Owen v. State of Ala., 87-7328

• Decision Date: 13 July 1988
• Docket Number: No. 87-7328,87-7328
• Citation: 849 F.2d 536
• Parties: Donald L. OWEN, Petitioner-Appellee, v. STATE OF ALABAMA, Willie E. Johnson, Warden, Respondents-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 536

849 F.2d 536

Donald L. OWEN, Petitioner-Appellee, v. STATE OF ALABAMA, Willie E. Johnson, Warden, Respondents-Appellants.

No. 87-7328.

United States Court of Appeals Eleventh Circuit.

July 13, 1988.

Donald Siegelman, Atty. Gen., Rivard Melson, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellants.

Thomas M. Haas, Christopher Knight, Mobile, Ala., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before HILL and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit judge.

JOHNSON, Circuit Judge:

In this case, the State of Alabama ("the State") appeals from the district court's order granting Donald Owen's petition for a writ of habeas corpus pursuant to 28 U.S.C.A. Sec. 2254. We affirm.

I.

On July 31, 1981, Owen was convicted by a Mobile County jury for the capital murder of an on-duty, uniformed police officer. He was sentenced to life in prison without parole. The Alabama Court of Criminal Appeals affirmed Owen's conviction and sentence. Owen v. State, 418 So.2d 214 (Ala.Crim.App.1982), cert. denied (Ala.1982).

On February 14, 1985, Owen filed a petition for habeas corpus, alleging inter alia that his confession to killing the police officer was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The district court granted the petition and issued the writ, contingent upon the State's failing to retry Owen.

The relevant facts follow. At approximately 2:14 A.M. on April 8, 1980, a Chickasaw, Alabama, police officer was killed by two shotgun blasts at the scene of a traffic stop. Officers who arrived on the scene shortly after the shooting found two spent shotgun shells and a police department "ticket book" near the victim's body. A nearly completed speeding ticket in the book was made out to Owen. The ticket included Owen's name, address, date of birth, and license plate number. The defendant's driver's license was also found at the scene. Owen, 418 So.2d at 217.

At approximately 3:00 A.M., the police arrived at Owen's home. After verifying that the license plate on his car matched the number written in the victim's "ticket book," they arrested Owen. While searching the house for any armed accomplices, the police discovered a .12 gauge shotgun and a box of shotgun shells which matched the type of shells found beside the victim. The weapon had been fired recently and ballistics tests later demonstrated that the shells found at the scene had been fired from the shotgun found in Owen's house. Id. at 217-18.

After arresting Owen, the police officers began to read the defendant his Miranda warnings. Owen interrupted them, saying, "I know my damn rights." Id. at 218. At the police station, Sgt. Jack Creekmore read Owen his rights again. Creekmore stated that, when he informed Owen of the defendant's right to have an attorney appointed, the defendant said, "I think I'll let ya'll [sic] appoint me one." Id. Creekmore then read the remaining Miranda warnings and asked the defendant if he understood his rights. Owen replied that he did, and he refused to sign the waiver of rights form. Id.

After this exchange, Creekmore questioned the defendant about the crime, and Owen confessed. The defendant stated that the victim had stopped him for speeding, that the officer insisted on citing Owen for a violation, and that Owen became infuriated and shot the victim. Creekmore testified that Owen said:

It seemed like I saw him go for his gun. I kept waiting for [sic] to get hit. I shot twice and pumped the gun and clicked it. It wouldn't shoot no more. There were just two shells in the gun, that's all ... I just shot twice. If I had a thousand in there I would have shot a thousand. Maybe this will teach them a lesson. They ought to know better than to have just one man in a car on patrol. Now, maybe they will hire some more. I was in law enforcement for four years, you know.

Id. at 219.

Creekmore further testified that, at approximately 7:30 or 8:00 A.M., the defendant said to the district attorney "something along the lines of 'can I call my lawyer now' or something to that effect, or 'I want my lawyer now.' " At that point, the district attorney stopped questioning Owen.

