Cahill v. Rushen

• Decision Date: 02 December 1980
• Docket Number: Civ. No. S-78-603 LKK.
• Citation: 501 F. Supp. 1219
• Parties: James Thomas CAHILL, Petitioner, v. Ruth RUSHEN, Director, California Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of California

501 F. Supp. 1219

James Thomas CAHILL, Petitioner, v. Ruth RUSHEN, Director, California Department of Corrections, Respondent.

Civ. No. S-78-603 LKK.

United States District Court, E. D. California.

December 2, 1980.

COPYRIGHT MATERIAL OMITTED

Mark L. Christiansen, Deputy State Public Defender, Sacramento, Cal., for petitioner.

Shirley A. Nelson, Deputy Atty. Gen., Sacramento, Cal., for respondent.

OPINION AND ORDER

KARLTON, District Judge.

Petitioner, a state prisoner, seeks a writ of habeas corpus. 28 U.S.C. § 2254. He is confined as a result of a conviction for first degree murder and challenges that confinement alleging: (1) a confession obtained in violation of both his Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination was employed in securing his conviction, and (2) the prosecutor improperly argued that the jury should infer guilt from petitioner's post-arrest silence in violation of his Fourteenth Amendment right to due process of law.

FACTS

During the early morning hours of September 15, 1971, a survey crew discovered the body of Orville Scott lying beside a picnic table in the Lakeshore West Campground near Lake Shasta, California. Two days later petitioner and Alton Whitecotton were arrested in Colfax, California and charged with murder.¹ The officer in charge of the investigation, Captain James Carter of the Shasta County Sheriff's Department, questioned petitioner on the day of his arrest and the following day. On both occasions petitioner was given Miranda² warnings and waived his rights.

Petitioner and Whitecotton were arraigned on September 19 in Central Valley Justice Court on charges of first degree murder. On September 27, the day before a grand jury handed down an indictment, Captain Carter again talked to petitioner. After being advised of his Fifth Amendment rights, petitioner informed Captain Carter during the ensuing conversation that, although he desired representation, he was not represented by counsel. Captain Carter questioned petitioner the following day without advising him of his Miranda rights. Petitioner again informed Carter that he was not represented by counsel and desired at least one, possibly two attorneys, to handle his case but, as was the case during all of the interviews, he did not request the presence of an attorney. At that interview, petitioner agreed that after his trial he would tell his interrogator what happened at the campground.

At trial Alton Whitecotton testified against petitioner as an eyewitness. On November 20, the jury brought in a verdict of guilty; petitioner waived preparation of the Probation Report and was sentenced immediately. The following day Captain Carter had petitioner brought from the jail to his office. During the ensuing conversation petitioner made a full confession.³

On appeal, the California Court of Appeal held that the trial court erred in ruling as a matter of law that the eyewitness, Alton Whitecotton, was not an accomplice and reversed petitioner's conviction.⁴ A second trial ensued.

At petitioner's second trial, Alton Whitecotton again testified as an eyewitness. The last witness called by the prosecution was Captain Carter who testified to petitioner's confession. Petitioner was again convicted of first degree murder and the California Court of Appeal affirmed this second conviction. The California Supreme Court denied review.

THE CONFESSION AND THE SIXTH AMENDMENT

"Confessions are a proper element in law enforcement ... admissible in evidence," Miranda v. Arizona, supra, at 478, 86 S.Ct. at 1629, nonetheless, a confession must be excluded if it is taken in violation of an individual's privilege against self-in-crimination, id., or right to the assistance of counsel. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Although petitioner alleges a violation of both rights, I shall address the Sixth Amendment principles implicated in this case because I believe them dispositive.⁵

In Massiah v. United States, the Supreme Court held that "petitioner was denied the basic protection of his Sixth Amendment guarantee of a right to counsel when there was used against him at his trial evidence of his own incriminating words, which police had deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). In order to establish that he comes within the rule announced in Massiah, petitioner must demonstrate that his confession was "deliberately elicited ... at a time when he was clearly entitled to a lawyer's help." Id. at 204, 84 S.Ct. at 1201.

