824 F.2d 836 (11th Cir. 1987), 84-5521, Christopher v. State of Fla.

Docket Nº:84-5521, 85-5220.
Citation:824 F.2d 836
Party Name:William D. CHRISTOPHER, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
Case Date:July 23, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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824 F.2d 836 (11th Cir. 1987)

William D. CHRISTOPHER, Petitioner-Appellant,

v.

STATE OF FLORIDA, Respondent-Appellee.

Nos. 84-5521, 85-5220.

United States Court of Appeals, Eleventh Circuit

July 23, 1987

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Joseph L. Daye, William H. Lefkowitz, John H. Pelzer, Thomas R. Bolf, Fort Lauderdale, Fla., for petitioner-appellant.

William E. Taylor, Katherine V. Blanco, Asst. Attys. Gen., Tampa, Fla., for respondent-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, KRAVITCH and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge:

William D. Christopher, a Florida prisoner under sentence of death, appeals the denial by the district court of his petition for habeas corpus and also the denial of his motion for relief from the judgment, filed pursuant to Rule 60(b), Fed.R.Civ.P. We hold that petitioner is entitled to habeas relief. Accordingly, we reverse.

I. BACKGROUND

Bertha Skillin and George Ahern were shot to death in their Florida home. Christopher, who had been living in the home of the couple with his teenage daughter, Norma Sands, up through the day of the murder, was arrested September 21, 1977, 1 in Memphis, Tennessee, on a Florida warrant. Norma, and Christopher's half-brother and half-sister, Pete and Pam Scott, were with Christopher at the time of his arrest and also were taken into custody. 2

The following evening, two Florida police officers, Lieutenant Mills and Officer Young, accompanied by several Memphis officers, began interrogating Christopher. Initially Christopher denied killing the couple, claiming that Ahern had killed Skillin and then had committed suicide. Christopher said that he had found the couple dead on the day of the murder and had fled because he had a criminal record and Ahern had used Christopher's gun, a gun Christopher said he had sold to Ahern. Subsequently, after at least two hours of questioning and, according to Christopher, several violations of his right to cut off questioning, Christopher confessed to both murders. The initial confession was not recorded; immediately afterwards the tape recorder was turned back on and Christopher repeated his confession. This confession

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was later played to the jury over Christopher's objection.

The State of Florida tried petitioner twice for the murders of Skillin and Ahern. The first trial, in May 1978, resulted in a hung jury and a mistrial. Following a change of venue, Christopher was retried in August, 1978. On August 18, 1978, Christopher was convicted by a jury of two counts of first degree murder. He was sentenced to death, as recommended by the jury. 3

The Florida Supreme Court affirmed the convictions and sentence on direct appeal. Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). Subsequently, on appeal from the denial of a 3.850 motion for post-conviction relief and on a petition for writ of error coram nobis, the Florida court again upheld the convictions and the sentence. Christopher v. State, 416 So.2d 450 (Fla.1982).

Christopher, raising eleven claims, 4 petitioned the federal district court for a writ of habeas corpus, as well as for a stay of execution. The district court granted the stay on June 23, 1982; on March 13, 1984, the court denied habeas relief without an evidentiary hearing. 5 Christopher v. State, 582 F.Supp. 633 (S.D.Fla.1984). Christopher appealed.

The petitioner subsequently filed with the district court a motion for relief from judgment pursuant to Rule 60(b), Fed.R.Civ.P., alleging that he did not testify at the hearing regarding suppression of the confession because the trial court refused to rule on the admissibility at trial of such testimony and his trial counsel did not know the law on this issue. The district court denied this motion. 6

Petitioner appealed and this court granted his motion for a consolidation. 7

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II. ADMISSIBILITY OF THE CONFESSION

Christopher claims that his confession should not have been admitted into evidence because it was obtained in violation of his right to remain silent, and thus was inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 8 The district court denied this claim, apparently on the ground that Christopher had not invoked his right to remain silent because he not only failed to clearly assert the right but thereafter continued to speak. 9 Christopher, 582 F.Supp. at 643-44. For the reasons set forth below, we reverse.

A.

