U.S. ex rel. Church v. De Robertis

• Decision Date: 23 August 1985
• Docket Number: No. 84-2138,84-2138
• Citation: 771 F.2d 1015
• Parties: UNITED STATES of America, ex rel. Michael Kerry CHURCH, Plaintiff-Appellant, v. Richard De ROBERTIS, Warden & Attorney General of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1015

771 F.2d 1015

54 USLW 2133

UNITED STATES of America, ex rel. Michael Kerry CHURCH, Plaintiff-Appellant, v. Richard De ROBERTIS, Warden & Attorney General of Illinois,

Respondents-Appellees.

No. 84-2138.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 1985.

Decided Aug. 23, 1985.

Mary L. Mikva, Chicago, Ill., for plaintiff-appellant.

Terence M. Madsen, Office of Ill. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before FLAUM and EASTERBROOK, Circuit Judges, and DUMBAULD ^*, Senior District Judge.

DUMBAULD, Senior District Judge.

Appellant Michael Church, convicted of murder and armed violence after a trial in which a written statement which he prepared (under circumstances hereinafter described) constituted significant evidence against him, seeks release on habeas corpus. He maintains that his waiver of rights under Miranda ¹ is defective because the detectives did not tell him that a lawyer, who had been appointed for him in a pending case other than the murder investigation had asked Detective Arnold not to question Church, and that Detective Arnold had agreed to refrain. This raises a difficult question, one very closely related to that in Burbine v. Moran, 753 F.2d 178 (1st Cir.1985), cert. granted, --- U.S. ----, 105 S.Ct. 2319, 85 L.Ed.2d 838 (1985). We need not answer the question, however, because Miranda does not apply to this case. The rules of Miranda govern "custodial interrogation" by the police. The record of the case discloses no "interrogation," and therefore there is nothing under Miranda for Michael Church to waive, voluntarily or otherwise. We therefore affirm the judgment of the District Court denying Church's petition.

Appellant Michael Church and his younger brother Casey were arrested Friday evening, August 10, 1974, on charges of aiding and abetting their older brother Kelly to escape from prison.

Later it developed that Michael had suggested to the estranged wife of one Randall May that he knew someone who could kill her husband and make it appear to be an accident (by burning him in his car). Michael accompanied one Coffelt to May's apartment and was present while Coffelt brutally attacked May, and shot him when he tried to run away. Besides suggesting and being present at the murder, Michael kicked May once, and tied his hands behind his back with his belt, and walked behind him toward the car. At the door May tried to escape and was shot by Coffelt. Coffelt had escaped from prison at the same time as Michael's older brother Kelly. See People v. Church, 102 Ill.App.3d 155, 57 Ill.Dec. 679, 682-83, 429 N.E.2d 577, 580-81 (4th Dist.Ill.App.1981).

When Kelly was arrested on Saturday, August 11, 1974, he was permitted to speak with his parents who expressed concern that Casey, the youngest child, who had never been in jail before, was in trouble. Kelly assured them that he would find out what the situation was. That night he was put into the same cell with Casey.

Then on Sunday morning Kelly spoke with an officer at the jail and was put into a cell that evening with appellant. He told appellant that to get Casey out of trouble appellant should make a statement. If he did, Kelly said the police would put the three brothers in a cell together. The officers knew, at the time they put Kelly into Michael's cell, that he would try to persuade Michael to confess.

The detectives had talked to appellant twice; each time he invoked his rights and the detectives honored his request and ceased questioning him.

After Kelly had urged appellant to make a statement, Michael notified an officer that he wished to talk. The detectives in charge of the investigation were not at the police station on Sunday evening but came to the station in response to appellant's request. This was permissible under Miranda. If the suspect initiates a conversation with the police, they may ask further questions even though the suspect had previously invoked his right to counsel. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 2834-35, 77 L.Ed.2d 405 (1983).

