969 F.2d 391 (7th Cir. 1992), 91-1080, Bobo v. Kolb

Docket Nº:91-1080.
Citation:969 F.2d 391
Party Name:Tommy L. BOBO, Petitioner-Appellant, v. Darrell A. KOLB, Superintendent, Waupun Correctional Facility, Respondent-Appellee.
Case Date:July 22, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 391

969 F.2d 391 (7th Cir. 1992)

Tommy L. BOBO, Petitioner-Appellant,

v.

Darrell A. KOLB, Superintendent, Waupun Correctional

Facility, Respondent-Appellee.

No. 91-1080.

United States Court of Appeals, Seventh Circuit

July 22, 1992

Argued Jan. 21, 1992.

Page 392

Gary L. Starkman, Steven Rissman (argued), Ross & Hardies, Chicago, Ill., for petitioner-appellant.

Donald J. Hanaway, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen. (argued), Wisconsin Dept. of Justice, Madison, Wis., E. Michael McCann, Milwaukee, Wis., for respondent-appellee.

Before POSNER, EASTERBROOK, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Appellant Tommy Lamont Bobo was convicted in Wisconsin state court of the murders of his girlfriend and daughter. After exhausting his state remedies, he filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Mr. Bobo alleges that certain incriminating statements he made while in custody were taken in violation of his Miranda right to silence and that he was denied the effective assistance

Page 393

of counsel during his interrogation. The district court denied the petition. For the following reasons, we affirm.

I

BACKGROUND

  1. Facts

    At approximately 11:45 a.m. on April 4, 1984, Milwaukee police detective Lemoyne Richardson arrived at the house of Mrs. Jeannetta Robinson to investigate the disappearances of her daughter, Cheryl Robinson, and her granddaughter, Jeannetta Robinson. At the house, Detective Richardson met Mr. Bobo, who was Cheryl's boyfriend and Jeannetta's father. Mr. Bobo accompanied Detective Richardson to the police station and spent most of that afternoon answering questions about his activities the prior evening with Cheryl and Jeannetta. During the course of his conversation with the police--at approximately 2 p.m.--Mr. Bobo was advised of his constitutional rights. However, he did not invoke these rights and made various statements.

    Later that afternoon, the bodies of Cheryl and Jeannetta Robinson were found in an automobile. Subsequently, at approximately 6:50 p.m., Detective Richardson placed Mr. Bobo under arrest for the murders and read him the Miranda warnings. Mr. Bobo answered "yes" when asked if he understood his rights and "no" when asked if he had any questions concerning his constitutional rights. However, when Detective Richardson inquired if he was willing to waive those rights and make any statements, Mr. Bobo remained mute. Detective Richardson then ended the interview and took Mr. Bobo to be booked.

    At 10:05 p.m. the same evening, Detective Howard Sobczyk, who apparently was unaware that Mr. Bobo had been mute during his interview with Detective Richardson, met with Mr. Bobo in an interrogation room. At the start of this session, Detective Sobczyk advised Mr. Bobo of his rights, and asked if he understood each of them. Mr. Bobo answered that he did. Detective Sobczyk then asked if Mr. Bobo wanted to consult with an attorney. Mr. Bobo replied no. When asked if he wanted to answer questions, Mr. Bobo replied that he would.

    In the afternoon of the following day, April 5, 1984, Attorney Jimmie Davison arrived at the Detective Bureau and asked to talk with Mr. Bobo. Mr. Davison was a friend of Mr. Bobo's family and of the victims' family, and he was also representing Mr. Bobo on other unrelated matters. Mr. Davison held an interview with Mr. Bobo lasting ten to fifteen minutes. When Mr. Davison emerged from this interview, he told the detectives that he believed that he was going to represent Mr. Bobo, and also that the police could continue to interrogate Mr. Bobo.

    While Mr. Davison was speaking with Mr. Bobo, the police received a phone call from an attorney in the public defender's office stating that that office would represent Mr. Bobo and that he was not to be questioned further. However, after Mr. Davison's statement about representation of Mr. Bobo, the police called the public defender's office and informed it of Mr. Davison's representation. The police then recommenced questioning Mr. Bobo and he later stated that he had committed the murders. Later that same day, at 8:40 p.m., Mr. Bobo invoked his right to counsel.

    Mr. Bobo was charged with two counts of first degree murder. On May 25, 1985, Mr. Bobo was convicted of both charges, and he received a sentence of two consecutive life terms.

