Kennedy v. Fairman

• Decision Date: 11 April 1980
• Docket Number: No. 79-1957,79-1957
• Citation: 618 F.2d 1242
• Parties: James Albert KENNEDY, Petitioner-Appellee, v. Jay FAIRMAN, Warden, Pontiac Correctional Center, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1242

618 F.2d 1242

James Albert KENNEDY, Petitioner-Appellee, v. Jay FAIRMAN, Warden, Pontiac Correctional Center Respondent-Appellant.

No. 79-1957.

United States Court of Appeals Seventh Circuit.

Argued Feb. 15, 1980.

Decided April 11, 1980.

Melbourne A. Noel, Jr., Asst. Atty. Gen., Crim. Div., Chicago, Ill., for respondent-appellant.

Glenn O. Fuller, Decatur, Ill., for petitioner-appellee.

Before CUMMINGS, SPRECHER and TONE, Circuit Judges.

SPRECHER, Circuit Judge.

The question raised in this appeal is whether the district court erred in holding that the statements made by petitioner were obtained in violation of his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We hold that petitioner waived his right to counsel and reverse the judgment below.

I

Petitioner, James Kennedy, was arrested on July 30, 1976 and charged with the rape and deviate sexual assault of a female with whom he worked at the Temple B'nai Abraham in Decatur, Illinois. On November 23, 1976, a jury acquitted him of the deviate sexual assault charge, but was unable to reach a verdict on the rape charge. A second jury found petitioner guilty of rape and the trial judge sentenced him to a term of fourteen to fifty years in prison. The Illinois Appellate Court affirmed, People v. Kennedy, 60 Ill.App.3d 947, 18 Ill.Dec. 345, 377 N.E.2d 830 (1978), and the state supreme court denied leave to appeal. 71 Ill.2d 612 (1978).

Having exhausted all of his state remedies, Kennedy petitioned the district court for a writ of habeas corpus. In support of the petition, he argued that police had violated his privilege against self-incrimination by eliciting statements from him despite his repeated requests for counsel. ¹ The State argued that petitioner had knowingly waived his right to have counsel present. The district court rejected the State's argument and granted the writ, holding that petitioner had not waived his right to counsel.

In accordance with 28 U.S.C. § 2254(d), ² the district court relied on the factual findings made by the state trial court, without conducting an evidentiary hearing of its own. Since the factual findings by the state court implicitly resolved conflicts in testimony in favor of the State's witnesses, the district court correctly did the same. ³

The relevant facts can be summarized as follows. After being arrested and booked, petitioner was taken directly to an office in the police station for interrogation. The first interview began at 7:40 p. m. It is undisputed that he was informed, both orally and in writing, of his Miranda rights. See Miranda v. Arizona, 384 U.S 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is also undisputed that he requested an attorney.

Petitioner was given a copy of the police department's standard custodial advice form on which he made and initialed the following statements:

1. You do not have to make any statement at this time and have a right to remain silent.

I DENY CHARGE

J.K.

2. Anything that you say can and will be used against you in a Court of Law.

UNDERSTOOD AND STILL DENY CHARGE

J.A.K.

3. You are entitled to an attorney before any interview and to have an attorney present at the interview.

I WANT ATTORNEY

J.A.K.

4. If you cannot afford an attorney, one will be appointed for you.

UNDERSTOOD

J.A.K.

5. The above rights have been read by me and to me and I fully understand them. Understanding the above rights I wish to make a statement to the Police Officers interviewing me. WITH ATTORNEY PRESENT TODAY

Signature

/s/ J. A. Kennedy

Quoted in Kennedy v. Pinkney, 473 F.Supp. 1279, 1281 (C.D.Ill.1979). After making these notations, petitioner made an oral request for an attorney. According to one of the interrogating officers:

Mr. Kennedy said he wanted an attorney and he wanted an attorney there at the time of the interview. He said he didn't have any money and he wanted the Court to appoint him an attorney. We advised him several times, three or four times that if he wanted a court appointed attorney, we would have to stop the interview and take him back downstairs and he would have to make a court appearance, that we couldn't get him a court appointed attorney at that time. He didn't seem to understand it and so we explained it three or four times and then he understood he couldn't have a court appointed attorney at that time.

