be appointed for you?

NASH: Yes, sir.

FILES: Okay. I had hoped that we might talk about this, but if you want a lawyer appointed, then we are going to have to stop right now.

NASH: But, uh, I kinda, you know, wanted, you know, to talk about it, you know, to kinda, you know, try to get it straightened out.

FILES: Well, I can talk about it with you and I would like to, but if you want a lawyer, well, I am going to have to hold off, I can't talk to you. It's your life.

NASH: I would like to have a lawyer, but I'd rather talk to you.

FILES: Well, what that says there is, it doesn't say that you don't ever want to have a lawyer, it says that you don't want to have a lawyer here, now. You got the right now, and I want you to know that. But if you want to have a lawyer here, well, I am not going to talk to you about it.

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NASH: No, I would rather talk to you.

FILES: You would rather talk to me? You do not want to have a lawyer here right now?

NASH: No, sir.

FILES: You are absolutely certain of that?

NASH: Yes, sir.

FILES: Go ahead and sign that thing.

In granting Nash's habeas petition, the district court ruled that Nash had invoked his constitutional right to the presence of counsel at the interrogation which produced his first written confession and that as a matter of law that right to counsel could not be waived.

III.

United States v. Priest, 409 F.2d 491, 493 (5th Cir. 1969), held:

Where there is a request for an attorney prior to any questioning, as in this case, a finding of knowing and intelligent waiver of the right to an attorney is impossible. . . . (T)he suspect has an absolute right to delay interrogation by requesting counsel. If such a request is disregarded and the questioning proceeds, any statement taken thereafter cannot be a result of waiver but must be presumed a product of compulsion, subtle or otherwise.

We construe Priest to bar inquiry as to waiver when, prior to any questioning, the suspect makes an unequivocal request for an attorney's presence, as was done in Priest...

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