I. Sixth Amendment Right to Counsel

The threshold question confronting this court is whether the rule established in Massiah has any application when the defendant has been convicted and sentenced before he makes incriminating statements. Since the right to counsel had clearly attached⁶ and petitioner was represented by counsel, the applicability of Massiah may seem obvious. Indeed the California Court of Appeal, after noting that "adversary proceedings had long since commenced," People v. Cahill, 3 Crim. 8082 at 12 (Mar. 14, 1978) (unpublished opinion), proceeded to its resolution of the Massiah issue. Nonetheless, the fact that the confession sub judice was made subsequent to the entry of judgment and sentence raised questions in my mind as to the applicability of the Massiah rule. Accordingly, I requested further briefing from the parties on the issue.

The state argues that petitioner was not entitled to the benefits of the Massiah rule vis a vis his second trial until the Court of Appeal reversed his first conviction. Implicit in this contention is the idea that the Sixth Amendment protects the attorney/client relationship "at trial" and that the entry of judgment and sentence terminates the need to protect this relationship. Assuming the Sixth Amendment applies solely to "trials" (a question that need not be answered in this case), respondent has defined the duties of "trial" counsel too narrowly since "the trial attorney has an affirmative duty to protect his client's right to appeal by filing a notice of appeal, or by telling his client how the client can proceed on his own behalf." Gairson v. Cupp, 415 F.2d 352, 353 (9th Cir. 1969). See Miller v. McCarthy, 607 F.2d 854 (9th Cir. 1979); Riser v. Craven, 501 F.2d 381 (9th Cir. 1974) (en banc). Petitioner was sentenced on November 20, 1972, and a notice of appeal was filed on December 27, 1972.⁷ On November 21, the day the confession was obtained, the Sixth Amendment guaranteed petitioner the assistance of counsel since his attorney's "trial" duties had not yet been discharged.

Although respondent has not argued a functional distinction between pre and post trial counsel, such a distinction can be made. Thus it may be said that even if a Sixth Amendment right to counsel formally continues until the filing of a notice of appeal or until the defendant has been apprised of his appellate rights, the functional differences between the role of counsel before sentencing and his role after sentencing militate against application of the Massiah rule in this case. The argument would be structured as follows: Massiah seeks to protect the right of a defendant to the advice of counsel as it relates to the gathering and introduction of evidence at trial. Once judgment and sentence have been imposed, the function of the attorney changes even if a continuing legal relationship between the defendant and his attorney exists. This function includes marshalling an adequate record on appeal and arguing the prejudicial effect of alleged errors at the first trial. Permitting law enforcement to gather information from the defendant would not interfere with this relationship and thus Massiah should not apply. Since the argument originated with me I found it initially persuasive; now, however, I do not believe it correct.

Two basic flaws infect this analysis it fails to properly focus upon counsel's advisory role and the purpose of appeal. The present case is not an instance of law enforcement discovering further evidence of guilt from an independent source while an appeal is pending. Rather, the statement was obtained from the defendant after he was entitled to the advice of an attorney as to whether he should speak at all and without the benefit of such advice. Such advice is an aspect of the broad out-of-court counseling function performed by attorneys which furnishes the underpinning of Massiah and its progeny. If the focus is narrowed and limited to an attorney's litigation function, Massiah's rule becomes difficult to rationalize. Such a limited focus led Mr. Justice Rhenquist to complain that "the doctrinal underpinnings of Massiah have been largely left unexplained, and the result in this case, as in Massiah, is difficult to reconcile with the traditional notions of the role of an attorney." United States v. Henry, 447 U.S. 264, 290, 100 S.Ct. 2183, 2197, 65 L.Ed.2d 115 (1980) (Rhenquist, J. dissenting). A broader view which recognizes an attorney's counseling function clearly demonstrates both the "doctrinal underpinnings of Massiah" and its application to the present case. An attorney is not a mere courtroom gladiator, he

acts as a spokesman for, or advisor to, the accused. The accused's right to the "Assistance of Counsel" has meant just that, namely, the right of the accused to have counsel acting as his assistant.... In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution.

United States v. Ash, 413 U.S. 300, 312, 93 S.Ct. 2568, 2575, 37 L.Ed.2d 619 (1973) (emphasis added). The guarantee of counsel, in addition to assuring equality in trial-like adversary confrontations, prevents the accused from being misled by his lack of familiarity with the law. Id. at 306-313, 93...