Felder v. McCotter, 84-2336
| Decision Date | 05 July 1985 |
| Docket Number | No. 84-2336,84-2336 |
| Citation | 765 F.2d 1245 |
| Parties | Sammie FELDER, Jr., Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jay Topkis, Todd D. Stern, New York City, Peter Buscemi, Paul, Weiss, Rifkind, Wharton & Garrison, Washington, D.C., Bruce V. Griffiths, Houston, Tex., Jill Levi, Rego Park, N.Y., for petitioner-appellant.
Jim Mattox, Atty. Gen., J.D. Hooper, Duane E. Crowley, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before RUBIN, JOLLY and DAVIS, Circuit Judges.
After counsel for a person who has been charged with and arrested for a criminal offense has directed the police not to interrogate the accused in the absence of counsel, a confession elicited from the accused by police questioning in counsel's absence is inadmissible even though the police have given him a Miranda warning. The accused's response to the questioning is not a waiver of his previously-asserted right to the assistance of counsel. We, therefore, hold that the accused's sixth amendment right to counsel in this capital case was violated by the admission of a confession thus obtained and that the admission of the confession elicited by this violation was not harmless. Accordingly, we reverse the district court judgment denying his application for habeas corpus and remand for issuance of the writ unless the State shall commence a new trial within ninety days after the issuance of our mandate.
James Hanks, a quadraplegic, was brutally killed in the course of a robbery committed in Houston, Texas. Almost a month later, on April 11, 1975, a Houston police officer filed an affidavit and felony complaint in the Harris County Justice of the Peace court charging Sammie Felder, Jr., with capital murder. 1 On the same day the Texas court issued a fugitive warrant for Felder's arrest. Three days later, Idaho police stopped Felder in Idaho Falls, Idaho, for a minor traffic offense, but arrested him when he refused to produce a driver's license and gave the police a false name. They then gave Felder a Miranda warning. The same day they discovered the Texas fugitive warrant and held Felder on it pending extradition proceedings. The next day, Felder was arraigned on the fugitive warrant before an Idaho court in Bonneville County, Idaho. The court appointed a member of the local bar, R. John Insinger, Esq., to represent Felder.
Insinger consulted with Felder almost daily. He explicitly instructed the Idaho police not to question Felder about any of Felder's legal affairs unless he was present, and the police agreed. The Idaho police complied with the agreement; when they wished to question Felder about a reported murder in Denver, apparently unrelated to the Texas offense, they notified Insinger, who agreed to the interrogation and was present during it.
Members of the Houston police department also knew that Insinger represented Felder. Houston police officers spoke to Insinger twice by telephone in an effort to secure his cooperation in the extradition proceedings and a waiver of extradition in exchange for a possible plea concession. Felder, on Insinger's advice, waived extradition.
Several days later, on April 23, 1975, a Houston police officer, J.W. Clampitte, who personally knew that a lawyer had been appointed to represent Felder, came to Idaho and, after giving Felder the Miranda warning, questioned him about the Texas charge. The interview was initiated by Clampitte without notice to Insinger, who did not consent to it and was not present. Clampitte obtained an oral and then later a written confession, the first paragraph of which recited the Miranda warning. Felder was then transported to Texas, where he was later indicted by the grand jury and tried for capital murder.
At Felder's trial, the Texas court ruled that Felder's confession was voluntary and admissible. Felder was convicted and sentenced to death in 1976. His appeal was denied by the Texas Court of Criminal Appeals in 1978 2 and his petition for a writ of certiorari was thereafter denied. 3
Felder's execution was then scheduled. He thereafter filed petitions for habeas corpus in the Harris County district court and in the Texas Court of Criminal Appeals. The lower court recommended denial of the petition and denied a request for a stay of Felder's execution. The Court of Criminal Appeals later denied both a stay of execution and the habeas corpus petition. Neither court afforded petitioner an opportunity to be heard.
Felder then filed a federal habeas corpus petition in the United States District Court for the Southern District of Texas (Houston Division). On the same day, that court granted a stay of execution which is still in effect.
Because Felder had not exhausted his state remedies with respect to some of the claims asserted in the federal petition, he moved to dismiss his petition without prejudice so that the claims might be considered in the first instance by the state courts. The district court granted Felder's motion to dismiss, but this court reversed and remanded to the district court with instructions to proceed to the merits of the petition because the state had waived exhaustion. 4 This court's mandate issued on January 12, 1983. No further hearing of any kind was held in the district court. On April 24, 1984, the district court filed an opinion denying Felder's habeas corpus petition.
The sixth amendment to the Constitution, made applicable to the states by the fourteenth amendment, 5 guarantees the accused in all criminal prosecutions the right "to have the assistance of counsel for his defense." This right, as the Supreme Court has reminded us in Brewer v. Williams, "is indispensable to the fair administration of our adversary system of criminal justice" and is "vital ... at the pretrial stage." 6 We look to state law to determine when adversarial proceedings against the accused have commenced, implementing the sixth amendment right to counsel. 7 Here, as in Brewer, there can be no doubt that judicial proceedings had been initiated against Felder before Clampitte interrogated him. The filing of an affidavit and criminal complaint in a Justice of the Peace court constitutes the institution of formal judicial criminal proceedings in Texas. 8
Clampitte knew a lawyer had been appointed to represent Felder. He testified, "the Sheriff's department there [in Idaho] had advised me he had been represented by an attorney prior to my arriving." Officer Clampitte asked Felder during interrogation whether he had conferred with a lawyer, and Felder said "yes." The state relies on a statement by the state trial court that Clampitte "understood" a lawyer had been appointed only to advise Felder about extradition, but Insinger's appointment was not so qualified and, as we have pointed out, he had in fact engaged in plea bargaining with the Houston police and had represented Felder in the investigation of the Denver matter.
There is no merit to the state's argument that Insinger's appointment terminated upon Felder's waiver of extradition. Insinger represented Felder as to all criminal matters facing the accused while he was present in Idaho, and the attorney was treated accordingly by both the Houston and Idaho police. As in Brewer, the police officer set out to obtain information from Felder knowing that counsel had been appointed to represent him and without making any effort to determine whether counsel had forbidden such interrogation or whether counsel wished to be present. Because Clampitte knew that Felder had an attorney and had conferred with the attorney, he should have inquired whether the attorney had forbidden interviews.
In Brewer, a murder suspect's attorney instructed the police not to question his client during a car ride from Davenport to Des Moines, Iowa. The police agreed. During the trip the police officers elicited incriminating statements from Williams by suggesting to him that the victim's body should be located and buried. While the officers had given the accused Miranda warnings before beginning the trip, they made no further effort to obtain a waiver of his right to the presence of counsel before eliciting incriminating responses. Quoting from its prior decision in Massiah v. United States, 9 a case involving different circumstances, the Court held that the accused was denied the sixth amendment right to counsel when the prosecutor used at his trial "evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." 10
"That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant," the Court said in Brewer. 11 That the Brewer statements were elicited over a longer interval and in response to the suggestion that the victim was entitled to a Christian burial is, if not equally constitutionally irrelevant, insufficient to distinguish Clampitte's deliberate interrogation of Felder. Massiah and Brewer establish a "clear rule ... that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him." 12 As the Court pointed out in a footnote to Brewer, the existence of an agreement by the police not to interrogate the accused in the absence of his counsel "provides [the state] with no argument for distinguishing away the protection afforded by Massiah." 13
Brewer cannot be distinguished on the basis that in that case the accused had himself initially requested counsel and stated his desire to speak only in counsel's presence, while Felder's lawyer had forbidden interviews with his client. Insinger spoke for Felder as his counsel...
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