753 F.2d 178 (1st Cir. 1985), 84-1554, Burbine v. Moran

Docket Nº:84-1554.
Citation:753 F.2d 178
Party Name:Brian K. BURBINE, Petitioner, Appellant, v. John MORAN, Respondent, Appellee.
Case Date:January 25, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 178

753 F.2d 178 (1st Cir. 1985)

Brian K. BURBINE, Petitioner, Appellant,

v.

John MORAN, Respondent, Appellee.

No. 84-1554.

United States Court of Appeals, First Circuit

January 25, 1985

Argued Nov. 6, 1984.

Page 179

Paula Rosin, Providence, R.I., for petitioner, appellant.

Anthony Delbonis, Sp. Asst. Atty. Gen., Providence, R.I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R.I., was on brief for respondent, appellee.

Before COFFIN and BOWNES, Circuit Judges, and WYZANSKI, [*] Senior District Judge.

COFFIN, Circuit Judge.

Petitioner Brian Burbine appeals the denial of his petition for a writ of habeas corpus. Burbine alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated by the failure of police to communicate to his attorney their plans to interrogate him and their failure to tell him that an attorney acting for him at the request of his sister had called to offer his services. Shortly after the call a written, inculpatory statement was obtained from him. This was followed by two others, all of which were used to convict him of murder. The District Court of Rhode Island held, Burbine v. Moran, 589 F.Supp. 1245 (D.R.I.1984), as did a Rhode Island Superior Court and the Supreme Court of Rhode Island, in a 3-2 decision, State v. Burbine, 451 A.2d 22 (1982), that Burbine's constitutional rights were not violated.

BACKGROUND

On the morning of March 3, 1977, Mary Jo Hickey was found unconscious in a parking lot in Providence, Rhode Island. Suffering from injuries to her head, apparently inflicted by a metal pipe found near the scene of the crime, she was hospitalized. Approximately three weeks later, she died.

On March 4, 1977, Burbine left Rhode Island to visit Nancy Jean Sanders James and her brother, Donald Sparks, in their home in Maine. During his stay Burbine told Nancy James that he had met Ms. Hickey in a bar in Providence on the evening of March 2, 1977, and had slapped her "a time or two" after they had driven to a parking lot and she had resisted his advances. Burbine told substantially the same story to Donald Sparks but added that there was some blood on Ms. Hickey when he left her and that he had washed blood from the interior of his automobile the next morning.

A few months later, at about 3:30 p.m. June 29, 1977, police in Cranston, Rhode Island, arrested and charged three men in connection with a breaking and entering. Burbine was one of them and Donald Sparks another. The third was a man named DiOrio. For purposes of interrogation, they were placed in separate rooms in the detectives' division in the basement of the Cranston police headquarters. It was learned that DiOrio and Burbine lived at

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306 New York Avenue. When Detective Ferranti of the Cranston police was informed of this fact, he recalled that he had been told two days earlier by a confidential informant that a man named "Butch" living at 306 New York Avenue was responsible for the death of Mary Jo Hickey. Between 5:00 and 6:00 p.m. Ferranti learned from DiOrio that Burbine was the only "Butch" living at that address. Detective Ferranti then went to the room where Burbine was being held. After Burbine confirmed that as far as he knew he was the only "Butch" residing at 306 New York Avenue, Ferranti informed him of his Miranda rights, but at this point Burbine refused to sign a waiver of rights form and refused to say anything further.

At about 6:00 p.m., after obtaining from DiOrio and Sparks statements implicating Burbine in the killing of Mary Jo Hickey, Ferranti called the Providence police to convey what he had discovered. At approximately 7:00 p.m., three officers of the Providence police, Detectives Bernard Gannon and Edward Trafford and their supervisor, Captain Wilson, arrived at the Cranston headquarters and went to the detective division, where they spoke first with Detective Ferranti and then with Sparks and DiOrio.

At approximately 7:45 p.m., Burbine's sister called the Office of the Public Defender to seek legal assistance for him. She asked for Assistant Public Defender Richard Casparian in particular and remarked that Burbine had missed an appointment with Casparian that afternoon, during which the two were to discuss an unrelated, pending charge against Burbine. As soon as Burbine's sister hung up, the person who took her call tried to reach Casparian. Once it was determined that he was unavailable, Allegra Munson, another Assistant Public Defender, was contacted and informed of the situation.

What transpired next is probably best summarized in the words of the Supreme Court of Rhode Island.

"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." State v. Burbine, 451 A.2d at 23-24.

Who at the headquarters was speaking to Ms. Munson has never been determined. All of the identified officers denied receiving or knowing about the call. Burbine was never told of Munson's call, her offer of assistance, or the information that was given her.

At approximately 9:00 p.m., Burbine was brought to the main room in the detective division where Ferranti and his immediate superior, Lieutenant Ricard, and the three Providence officers had gathered. After being advised of his rights, he was asked about the Hickey killing and, appearing "fidgety", denied involvement. He was then returned to the smaller room. About ten minutes later, Ferranti heard repeated banging on the door of that room and went to speak with Burbine. He was crying and said he was "disgusted", "sorry", and wanted to make a statement. Ferranti went to get two of the Providence officers, Detectives Gannon and Trafford, and the three of them brought Burbine to the main office to take a statement. The detectives then read Burbine his Miranda rights, ascertained that he understood what his rights were, and at about 9:30 p.m. obtained his signature on a waiver-of-rights

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form. 1 He was later described as having been "shaky, in tears", but as having spoken clearly. For the next fifty minutes Detective Gannon conducted the interrogation, typing his questions and Burbine's answers. At 10:20 p.m., Burbine signed a typed, four-page, inculpatory statement and Detective Ferranti "notarized" it.

Burbine was then returned to the smaller room and given food. Sometime between approximately 10:45 p.m. and 11:00 p.m., he said he had omitted some information and was returned to the main room. He was again read his Miranda rights and gave a second statement. This one was signed at 11:20 p.m.

Finally, at approximately noon the following day, June 30, 1977, having been taken to the Providence headquarters, Burbine gave a third inculpatory statement, this time to Detective Trafford. At 12:05 p.m., while this final statement was being taken, Trafford's superior, Major John Leyden, called the Office of the Public Defender to request the presence of an attorney for an identification lineup that was to follow. Later that day, Assistant Public Defender Casparian came to the Providence headquarters and assisted Burbine during the lineup.

At the subsequent hearing on Burbine's motion to suppress his three written statements, the Superior Court found that Ms. Munson did make the phone call, as described above, but also "that there was no collusion or conspiracy on the part of the police 'to secrete [Burbine] from his attorney....' " State v. Burbine, 451 A.2d at 24. It also found that Burbine was not threatened, coerced, or promised any benefits in exchange for his statements and that Burbine had "knowingly, intelligently and voluntarily waived" his right to counsel and his privilege against self-incrimination. Id. In accordance with these findings, the court denied Burbine's motion to suppress. Burbine was subsequently convicted of first degree murder on the basis of his three statements and the testimony of Nancy James, Donald Sparks, and other...

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