Kennedy v. Pinkney

• Decision Date: 31 July 1979
• Docket Number: No. 78-1234.,78-1234.
• Citation: 473 F. Supp. 1279
• Parties: James Albert KENNEDY, Petitioner, v. Warden Thaddeus PINKNEY, Respondent.
• Court: U.S. District Court — Central District of Illinois

473 F. Supp. 1279

James Albert KENNEDY, Petitioner, v. Warden Thaddeus PINKNEY, Respondent.

No. 78-1234.

United States District Court, C. D. Illinois.

July 31, 1979.

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

James A. Devine, Asst. Atty. Gen., Springfield, Ill., for respondent.

DECISION AND ORDER

ROBERT D. MORGAN, Chief Judge.

An Illinois jury found petitioner guilty of rape, after a previous jury had been unable to reach a verdict on that charge while acquitting him of deviate sexual assault arising from the same incident. The Appellate Court of Illinois, Fourth District, affirmed the conviction, one justice writing a strong dissent, 60 Ill.App.3d 947, 18 Ill.Dec. 345, 377 N.E.2d 830 (1978). The Supreme Court of Illinois denied the petition for leave to appeal, 71 Ill.2d 612 (1978), and petitioner now seeks a writ of habeas corpus under 28 U.S.C. § 2254. He properly raises two issues, both decided against him at trial and on appeal: whether his right to counsel, as defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, was denied while in custody following his arrest; and whether the collateral estoppel principle of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), prohibited introduction of evidence of the acts thought to constitute deviate sexual assault at his second trial for rape. Petitioner has moved for summary judgment under F.R.Civ.P. 56.

I

A.

Early on the afternoon of July 30, 1976, a sexual encounter occurred between petitioner, then the janitor at a house of worship in Decatur, Illinois, and the complainant, the secretary of the congregation. The Decatur police arrested petitioner at his home next door late that afternoon. After being booked, petitioner was taken directly to one of the offices in the detective division. An interview began at 7:40 p. m., by a reading to petitioner of the department's standard "Custodial Interview Advice" form. Petitioner also read a copy of the form silently, and he wrote and initialed notations on it as follows: (The "rights," etc., are shown as printed, with petitioner's notations shown in CAPITALS):

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

Petitioner also told the detectives orally that he wanted a lawyer present. One of these first two detectives later testified¹ that petitioner was then given the telephone and that he called an attorney, talked to him for a few minutes, hung up, and told the two detectives that the attorney had told him to talk to them. The other detective testified in more detail on this sequence of events: that petitioner said that he did not have any money and wanted an attorney appointed; that he was told this would require going to court the next day; that only then did he ask to call the attorney; and that when he hung up he said he was ready to talk. This interview lasted fifty minutes. Petitioner made no incriminating statements at that interview and denied any sexual contact with the complainant.

Petitioner was taken to a cell about 8:30 p. m., where he remained until 1:36 a. m., when he was again interviewed by another detective, who read petitioner his rights from the exact same form that had been used at the first interview, and which bore petitioner's notations. He did not have the petitioner re-initial the form and did not ask about the handwritten statements on it; but he testified that petitioner told him that he had talked to an attorney, who had advised him to talk to any detective. At this interview, which lasted until about 2:30 a. m., petitioner continued to deny any sexual involvement with the complainant on July 30, but admitted having kissed her on previous occasions.

At 9:30 a. m. on July 31, petitioner was again interviewed by a fourth detective. He again read to petitioner from the form with the handwritten demands for counsel, and again did not ask petitioner to re-initial or amend the form, but testified that petitioner told him he understood his rights. He testified that he asked petitioner about the demands written on the form, and whether he wanted an attorney, and that petitioner "declined and said no, he was perfectly willing to converse with me about the arrest." During this interview, which lasted about one hour and fifteen minutes, petitioner admitted to sexual activity between himself and the complainant the previous day, and to the possibility of oral-genital contact and penetration.

While petitioner contradicted much of the testimony of all four officers on what took place, this court, as did the state courts, credits their testimony on disputed points. Petitioner's explanation of talking, when he knew so well he didn't need to, was "by that point after my repeated request for an attorney, I was under the impression, well, anything I say now can't be used because they denied me my rights to an attorney."

B.

Counsel was appointed to represent petitioner five days later, and a motion to suppress was filed. The court's detailed written order denying the motion reviewed the testimony summarized above and found that petitioner was properly advised of his rights "in apt time"; that he understood those rights; and that he "waived his constitutional rights by talking at all interviews in that at the first two interviews he talked with the officers and denied his guilt and at the third interview made admissions and exculpatory statements." The interviewing officers then testified about the statements made, over petitioner's renewed objection, at both trials. The Appellate Court majority noted that:

"the trial judge could have believed the officers * * * rather than the defendant and determined that the defendant freely decided to permit further interrogation after the phone call to the lawyer * * *. Furthermore, regardless of what the lawyer actually told the defendant, if the defendant actually told the officers that he had been advised to go ahead and talk, the officers were justified in considering that statement in determining whether to proceed." 377 N.E.2d at 834.

The court concluded that the trial court's factual determination was not contrary to the manifest weight of the evidence and therefore was not erroneous as a matter of law. Id.

II

Petitioner concedes that the warnings given him at the first interview were adequate, but argues that his rights were violated before the disputed telephone call to the attorney was ever placed, because he clearly demanded counsel on the form and questioning continued without counsel present. He bases this argument on Miranda language, as follows:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. This does not mean, as some have suggested, that each police station must have a `station house lawyer' present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time." 384 U.S. at 473-74, 86 S.Ct. at 1627-1628.

This passage, petitioner argues, obligated the police to cease all questioning as soon as he had demanded an attorney until one was present. This absolutist position must be rejected because the Supreme Court has implied strongly that an assertion of the right to counsel may be waived subsequently, without counsel having appeared, Brewer v. Williams, 430 U.S. 387, 406, 97 S.Ct. 1232, 51 L.Ed.2d 423 (1977), and the United States Court of Appeals for the Seventh Circuit has directly so held, United States v. Springer, 460 F.2d 1344, 1350 (7th Cir. 1972). Petitioner's assertion of his right to counsel did not make him a prisoner of that right, unable to waive it under any circumstances.

Respondent argues first that the trial court's findings of fact that petitioner waived his rights to silence and to counsel by talking are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Second, respondent argues that the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976),...