After the detectives arrived and found out that Michael now wanted to confess, they again gave him the Miranda warnings. After they read to him his Miranda rights, he initialled each right, stated orally that he understood his rights, and signed a waiver. Appellant stated that he did not want an attorney. The officers gave him pencil and paper and then left. Michael wrote out an eleven-page confession. The confession exculpated Casey while inculpating Michael. Michael did the work. There was no interrogation. All the detectives furnished in this case was paper and pencil. This was not fundamentally different from a confession written out, at Kelly's urging, in the absence of the police and handed to them on their arrival.

Miranda relates only to "custodial interrogation." At the outset of Chief Justice Warren's opinion the issue dealt with is described as "the admissibility of statements obtained from a defendant questioned while in custody ..." (384 U.S. at 445, 86 S.Ct. at 1612, italics supplied). The Court sought to impose "a proper limit upon custodial interrogation." (Ibid., at 447, 86 S.Ct. at 1613, italics supplied). ² "Opportunity to exercise these rights must be afforded to him (the individual in custody being "subjected to questioning") throughout the interrogation." (Ibid., at 479, 86 S.Ct. at 1630). As the Court noted in Rhode Island v. Innis, 446 U.S. 291, 299, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), "not ... all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation." ³

Because Miranda applies only to "custodial interrogation," it makes no difference whether Michael's formal waivers of his Miranda rights before writing his confession were valid or ineffective, since there was no custodial interrogation in this case.

The District Court's opinion in this case states that "according to [Michael] and Kelly," the detectives "began questioning" Michael before handing him the paper and pencil, and "the officers accused [Michael] of lying." This would be interrogation, if it occurred. But the state courts chose not to believe this assertion. The state trial court concluded that the "detectives asked no questions of the Defendant. They simply gave him a supply of paper and a pen and told him he could write out whatever statement he wished to make." The appellate court summarized the encounter this way: "Defendant was advised that he had an attorney and was specifically asked if he wanted him called. Defendant replied, 'No. I want to give a statement.' At no time, however, was defendant apprised of the detective's conversation with his attorney or his instructions that the police not question the defendant. Church then started to give a verbal account, but the detective stopped him. They gave him pen and paper and left him alone to write his statement." People v. Church, 102 Ill.App.3d 155, 429 N.E.2d 577, 580, 57 Ill.Dec. 679, 682 (4th Dist., 1981).

The state courts' findings of historical fact bind the federal courts unless subject to attack on one of the grounds listed in 28 U.S.C. Sec. 2254(d). See Sumner v. Mata, 449 U.S. 539, 556-57, 101 S.Ct. 764, 773-774, 66 L.Ed.2d 722 (1981). These findings are not open to challenge; indeed they are not challenged at all. The only affidavit filed in this federal proceeding is by Kelly Church. Kelly states that he "pressured" Michael to give a statement and describes the encounter with the detectives this way: "Michael and I were brought down to a room with Officers Lindsey and Arnold and the officers gave Michael a waiver of rights form to sign. I again pressured Michael to sign the waiver form in order to help Casey. After Michael had written out his statement, I again pressured him to sign it and give it to the officer in order to help Casey." This affidavit does not mention any questioning by the detectives. Nothing in the papers filed in the district court suggests that the procedures used by the state courts to find the historical facts were defective. There is therefore no reason to go behind the state courts' description of the events.

Michael argues, however, that the detectives "interrogated" him by putting Kelly in his cell, knowing that Kelly would urge Michael to confess. Innis states that the Miranda rules come into play when a person is subjected to "questioning or its functional equivalent" and defines interrogation as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." 446 U.S. at 301, 100 S.Ct. at 1689 (footnotes omitted).

Putting Michael's brother in the cell was perhaps not routine procedure "attendant to arrest and custody," and the detectives knew there was a chance that Kelly would persuade Michael to confess. This does not mean, however, that putting Kelly in the cell was "interrogation." The words of an opinion such as Innis draw their scope from the concerns the Court addresses. The Court was concerned about official trickery. ⁴ It gave as examples the practice of coaching a witness to identify the suspect or a staged accusation by a "victim" of a fictitious crime in order to induce the suspect to confess to the real one, 446 U.S. at 299-300, 100 S.Ct. at 1689. See also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (putting a stool pigeon in suspect's cell...