In Miranda v. Arizona the Supreme Court established procedural safeguards to protect the constitutional rights of persons subject to custodial interrogation. The Miranda Court held that unless law enforcement officers give certain specified warnings prior to questioning a person in custody, 10 and follow certain specified procedures during the course of any subsequent interrogation, the state may not use in its case in chief any statement by the suspect, over the suspect's objection. 384 U.S. at 476-79, 86 S.Ct. at 1629-30; accord Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 1298, 84 L.Ed.2d 222 (1985); Michigan v. Mosley, 423 U.S. 96, 99-100, 96 S.Ct. 321, 324-25, 46 L.Ed.2d 313 (1975).

Among the procedureal safeguards established by the Miranda Court is the "right to cut off questioning." Miranda, 384 U.S. at 474, 86 S.Ct. at 1628. This right, established as a "critical safeguard" of the Fifth Amendment right to remain silent, Mosley, 423 U.S. at 103, 96 S.Ct. at 326, requires the police to immediately cease interrogating a suspect once the suspect "indicates in any manner, at any time ... during questioning, that he wishes to remain silent." 11 Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28 (emphasis added); Mosley, 423 U.S. at 100, 96 S.Ct. at 325; see Martin v. Wainwright, 770 F.2d 918, 923-24 (11th Cir.1985), modified, 781 F.2d 185, cert. denied, --- U.S. ----, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986).

Although established in Miranda, it was in Mosley, supra, that the Court delineated the scope of "the right to cut off questioning." Reiterating that this right serves as an essential check on "the coercive pressures of the custodial setting" by enabling the suspect to "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation," 423 U.S. at 103-04, 96 S.Ct. at 326, the Mosley Court reaffirmed Miranda 's requirement that "the interrogation must cease" when the person in custody "indicates in any

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manner" that he wishes to remain silent. 423 U.S. at 101-02, 96 S.Ct. at 325-26. This requirement was incorporated into the Court's holding that statements taken after a suspect indicates his desire to remain silent are inadmissible 12 unless the suspect's " 'right to cut off questioning' was 'scrupulously honored.' " See Mosley, 423 U.S. at 101, 103-04, 96 S.Ct. at 325-26; United States v. Bosby, 675 F.2d 1174, 1182 (11th Cir.1982) ("where a defendant asserts his right to remain silent ... law enforcement officers are required to cease questioning [him.]").

B.

The determination of whether a suspect's right to cut off questioning was scrupulously honored requires a case-by-case analysis. United States v. Hernandez, 574 F.2d 1362, 1369 (5th Cir.1978). 13 Applying the principles of Miranda and Mosley to the facts of this case, we conclude that here, in sharp contrast to Mosley, the police did not "scrupulously honor" petitioner's right to terminate the interrogation.

In Mosley the Supreme Court found that the suspect's right to cut off questioning was "scrupulously honored" because "the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation." 423 U.S. at 106, 96 S.Ct. at 327.

As is apparent from the following transcript of the confession, in the instant case the petitioner's rights were accorded no such respect:

CHRISTOPHER: Then I got nothing else to say. If you're accusing me of murder, then take me down there.

MILLS: You were accused when you came in here. You knew you were accused--

CHRISTOPHER: That's right. That's right.

MILLS: --you knew what you were accused of, and I told you what [your daughter] was accused of, so don't make out like you don't know what you're accused of.

CHRISTOPHER: Oh, ah,--I know what I'm accused of. I know that I'm accused of both murders.

MILLS: I told you awhile ago you were being charged with both murders.

CHRISTOPHER: Okay then. I got nothing else to say.

YOUNG: You mean it's all right as long as we accuse you of one?

MILLS: But all of a sudden when you're accused of two, you don't--

CHRISTOPHER: I'm not saying that, I know that, didn't I tell you awhile ago that I knew that ya, I was accused of both murders?

YOUNG: Yeah. You--you should know.

CHRISTOPHER: Okay then. What's the need of me saying anything then.

MILLS: What are you upset about?

CHRISTOPHER: You ask me? I'm upset about the fact that you're bringing my daughter up here, like I'm using her in this thing.

YOUNG: I'm asking you--

MILLS: I'm asking you to explain her actions in this thing? ...

(Emphasis added).

Here the interrogation did not cease immediately after Christopher first indicated that he wished to remain silent, and, in fact, continued despite Christopher's repeated invocations of his right of silence. Moreover, the police continued to interrogate Christopher on the very crimes that

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were the subject of the interrogation when Christopher invoked his right to silence. Accordingly, there can be no doubt that the officers violated...

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