Dunkins v. Thigpen

• Decision Date: 18 August 1988
• Docket Number: No. 87-7529,87-7529
• Citation: 854 F.2d 394
• Parties: Horace Franklin DUNKINS, Jr., Petitioner-Appellant, v. Morris THIGPEN, Commissioner of Alabama Department of Corrections, and W.E. Johnson, Warden, Holman Unit, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 394

854 F.2d 394

Horace Franklin DUNKINS, Jr., Petitioner-Appellant, v. Morris THIGPEN, Commissioner of Alabama Department of Corrections, and W.E. Johnson, Warden, Holman Unit, Respondents-Appellees.

No. 87-7529.

United States Court of Appeals Eleventh Circuit.

Aug. 18, 1988.

John C. Falkenberry, Falkenberry & Whatley, North Birmingham, Ala., for petitioner-appellant.

Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Petition for Rehearing and Suggestion for Rehearing In Banc

Before HILL, FAY and VANCE, Circuit Judges.

VANCE, Circuit Judge:

On petition for rehearing, the court withdraws its previous opinion dated May 27, 1988, and substitutes the following opinion. The petition for rehearing is otherwise DENIED and no member of this panel nor other judge in regular active service on the court having requested that the court be polled on rehearing in banc, the suggestion for in banc consideration is DENIED.

I.

On May 27, 1980 two sheriff's deputies arrested petitioner and transported him along with a co-worker to the Jefferson County Courthouse. Petitioner was a suspect in the rape and murder of Lynn McCurry. ¹ After the deputies read petitioner his rights, they began to interrogate him. After a few questions, petitioner stated: "Before I talk anymore now, I would like to talk to my lawyer or either my mama or somebody...." After this statement, the deputies asked a few more questions ² and arranged a lineup. The police then returned petitioner and his co-worker to their place of employment. At some point during the day, petitioner agreed to take a polygraph test. ³

The next morning, Sergeant House picked up petitioner at work and brought him to the Sheriff's office for the polygraph test. After the test Dunkins was returned to his job. Later that day House brought petitioner back for more questioning. An hour or so later petitioner signed a waiver of his rights and confessed his complicity in the crime.

A Jefferson County Circuit Court jury convicted Dunkins and sentenced him to death. After unsuccessfully challenging his conviction and sentence on direct appeal and on collateral attack in the Alabama courts, petitioner filed a habeas petition in the district court. The district court denied the petition, and Dunkins brought this appeal.

II.

A.

Petitioner contends that the admission of the May 28 confession violated his fifth amendment right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Petitioner argues that under Miranda his expression of desire to speak with an attorney precluded any further questioning, and that under Edwards he did not waive his right to have counsel present by responding to further police initiated investigation.

The Supreme Court has held that once a defendant expresses a desire to deal with the police only through counsel, the authorities may not further interrogate the defendant until "counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversation with the police." Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885; See Arizona v. Roberson, --- U.S. ----, 108 S.Ct. 2093, 2097, 100 L.Ed.2d 704 (1988); Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987). Thus once a defendant has requested counsel, Edwards permits the police to resume questioning only if the defendant initiates contact with police. See Oregon v. Bradshaw, 462 U.S. 1039, 1043, 103 S.Ct. 2830, 2833, 77 L.Ed.2d 405 (1983); Edwards, 451 U.S. at 485, 101 S.Ct. at 1885; Collins v. Francis, 728 F.2d 1322, 1332 (11th Cir.), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984). Even if a defendant has initiated contact with the police after requesting counsel, any statements made are still inadmissible unless they are the product of a knowing and voluntary waiver. See Bradshaw, 462 U.S. at 1045, 103 S.Ct. at 2834; id. at 1054 n. 2, 103 S.Ct. at 2840 n. 2 (Marshall, J. dissenting); Wyrick v. Fields, 459 U.S. 42, 46-48, 103 S.Ct. 394, 395-96, 74 L.Ed.2d 214 (1982); Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. at 1885 n. 9; Wilson v. Murray, 806 F.2d 1232, 1237 (4th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 197, 98 L.Ed.2d 149 (1987). ⁴