Transcript of September 2, 1976, Hearing on Defendant's Motion to Suppress, at 13-14.

The officer then testified that petitioner was informed that "if he wanted to talk to us, he would have to get his lawyer down there." Transcript at 17. According to the testimony, the police gave petitioner a telephone book; after a few moments, he said he wanted to call Mr. Asher Geisler, an attorney and member of the congregation for the Temple where Kennedy and the complainant worked. Geisler told petitioner that he could not be with him at that time because he was conducting religious services at the Temple. All parties are in agreement on the facts up to this time. A dispute arises as to what petitioner told police after talking to Geisler, but since the state court credited the officers' testimony, we are bound by those findings.

According to the interrogating officers, petitioner told them that Geisler instructed him to speak with them. They therefore proceeded to question him about the rape. Petitioner denied any involvement with the complainant.

He was questioned again at approximately 1:30 a. m. the next day. A new interrogator gave him Miranda warnings, reading from the same form on which petitioner had written his request for an attorney. According to the officer, petitioner said he had spoken with an attorney and was willing to talk. While some of the statements made during this second interview hinted at some involvement between petitioner and his co-worker, he still made no statement that amounted to a confession or admission of rape.

A third detective questioned petitioner again at approximately 9:30 a. m. As had each of the preceding officers, the detective read the Miranda rights from the custodial advice form. He testified that petitioner said he understood his rights and was willing to talk. When asked about his written comments on the form, petitioner said his attorney had advised him to talk. During this last interrogation, Kennedy admitted to having engaged in some sexual conduct with the complainant.

Petitioner's exculpatory statements in the first interview and his admissions in the third interview were introduced at trial.

II

Petitioner argues that the failure of the interrogating officers to cease their questioning as soon as he requested a lawyer constituted a per se violation of his right to counsel. In the recent case of White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979), however, we laid to rest any speculation about whether this circuit followed a per se rule. ⁴ We stated:

A per se rule which provided that a suspect could never waive a prior request for counsel would imprison a suspect in his privileges. (citation omitted) . . . This is not to say that continued interrogation or any coercion causing the suspect to waive the request need be condoned. Instead, it merely is an acknowledgement that in certain instances, for various reasons, a person in custody who has previously requested counsel may knowingly and voluntarily decide that he no longer wishes to be represented by counsel.

Id. at 191.

Although the per se argument must fail, the State nevertheless bears the heavy burden of proving that petitioner waived his right to counsel. See Brewer v. Williams, 430 U.S. 387, 404, 405 & n. 10, 97 S.Ct. 1232, 1242 & n. 10, 51 L.Ed.2d 424 (1977). The oft-quoted rule is that the State must show "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). According to the district court, the State's burden was particularly heavy in this case because petitioner had so clearly asserted his right to counsel and " 'no reason (such as new facts communicated to the accused or a new incident being inquired about) appeared for repeated questioning.' " Kennedy v. Pinkney, 473 F.Supp. at 1285 (C.D.Ill.1979), quoting from Michigan v. Mosley, 423 U.S. 96, 111, 96 S.Ct. 321, 330, 46 L.Ed.2d 313 (1975) (White, J., concurring in result). The district court stated that to meet this heavy burden, the officers should have had petitioner sign a waiver or re-initial the first form, as their perfunctory inquiry into the obvious inconsistency between his oral and written assertions was insufficient. At best, the court concluded, the facts as found by the state court showed that petitioner waived his right to remain silent, and not his right to counsel:

Petitioner's written statements on the form show clearly that he was asserting his right to counsel, not his right to remain silent. . . . A clearer assertion of the right to counsel, however, is difficult to imagine.

One cannot escape the view that the logic of Miranda requires that the clear assertion of a right requires a proportionally clearer showing of the voluntariness of a subsequent waiver.

Kennedy v. Pinkney, 473 F.Supp. at 1284 (C.D.Ill.1979).

Relying on North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the State argues that the district court impermissibly focused on the form of the waiver. According to the State, "an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to counsel guaranteed by the Miranda case." Brief of Appellant at 7.

While the State is correct in stating that an explicit waiver is not invariably necessary, we do not read North Carolina v. Butler, supra, to hold that it is never necessary. In Butler, the defendant was informed of his rights and said he understood them. He then agreed to speak to the interrogator, but would not sign any...