  2. Procedural Posture

    1. State court proceedings

    Prior to trial, Mr. Bobo moved to suppress the statements he made while in custody. He argued that they had been elicited in violation of his right to remain silent and his right to counsel. The trial court granted this motion in part. It found that Mr. Bobo had invoked his right to counsel at 8:40 p.m. on April 5--after he had implicated himself in the murders. Consequently, all statements made after that time were excluded from trial. However, the

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    court declined to suppress any statements made before that time; it found that Mr. Bobo had made them freely and had never invoked his right to remain silent. 1

    Following his conviction, Mr. Bobo, through counsel, filed a post-trial motion seeking, among other things, to suppress statements that he made after he had been visited by Mr. Davison. As the basis for this claim, Mr. Bobo contended that Mr. Davison's management of the police questioning was so deficient that it constituted a denial of the right to the effective assistance of counsel. The trial court denied this motion. It ruled that Mr. Bobo's goal was to suppress evidence, and that this sanction is inappropriate without some showing of police misconduct. Tr. D-9 at 18-20. After this ruling, the defendant asked to personally address the court and declared that there was no ground for the motion because Mr. Davison had not been representing him. 2

    Mr. Bobo appealed his conviction to the Wisconsin Court of Appeals, which affirmed in an unpublished opinion. With

    Page 395

    regard to the claim that the police extracted statements in violation of Mr. Bobo's right to remain silent, the court found that Mr. Bobo had never invoked that right before he asked for counsel on the evening of April 5. State v. Bobo, No. 86-0900-CR, slip op. at 9-10 (Wis.Ct.App. April 9, 1987) [139 Wis.2d 856, 407 N.W.2d 566 (table) ]. Consequently, any statements made before that time were not taken in violation of his rights. The court denied Mr. Bobo's ineffective assistance of counsel claim on strictly procedural grounds. Prior to the conclusion of the post-trial hearing in which the claim was argued, Mr. Bobo stated that he had not wished this claim to be brought because Mr. Davison had never been his counsel. As a result of this statement, the court of appeals found it

    inconsistent to raise the issue of ineffective assistance of counsel, when Bobo expressly did not wish to have the issue raised and he also stated that Davison was "not my counsel at that present time, and he was not representing me." We conclude that Bobo cannot now claim that he was denied the right to effective assistance of counsel.

    Id. at 16-17. The Wisconsin Supreme Court denied Mr. Bobo's petition to review the decision of the court of appeals.

    2. Federal court proceedings

    Having exhausted his state remedies, Mr. Bobo filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. In the district court, Mr. Bobo pressed two of the claims that he made to the state courts--first that the police had violated his right to remain silent and, second, that he was denied effective assistance of counsel. The district court denied relief in an unpublished opinion and order. Bobo v. Kolb, No. 88-C-394 (JPS), slip op. at 14 (E.D.Wis. Nov. 15, 1990). With regard to the right to silence claim, the district court relied upon the trial court's finding that Mr. Bobo had never explicitly invoked his right to remain silent. Id. at 5-11. The court then described Mr. Bobo's silence after Detective Richardson gave him his Miranda warnings as a possibly equivocal invocation of his rights. Id. at 12. However, the court found that the police acted properly in the face of this silence by immediately stopping the interview and then continuing it only after Mr. Bobo explicitly stated that he wished to answer questions. Id. The district court rejected the ineffective assistance of counsel claim on several grounds, concluding, first, that Mr. Bobo's disavowal of it before the state trial court prevented review on habeas; second, that no factual predicate supported the claim; and, third, that no legal authority supported finding a right to effective counsel at interrogation. Id. at 13-14.

    II

    ANALYSIS

    Mr. Bobo raises two issues on appeal. First, he contends that his silence, after he received warnings from Detective Richardson at 6:50 p.m. on April 4, was either an explicit or equivocal invocation of his Fifth Amendment right to remain silent. Subsequent interrogations, beginning with the one by Detective Sobczyk three hours later, failed to honor this assertion, and all statements that he made in them should have been suppressed. Second, Mr. Bobo asserts that Mr. Davison's conduct deprived him of the effective assistance of counsel, which should render inadmissible all statements that he made after Mr. Davison's visit. We shall deal with each of these issues in turn.

  3. The Right to Silence

    A suspect who is subject to custodial interrogation enjoys the right to terminate questioning at any time. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694 (1966).

    Once warnings...

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