Davis v. Puckett, 87-4564

• Citation: 857 F.2d 1035
• Decision Date: 17 October 1988
• Docket Number: No. 87-4564,87-4564
• Parties: Malcolm Joe DAVIS, Petitioner-Appellee, Cross-Appellant, v. Steve W. PUCKETT, Superintendent of the Mississippi State Penitentiary, et al., Respondents-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1035

857 F.2d 1035

Malcolm Joe DAVIS, Petitioner-Appellee, Cross-Appellant, v. Steve W. PUCKETT, Superintendent of the Mississippi State Penitentiary, et al., Respondents-Appellants Cross-Appellees.

No. 87-4564.

United States Court of Appeals Fifth Circuit.

Oct. 17, 1988.

Rehearing and Rehearing En Banc Denied Nov. 16, 1988.

Donald G. Barlow, Sp. Asst. Atty. Gen., Jackson, Miss., for respondents-appellants, cross-appellees.

Dixon L. Pyles, Jackson, Miss., for petitioner-appellee, cross-appellant.

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

Before WISDOM, GEE and JONES, Circuit Judges.

GEE, Circuit Judge:

On April 13, 1980, a jury in Pearl River County, Mississippi, convicted Malcolm Joe Davis of rape and sentenced him to thirty years imprisonment. After appealing his conviction unsuccessfully in state court, Davis filed a petition in federal district court for habeas corpus relief, asserting that his conviction contravened the constitution in various respects. Davis raised three major claims: First, that the trial court erroneously admitted his confession into evidence and thus violated his due process rights under the Fifth and Fourteenth Amendments, the confession being the fruit of an impermissible interrogation by police after he had invoked his right to counsel; second, that comments made by the prosecutor in his closing argument regarding Davis's failure to "deny that he had committed the offense" were prejudicial and improper under the due process clauses of the Fifth and Fourteenth Amendments; and finally, that the delay of over one year in bringing him to trial violated his Sixth Amendment right to a speedy trial.

Based on a magistrate's report, the district court granted the petition for habeas relief, finding that Davis's constitutional rights were violated on the first two grounds stated above. As for the third ground, the court concluded that, although it was an unfortunate one, the delay did not rise to the level of a constitutional violation. Mississippi appeals the district court's decisions regarding the confession and the prosecutor's comments, maintaining that the court failed to recognize procedural bars to review of the merits of these two issues that had been applied by the Mississippi Supreme Court. Davis appeals the district court's finding that he did not suffer prejudice from the delay in bringing him to trial. We reverse.

Background

On a March morning in 1979, a housewife was confronted and raped at her home in Pearl River County, Mississippi, by a man wearing "knee high" stockings over his face and hands. In order to prevent identification, the assailant forced her to douche.

After her assailant fled, she tried to telephone for help, but the instrument had been disconnected. She then drove to her husband's office, after which he accompanied her to the hospital. The physician who examined her found no injury or evidence of sperm. The federal magistrate's report noted the physician's testimony in the state trial that his examination was complicated by the fact that the victim was menstruating and was forced to douche. Shortly thereafter, she provided the Sheriff's Department with an account of the incident and described the physical characteristics of her assailant.

Davis was taken into custody later the same day. Suspicion had focused on Davis because witnesses had seen him and his truck near the victim's home. Moreover, four knee-high stockings were found under a bridge near the home, and their containers were discovered in Davis's truck. A checkout girl in the local market recalled selling the stockings to Davis a few days before the rape. At trial, the victim testified that Davis had repaired her washing machine several times.

The district court found that while in custody Davis was advised of his Miranda rights and signed a waiver of those rights. When interrogation began, however, he asked to be allowed to call his attorney, who told Davis that he would be at the jail to visit with him shortly. The attorney never appeared, however, and at approximately 11:00 p.m. on the evening of the crime Sheriff Holliday and Auxiliary Deputy McCaleb began questioning him once more. During this interrogation, Davis was again advised of his rights. He again signed a waiver of his right to counsel, but this time he admitted to the crime and signed two statements detailing his involvement.

