Coppola v. Powell

• Decision Date: 03 May 1989
• Docket Number: No. 89-1109,89-1109
• Citation: 878 F.2d 1562
• Parties: Vincent COPPOLA, Petitioner, Appellant, v. Ronald L. POWELL, etc., et al., Respondents, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1562

878 F.2d 1562

58 USLW 2114

Vincent COPPOLA, Petitioner, Appellant, v. Ronald L. POWELL, etc., et al., Respondents, Appellees.

No. 89-1109.

United States Court of Appeals First Circuit.

Heard May 3, 1989.

Decided July 14, 1989.

James E. Duggan, Chief Appellate Defender, Appellate Defender Program, Franklin Pierce Law Center, for petitioner, appellant.

Tina Schneider, Asst. Atty. Gen., Criminal Justice Bureau, with whom John P. Arnold, Atty. Gen., was on brief, for respondents, appellees.

Before BOWNES and BREYER, Circuit Judges, and GRAY, ^* Senior District Judge.

BOWNES, Circuit Judge.

Petitioner Vincent Coppola was convicted by a jury in New Hampshire Superior Court, Merrimack County, on one count of burglary and two counts of aggravated felonious sexual assault. The New Hampshire Supreme Court affirmed his convictions holding, inter alia, that petitioner's prearrest, precustodial statement to the police was not an invocation of his constitutional right to remain silent and was properly received into evidence for use in the prosecution's case in chief. State v. Coppola, 130 N.H. 148, 152-53, 536 A.2d 1236, 1239 (1987). Coppola's petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 was denied by the United States District Court for the District of New Hampshire. Coppola v. Powell, No. C88-373-L (D.N.H. Nov. 30, 1988) (order on motion to dismiss). A certificate of probable cause pursuant to 28 U.S.C. Sec. 2253 was granted and petitioner brings this appeal. We reverse.

I. FACTS

Shortly after midnight on January 25, 1986, Jessica Hodgins was awakened by a thumping sound at her front door. She got up to investigate the noise and remained standing in her living room near the door. She saw a hand break through a glass window and reach in to unlock and open the door. A man then entered her house and overpowered her, dragging her into the bedroom where he raped her. Approximately one half hour after his arrival the man left and Mrs. Hodgins called the police.

When the state police arrived at her home Mrs. Hodgins gave a detailed description of her assailant. She also remembered seeing a "little dark foreign car" parked on the road across from her house. A local police officer on his way to the crime scene reported that he saw a small burgundy compact car heading away from the area at 12:52 a.m. The officer identified the first three digits of the license plate and saw that the driver had a mustache.

Because this information led the police to consider petitioner a suspect, state and local police officers went to petitioner's residence and questioned him shortly after 2:30 a.m. on the day of the crime.

Three days later, on the evening of January 28th, two state troopers returned to petitioner's home. One of the troopers "asked [petitioner] if he'd be willing to talk to us." Petitioner replied, "Let me tell you something. I'm not one of your country bumpkins. I grew up on the streets of Providence, Rhode Island. And if you think I'm going to confess to you, you're crazy."

Petitioner was arrested six weeks later, charged and tried. He did not testify at his trial; he was found guilty.

II. PROCEDURAL FACTS

Petitioner's statement that he was not a country bumpkin and that the police were crazy to think he would confess was presented for a ruling on admissibility at an in camera hearing during his trial in state court. The statement had been recorded and included, along with other statements made by petitioner, in the state trooper's written report of what was said at petitioner's home on January 28th. The prosecution introduced the statement through the testimony of the trooper who recorded it.

The pertinent in camera testimony of the trooper is as follows:

Direct Examination:

Q Okay. Tell us what happened.

A Well, I asked him if he'd be willing to talk to us. And at this time, he said to me, "Let me tell you something. I'm not one of your country bumpkins. I grew up on the streets of Providence, Rhode Island. And if you think I'm going to confess to you, you're crazy."

Q And what tone of voice did he use in communicating that statement to you?

A It was fairly hostile, and he appeared to be in a bragging tone when he was telling me how he grew up in Providence, Rhode Island.

Q What happened then?

A Well, I said to him, "I just want to give you your rights and then talk to you."