At trial, Owen raised an insanity defense. He presented psychiatric testimony, and the psychiatrist related details of the shooting as told to him by Owen. Owen's ex-wife testified that Owen had telephoned her on the night of the shooting and that he told her that the police officer had left the defendant standing between the two cars for a long time, that the defendant had "clicked," that he did not remember shooting the officer but when he regained his composure he was pumping an empty gun, and that "[however] many bullets were in the gun was how many times he shot him."

Owen's motion to suppress the confession obtained by the police was denied. In his petition for habeas corpus, he argued that the failure to suppress was error because the confession was obtained in violation of Miranda. The federal magistrate agreed and the district court adopted the magistrate's recommendation as the opinion of the court. From this decision, the State appeals.

II.

A.

The State argues that the district court erred in granting Owen's petition for habeas corpus. It claims that the totality of the circumstances indicates that Owen was not attempting to invoke his right to counsel during the police station interrogation.

The Fifth Amendment requires that, when a person requests an attorney during a custodial interrogation, all questioning must cease until an attorney is present. Miranda, 384 U.S. at 474, 86 S.Ct. at 1628; Edwards, 451 U.S. at 484, 101 S.Ct. at 1884; United States v. Johnson, 812 F.2d 1329, 1331 (11th Cir.1986). In Edwards, the Supreme Court held that:

when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted). The Supreme Court has referred to Edwards as establishing a "rigid prophylactic rule." Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984) (per curiam) (citing Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979)).

The framework developed in Edwards is explained more fully in Smith. In Smith, the police read the accused his Miranda warnings and asked the defendant if he understood his right to have an attorney present during questioning. Smith responded, "Uh, yeah. I'd like to do that." 469 U.S. at 93, 105 S.Ct. at 491. The interrogating officer then finished reading Smith his rights and asked if Smith wanted to talk to him without a lawyer being present. Smith answered, "Yeah and no, uh, I don't know what's what, really." Id. Smith then agreed to talk to the officer. Smith subsequently incriminated himself and ultimately confessed. Upon still further questioning, he insisted that he wanted a lawyer. After this second request, the interrogation ceased. Id. at 94, 105 S.Ct. at 492. The Supreme Court held that Smith had invoked his right to counsel by his first request. More generally, the Court stated that "an accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself." Id. at 100, 105 S.Ct. at 495 (emphasis in original).

The facts of the present case are very similar to those in Smith. Owen's statement, "I think I'll let y'all appoint me one," made in response to the Miranda warning concerning the right to counsel is arguably sufficient to invoke the right. The settled approach to questions of waiver requires courts "to give a broad, rather than a narrow interpretation to a defendant's request for counsel." Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986). This Court must "presume that the defendant requests the lawyer's services at every critical stage of prosecution." Id. The fact that the interrogation continued and the defendant confessed before asking for a lawyer again is no more significant here than it was in Smith. In one sense, the present case is an even clearer Miranda violation because, unlike the interrogating officer in Smith, Sgt. Creekmore did not seek to clarify the defendant's initial request by asking Owen a second time if he wanted an attorney. Instead, Creekmore proceeded to interrogate the defendant immediately after reading the Miranda rights.

Even if we were to find that Owen's statement was not a clear invocation of the right to counsel, it qualifies, at a minimum, as an equivocal request for an attorney. This Court employs an equally "rigid prophylactic rule" in such situations. When a defendant makes an equivocal request for an attorney during a custodial interrogation, "the scope of that interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it is clarified." Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979) (emphasis in original); Nash v. Estelle, 597 F.2d 513, 517 (5th Cir.) (en banc), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). Any statement taken by the state after the equivocal request for counsel is made, but before it is clarified as an effective waiver of counsel, violates Miranda. Thompson, 601 F.2d at 771-72.

After Owen...