Biddy v. Diamond

• Decision Date: 18 July 1975
• Docket Number: No. 74-2385,74-2385
• Citation: 516 F.2d 118
• Parties: Carolee BIDDY, Petitioner-Appellant, v. Fred DIAMOND, Sheriff, Jackson County Jail, and Jack Reed, Warden, MississippiPenitentiary, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 118

516 F.2d 118

Carolee BIDDY, Petitioner-Appellant, v. Fred DIAMOND, Sheriff, Jackson County Jail, and Jack Reed Warden, MississippiPenitentiary, Respondents-Appellees.

No. 74-2385.

United States Court of Appeals Fifth Circuit.

July 18, 1975.

Harry L. Kelley, Jackson, Miss., F. Lee Bailey, Mark J. Kadish, Boston, Mass., John R. Poole, Jackson, Miss., for petitioner-appellant.

A. F. Summer, Atty. Gen., Timmie Hancock, Karen Gilfoy, Asst. Attys. Gen., Jackson, Miss., for respondents-appellees.

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

Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.

RONEY, Circuit Judge:

Petitioner, Carolee Biddy, was convicted in a Mississippi state court of manslaughter of her six-year old stepdaughter. The facts of the case are recited in some detail in the opinions of the Supreme Court of Mississippi affirming the conviction and denying the petition for rehearing at Biddy v. State, 277 So.2d 115 (Miss.1973).

From the denial of a petition for writ of habeas corpus, after a full evidentiary hearing, petitioner presents essentially two appeal issues: first, whether admissions and conduct of appellant, used against her at the trial, were induced by the police in violation of her Miranda rights, and her constitutional rights not to testify against herself and to have effective assistance of counsel; and second, whether petitioner's constitutional right to due process was violated by alleged prosecutorial suppression of evidence, four photographs which were withheld by the state from discovery but which were introduced at trial. Finding no error, we affirm.

We are at once met with confusion as to the facts of the case because of the failure of the district court to resolve some apparent conflicts in the evidence and to reflect in its opinion specific facts which the appellant indicates to be critical to the success of her petition. We have made a thorough review of the state court record, the testimony before the district court, and the extensive briefs and oral argument, however; and have concluded that, even with the inadequacy of the district court's opinion, the court cannot be held to be clearly erroneous as to the controlling facts, and that it was not in error as a matter of law in denying the petition for writ of habeas corpus. In other words, we have approached this case from the standpoint of whether, assuming the facts to be as oriented by the appellant but without the conclusory or judgmental overlay given them in appellant's brief, there is any base upon which to reverse the district court's refusal to grant the petitioner relief from the state court conviction.

A brief outline of the facts of the case will furnish sufficient base for an explanation of our decision. A full recitation as to all the details of the case would serve no useful purpose.

Early on the morning of December 3, 1970, petitioner called the Jackson Police Department to report the disappearance of Mona Biddy, her six-year old, mentally retarded stepdaughter. An extensive search for the child was conducted by the police, which eventually involved various other law enforcement officers of surrounding counties, three or four hundred National Guardsmen, and many volunteer civilians. On December 8, five days after her reported disappearance, Mona's body was found on the water's edge at a reservoir, about thirteen miles from the Biddy residence.

Wesley Reeves and Harry Price, the detectives assigned by the Jackson Police Department to conduct the investigation into Mona's disappearance, were in close contact with the Biddy family during the following weeks. On December 15, petitioner agreed to accompany these officers to police headquarters in order to identify an item of clothing apparently worn by Mona at the time of her disappearance. After the clothing had been identified, petitioner was asked if she would be willing to talk to the detectives about the details of Mona's disappearance. She agreed to do so and was taken to a conference room, accompanied by Reeves, Price, and a county attorney named Tom Zebert. She was then advised of her Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), and signed a written waiver indicating that she understood those rights. Reeves, Price, and Zebert each testified that they were convinced that she understood her rights and that her waiver was voluntary. In response to questioning on this occasion, she denied any involvement in Mona's disappearance.