And at this time he said that he would not talk to me without a lawyer.

Cross Examination:

Q So when you went up to his house on the 28th of January, the reason that you went there was to elicit a confession from Vinnie, right?

A That's [sic] was my ultimate goal, that's correct.

....

Q And that statement told you he wasn't going to make a statement and confess to you, right?

A That's what he said.

The trial judge allowed the trooper to testify as to what petitioner said, as well as to his "bragging tone of voice." The testimony about the request for counsel was excluded by the judge because of its potentially prejudicial effect on the jury.

The admissibility of the trooper's testimony concerning petitioner's statement was one of two evidentiary issues bearing on the question of guilt ¹ before the New Hampshire Supreme Court on appeal. The other issues bore only on the sentence. In affirming petitioner's conviction, the court gave its interpretation of petitioner's statement.

A more significant flaw, however, infecting each of the defendant's lines of reasoning, is the factual unreality of equating his taunt to the police with an invocation of his constitutional right to remain silent. If he had couched his refusal in terms of speech versus silence, it might be arguable that he was claiming a constitutional warrant for his action. But his statement cannot be read as a mere assertion that he, unlike a bumpkin, would not talk; he claimed, rather, that the police were crazy to think that someone of his sophistication would confess. By describing his choice as a refusal to confess, he implied that he had done something to confess about. It was this implication that took the defendant's retort outside the realm of allusions to the fifth amendment and affirmatively indicated his consciousness of guilt.

Coppola, 130 N.H. at 152-53, 536 A.2d at 1239.

The federal district court agreed with the New Hampshire Supreme Court and granted respondent's motion to dismiss the petition for a writ of habeas corpus.

The issue before us is whether the admission of petitioner's statement for use in the prosecution's case in chief placed an unconstitutional burden on the exercise of petitioner's fifth amendment privilege not to incriminate himself. Because the admissibility of the statement is akin to the question of the admissibility of a confession, it "merits treatment as a legal inquiry requiring plenary federal review." Miller v. Fenton, 474 U.S. 104, 115, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985).

III. APPLICABLE FIFTH AMENDMENT PRINCIPLES

We start our analysis by referring to three basic legal principles that have animated the application of the fifth amendment privilege against self-incrimination. The first principle is that invocation of the right must be given a liberal construction.

This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, "was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed." Feldman v. United States, 322 U.S. 487, 489 [64 S.Ct. 1082, 1083, 88 L.Ed. 1408] (1944). This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure. Counselman v. Hitchcock, 142 U.S. 547, 562 [12 S.Ct. 195, 197-198, 35 L.Ed. 1110] (1892); Arndstein v. McCarthy, 254 U.S. 71, 72-73 [41 S.Ct. 26, 29, 65 L.Ed. 138] (1920).

Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951); accord, In re Brogna, 589 F.2d 24, 27 (1st Cir.1978); In re Kave, 760 F.2d 343, 354 (1st Cir.1985). "This constitutional protection must not be interpreted in a hostile or niggardly spirit." Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511 (1956). "[E]ven the most feeble attempt to claim a Fifth Amendment privilege must be recognized...." United States v. Goodwin, 470 F.2d 893, 902 (5th Cir.1972), cert. denied, 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691 (1973).

The second principle is that invocation of the privilege against self-incrimination does not turn on a person's choice of words. "It is agreed by all that a claim of the [fifth amendment] privilege [against self-incrimination] does not require any special combination of words." Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964 (1955).

[N]o magic language or ritualistic formula is required to assert the [fifth amendment] privilege [against self-incrimination] which is effectively invoked by any language which the court should reasonably be expected to understand as an attempt to claim the privilege.

State v. Bell, 112 N.H. 444, 446, 298 A.2d 753, 756 (1972) (Kenison, C.J.) (citing Quinn, 349 U.S. at 163, 75 S.Ct. at 673); see Securities and Exchange Comm. v. Howatt, 525 F.2d 226, 230 (1st Cir.1975) (citing Quinn, 349 U.S. 155, 75 S.Ct. at 668). And in determining whether the privilege has been invoked, the "entire context in which the claimant spoke must be considered." United States v. Goodwin, 470 F.2d at 902.

The third basic principle is that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime. "The right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings." United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987). The...