Respondent argues first that Edwards does not bar the admission of petitioner's confession because the police honored Dunkins' request. Petitioner wanted to see a lawyer or his mother or somebody, and he did in fact see his mother. Respondent argues second that Edwards does not exclude the confession because petitioner was not continually in custody between the time of his assertion of the right to counsel and his confession. While the first argument is probably meritorious, we believe that the second argument is an even more compelling basis for holding that the police did not violate Edwards. ⁵

Several circuits have required that there be no break in custody before the Edwards rule will operate to exclude a confession. In these cases, the courts of appeals have held that even when the police wrongfully ignore a defendant's request for counsel, subsequent confessions obtained from even police initiated interrogation are admissible if there has been an intervening break in custody. See McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir.1987); United States v. Fairman, 813 F.2d 117, 125 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3240, 97 L.Ed.2d 745 (1987); United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983). We agree that a break in custody dissolves a defendant's Edwards claim. If the police release the defendant, and if the defendant has a reasonable opportunity to contact his attorney, then we see no reason why Edwards should bar the admission of any subsequent statements. A break in custody after the invocation of fifth amendment rights ends the need for the Edwards rule. ⁶

In this case, petitioner made a somewhat ambiguous statement that included a request to see his attorney. Even assuming that this statement triggered Edwards, ⁷ and regardless of whether or not petitioner initiated further discussion with the police, ⁸ we hold that petitioner's release from his initial custody provided him with substantial opportunity to speak with those he wished to consult. The admission of his subsequent confession therefore did not violate his constitutional rights under Edwards.

B.

Petitioner also argues that his waiver of his Miranda rights was not voluntary, knowing and intelligent. Petitioner, citing Hines v. State, 384 So.2d 1171 (Ala.Crim.App.1980), contends that his confession was neither voluntary nor knowing because a psychological assessment performed after his arrest revealed that petitioner was "functioning at the high mild range of mental retardation." Because of this condition, petitioner argues that he could not have waived his rights voluntarily and intelligently.

The Supreme Court has held that the inquiry into whether a defendant has waived his rights under Miranda voluntarily, knowingly and intelligently has two distinct dimensions:

First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986); see Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987); Evans v. McCotter, 790 F.2d 1232, 1238 (5th Cir.), cert. denied, 479 U.S. 922, 107 S.Ct. 327, 93 L.Ed.2d 300 (1986); United States v. McClure, 786 F.2d 1286, 1288-90 (5th Cir.1986). Thus "a valid waiver of Miranda rights must not only be voluntary; it must also be intelligently made." Miller v. Dugger, 838 F.2d 1530, 1538 (11th Cir.1988) (emphasis in original). Mental illness, moreover, is a factor to be considered by the trial court when ruling on the validity of a waiver. Id. at 1539; see Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir.1972); McClure, 786 F.2d at 1289.

Applying Burbine and Miller to the facts of this case, we find that petitioner's waiver was both voluntary and intelligent. Mental retardation does not by itself prevent a defendant from voluntarily waiving his constitutional rights. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 523-24, 93 L.Ed.2d 473 (1986). The voluntariness of a Miranda waiver depends on the absence of police overreaching, and not on any broad sense of "free choice." Id. 107 S.Ct. at 523; see United States v. Scheigert, 809 F.2d 1532, 1533 (11th Cir.1987). Petitioner does not argue on appeal that his confession was involuntary due to any police overreaching or coercion. ⁹ We hold therefore that petitioner's waiver of his Miranda rights was not involuntary.

We also hold that petitioner's waiver was knowing and intelligent. The issue of petitioner's ability to understand his Miranda rights and competently waive them was not specifically raised at trial. Petitioner presented no psychiatric evidence to the trial court. Cf. Cooper, 455 F.2d at 1143-44 (defendant presented testimony of four special education teachers at suppression hearing); McClure, 786 F.2d at 1289 (defendant presented testimony of a clinical psychologist at suppression hearing). Indeed, the evidence before the trial court at the suppression hearing indicated that petitioner behaved in such a way that...