Davis was arrested on March 9, 1979, and was indicted seven days later. His arraignment did not take place until November 15, however, and his trial did not begin until April 10 of the following year. Before trial, Davis requested that the statements that he gave while in custody be suppressed. The trial court delayed its decision until trial and then ruled that the waiver was valid and that the statements were admissible. No formal objection to the introduction of these statements was made at trial after the court's ruling. On appeal, the Mississippi Supreme Court found that this failure to object contemporaneously waived the objection and precluded that court from further consideration of the issue.

Finally, at the conclusion of the evidence, the prosecution made a statement, unpreserved by a Bill of Exceptions, which Davis alleges constituted a comment on his failure to testify in his own defense at trial. The trial judge ruled that the prosecutor's comments referred to Davis's behavior in custody and not to his failure to testify at trial.

The Constitutional Violations

I. Davis's Right to Counsel A General Right?

Davis contends that the district court was correct in holding that the sheriff violated his Fifth and Fourteenth Amendment rights by initiating another round of interrogation after Davis had explicitly stated that he wanted to speak with his lawyer.

The Supreme Court has provided guidance in evaluating this issue. As a general rule, an accused in custody, "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 he validly waives his earlier request for assistance of counsel. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1980). In developing this "prophylactic rule," the Court has identified two distinct inquiries: First, a court must decide whether the accused actually invoked his right to counsel; and second, if he did so, his responses to further questioning are admissible only on a finding that he (a) initated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984) (emphasis added).

It should be noted that a valid waiver "cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1980). See also Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 1410-11, 89 L.Ed.2d 631 (1986) (Sixth Amendment discussion).

In the case before us, Davis asked for his attorney. At this the police quite properly ceased all interrogation. When Davis's counsel failed to appear, however, the police initiated the next round of interrogation. Thus because the police and not the accused initiated the dialogue, even though he was advised of his rights and signed a waiver, his subsequent confession should not have been received in evidence. ¹ Of this, however, more later.

II. The Prosecutor's Improper Comments

The district court found that the prosecution made improper comments to the jury in closing argument with respect to Davis's failure to deny that he had committed the crime. Consequently, it held that Davis's Fifth Amendment rights were violated in that the jury might have taken the prosecutor's comments to refer to Davis's failure to testify in his own defense. Review of the prosecutor's comments, however, is hampered by the defense counsel's failure to "preserve the closing argument for the record by a bill of exceptions or otherwise." Davis v. State, 406 So.2d 795, 801 (Miss.1981).

In evaluating the extent to which Davis's constitutional rights may have been prejudiced by the prosecutor's comments, it is important to note that the trial court stated in the presence of the jury:

Let the record show that the Assistant Attorney was arguing the case, and in his argument of speaking of the times that the statements were made by the defendant and in reference to those statements, he made the statement that all the defendant had to do at that time was deny that he had committed the offense. Upon him stating that, the defense attorneys have now moved the Court for a mistrial. The Court finds that the statements made by the Assistant District Attorney were made in regard to 9 March '79, and in the early morning of 10 March '79, and in conjunction with the statements that were made to the Sheriff and the other witness at said time and place and were not in manner referring to any other time, place, circumstance or situation, and for this reason, the motion be and the same is hereby overruled.

We have set forth guidelines for analyzing such prosecutorial comments. "A prosecutor's argument will be deemed a reference to defendant's failure to testify if (1) such comment is the prosecutor's manifest intent or (2) it is of such a character 'that the jury would naturally and necessarily' interpret the comment as such." United States v. Soudan, 812 F.2d 920, 930 (5th Cir.1986) (citations omitted) (emphasis added).

Given what was preserved in the record, we cannot conclude that the prosecutor's closing comments were a reference to Davis's failure to testify. The trial court defined the prosecutor's manifest intent, finding that the prosecutor's comments referred to the period of initial...