Henderson v. Singletary
| Decision Date | 30 July 1992 |
| Docket Number | No. 88-3680,88-3680 |
| Citation | 968 F.2d 1070 |
| Parties | Robert Dale HENDERSON, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Billy H. Nolas, Office of Capital Collateral Representative, Larry H. Spalding, Martin J. McClain, Tallahassee, Fla., for petitioner-appellant.
Richard B. Martell, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY and HATCHETT, Circuit Judges, and CLARK, Senior Circuit Judge.
Upon the request of one of the active judges of the court to reconsider Part II of our opinion of February 20, 1991, 925 F.2d 1309, we hereby modify our previous opinion by deleting Part II.B, found at page 1314, and substitute the following Part II.B:
B. The Confession to Perez
On February 11, 1982, Officer Perez of the Hernando County sheriff's office met with Henderson in the Putnam County jail. Perez testified, "[Henderson] advised me that he would not talk to me at that time, for me to return to Hernando County, obtain the necessary paperwork, return to pick him up, at which time it would be a long ride back and we'd see what happens in the interim." No further statement was taken. On June 11, 1982, Perez and another officer transported Henderson from the Raiford State Prison to Hernando County, a car trip of several hours. Henderson was at this time represented by counsel in both Putnam and Hernando Counties. During the trip, Perez read Henderson his rights and then showed him a picture of one of the victims, asking, "Do you recognize the person in this picture?" Henderson replied, "No comment." A few minutes later, Perez again asked about the murders. Henderson replied, "I already told other detectives and I know about what you're investigating, and I know you have copies of my statement." Perez replied that he wanted to have clarification of some of the events surrounding the murders, but Henderson remained silent, and Perez asked no more questions. Perez testified as to what happened next:
We proceeded on the road. [The other officer] had to pull over to use the telephone to call in and advise our administrator ... that we were coming in. We were heading back. Just prior to [the other officer] stopping the vehicle to get out, Mr. Henderson advised me, "Give me a Pepsi and a pack of Winstons and I'll tell you about this shit," at which time [the other officer] asked me if I wanted something. I said, I just wanted a Pepsi, but he did come back with a pack of Winstons and a Pepsi for Mr. Henderson. A few moments thereafter as we were driving down the road, [Henderson] went on to explain and tell me about the case.
Edwards v. Arizona 1 interprets the fifth amendment as requiring that "an accused, ... 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 the accused himself initiates further communication, exchanges, or conversations with the police." 2 Perez' questions did not violate Edwards. We found in Part II.A. of our original opinion that Henderson had waived his previously invoked right to counsel when he initiated his first confession. No further invocation of the right to counsel appears in the record. Moreover, Perez testified that when he picked Henderson up at the Raiford State Prison, he was provided with Henderson's signed waiver of the right to counsel. Henderson had not invoked his right to counsel when Perez picked him up; therefore, no Edwards violation occurred.
Henderson also argues that his sixth amendment right to counsel had attached at the time of Perez' questioning. Henderson indeed had appeared in "adversary judicial proceedings" 3 in relation to the murders in Putnam County, but Henderson had not appeared in any adversary judicial proceedings with respect to the Hernando County murders. Indeed, counsel was not appointed for Henderson until the day after his confession to Perez, and Henderson was not indicted until five days after the confession. We are thus not confident that Henderson's sixth amendment rights had attached at this time. 4
Were we to hold that Henderson's sixth amendment right to counsel had attached at the time of his second confession, we would nevertheless find no constitutional violation in Perez' questions. After Henderson's conviction was final, the Supreme Court determined that Edwards' requirement that police not initiate an interrogation after a defendant has asserted his right to counsel would also apply in the sixth amendment context. 5 However, Michigan v. Jackson created a new rule of law that is not to be applied retroactively 6 under Teague v. Lane. 7 The law prior to Jackson was that sixth amendment rights could be waived if a "knowing and voluntary relinquishment" 8 is shown. We find such a waiver in part II.B.3 below.
It is a close question whether Perez should have ceased any further questioning after Henderson replied that he had "no comment" to Perez' first question concerning the photograph. This circuit has held that, following an equivocal request to halt an interrogation, "the only proper course of action [is] to attempt to clarify whether [the defendant] indeed intended to invoke his right to cut off questioning." 9 Henderson's first response only showed that he did not want to discuss the photograph. Perez was justified in asking a second question to determine whether Henderson would talk about other aspects of the crime. Henderson's second response was more on point, indicating that he had already made a statement. Given this response, Perez' third question pushed the limit of acceptability. However, we believe that this third question was essentially an attempt at clarifying whether Henderson was willing to explain events not covered by the first confession. The appropriateness of the continued questioning is bolstered by Henderson's statement to Perez in February that he might be willing to talk during the ride to Hernando County. After the third clarification, Henderson's request to remain silent was "scrupulously honored." 10 We therefore find no violation of constitutional magnitude in Perez' questions. 11
Even were we to find Perez' continued querying improper (which we do not), the resulting statement would still be admissible since Henderson both initiated the dialogue and waived his previously-asserted rights to silence and counsel. 12 Both of these tests are satisfied in Henderson's case.
[5, 6] We find that Henderson initiated the confession, because a sufficient period of time elapsed between Perez' requests for Henderson to confess and Henderson's initiation of his confession. We note that "for a 'significant period' following a request to cut off questioning ... the police are barred from interrogating [a suspect]." 13 However, we do not believe the same time standard necessarily applies to a situation in which the police discontinue questioning and the defendant subsequently initiates a confession. The "significant period" standard was developed for situations in which the police are asked to stop questioning and then resume questioning. 14 It does not make sense to apply the same time standard to situations in which the defendant controls the time period between the end of police questioning and the start of a defendant-initiated confession. Courts must instead satisfy themselves that the defendant-initiated confession was not the product of improper police questioning or pressure. 15 We believe that one, but not the only, measure of the voluntariness of a defendant-initiated confession is the more flexible measure of whether a sufficient period of time has elapsed since the termination of police questioning for the defendant to have rationally reflected on the choice before him. 16
Perez did not testify as to how much time elapsed after his last question and before Henderson offered to confess. However, as quoted above, he did state that they "proceeded on the road" in silence following the last question. Prompted only by the officers' actions in stopping the car to report to headquarters that they were nearing their destination, Henderson spontaneously changed his position and declared that he would talk. Only after the phone call was made, the trip was resumed, and Henderson's rights were again read to him did Henderson give his statement.
These events indicate that a sufficient amount of time elapsed for Henderson to have rationally reconsidered his earlier refusal to talk. Perez did not merely switch the topic of conversation or briefly interrupt his interrogation in response to a request from Henderson. The questioning ceased completely. 17 Even assuming that Perez and Henderson were silent for just a short period of time, Henderson's turn-about was provoked by his own desire for refreshments, not by the badgering of the police.
Moreover, Perez never offered Henderson anything in exchange for his testimony. The Pepsi and the cigarettes were provided after Henderson asked for them, not after Perez offered them or threatened to withhold them in exchange for a confession. This case, involving only a bare request for a confession, must be distinguished from similar cases in which the police through implicit or explicit promises or threats induce a confession. 18 Perez' questioning provided Henderson with no information except that the police were interested in receiving a further statement from him (which Henderson already knew from the February conversation with Perez). Therefore, Henderson's decision to talk was not clouded by improper threats or promises. Indeed, Henderson may...
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