Later that day, prior to taking a polygraph test, petitioner was again advised of her rights and she signed a second waiver form. She further evidenced her understanding of her rights by asking for "her lawyer" during the administering of the polygraph test. Upon that request, the test was halted and petitioner was questioned no further. That evening Detectives Reeves and Price stopped by the Biddy home and were advised by an attorney-friend of the Biddys, Charles Wright, that this was neither the time nor place for further questioning of petitioner. Accordingly, they departed without talking to Mrs. Biddy about Mona's disappearance.

During the next ten days, although the detectives did not further pursue questioning petitioner about Mona's disappearance, they were, on at least two occasions, called to the Biddy residence to investigate rather bizarre incidents involving petitioner and her family. On the evening of December 16, they investigated a report that Mrs. Biddy had been attacked and stabbed in the hip by an unknown assailant. They received another call from the Biddy home on the night of December 26. It was reported that petitioner's two and one-half year old daughter, Candice, had been abducted. By the time the detectives arrived at the Biddy residence, the child had been found by Mr. Biddy near a ditch in the backyard. The detectives found little evidence to bear out petitioner's story regarding each incident and concluded that Mrs. Biddy's accounts were "illogical." Mrs. Biddy later admitted that she staged both incidents.

On December 27, the Biddys were asked to come to police headquarters before they left on a trip to Georgia to visit Mr. Biddy's parents. Before leaving their house, and in the presence of the police officers, Mr. Biddy asked his business partner, Mal Sims, to call their attorney, Charles Wright, and ask him to meet them at the police station. Sims complied with the request.

At the police station, the detectives separated the two and talked with Mr. Biddy about several things that petitioner had told them, which they considered to be untrue. About this time Attorney Wright arrived and stated that he was ill and would summon another attorney. While Mr. Biddy was talking to the attorney, the detectives indicated they might want to question Mrs. Biddy and asked her, "Do you understand your rights?" To this she responded that she understood them. Then Mr. Biddy came in and discussed several things with petitioner with the detectives present. During that discussion, she made the crucial statement to him that she had found the child dead from having swallowed Liquid Plumr and, fearing that someone would blame her for it, had taken the body to the reservoir. After this statement she was booked for murder. Subsequently, the attorney summoned by Wright arrived and told petitioner not to talk to the police unless he was present. The next morning she took the police to the reservoir and identified the place where she had left the body. It was the same place where the body had been found.

Petitioner makes five separate contentions, under her general Miranda attack, on the use at trial of the statement she made on December 27 and her showing, on December 28, the place at the reservoir where she had left the child's body. Parenthetically, we have noted petitioner's complaint that the district court was in error in stating that nothing told to the police on December 27 was of any aid or benefit to the state, that the record did not indicate that anything she said was offered at the trial, and that her actions on December 28 were of no assistance in the state's case. These statements were clearly erroneous, but do not seem to have affected the district court's consideration of the controlling issues in the case. For the purposes of considering this appeal, we assume that the use of petitioner's statements and conduct on December 27 and 28 in the state trial was crucial to the successful prosecution and conviction of the petitioner.

The first two of petitioner's five points need not be addressed because, regardless of their merit, they would not control the outcome of this appeal. First, petitioner contends that the waivers signed on December 15 of her Sixth Amendment rights were vitiated in view of her later request for a lawyer, and that in any event the waivers were "stale" by December 27 when she made the statements admitted at trial. Our decision does not depend upon the continued legal effectiveness of those waivers.

The next question posed by petitioner is whether the oral warning, framed as a question as to whether she remembered her rights on December 27, just before she made the damaging statement, was an effective Miranda warning, in light of her request for a lawyer on December 15. We think that it was.

The critical legal question is whether the overall activity of the police sufficiently comports with the requirements concerning the Miranda warnings to insulate the conduct and admissions against suppression.

It is clear that when a person knows her rights, and has even exercised the right to counsel, talking with counsel, later voluntary admissions can constitute a waiver of the rights to counsel and to remain silent. United States v. Brown, 459 F.2d 319 (5th Cir. 1971), cert. denied, 409 U.S. 864, 93 S.Ct. 155, 34 L.Ed.2d 111 (1972). The question is whether the full...