Maglio v. Jago

• Decision Date: 03 July 1978
• Docket Number: No. 77-3331,77-3331
• Citation: 580 F.2d 202
• Parties: Daniel John MAGLIO, Petitioner-Appellant, v. Arnold R. JAGO, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 202

580 F.2d 202

Daniel John MAGLIO, Petitioner-Appellant, v. Arnold R. JAGO, Superintendent, Respondent-Appellee.

No. 77-3331.

United States Court of Appeals Sixth Circuit.

Argued Dec. 1, 1977.

Decided July 3, 1978.

Peter Rosenwald, Cincinnati, Ohio (Court-appointed), for petitioner-appellant.

Daniel J. Maglio, pro se.

William J. Brown, Atty. Gen. of Ohio, Dennis L. Sipe, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before PECK and MERRITT, Circuit Judges, and THORNTON, ^* Senior District Judge.

PECK, Circuit Judge.

Daniel Maglio, a 16-year-old runaway, was arrested while driving a car which belonged to a man who had been found dead in his apartment that morning. Maglio was taken to police headquarters for questioning, and his Miranda rights were read to him by Police Captain Traub. Traub asked Maglio if he would waive his rights and answer questions, and Maglio replied, "Maybe I should have an attorney." Traub told Maglio he couldn't have an attorney then, but that he would have to wait until the next day in court, when an attorney would be appointed for him. Traub told him again that he didn't have to talk without a lawyer, but continued the questioning, asking how the boy got the car. ¹ Maglio said he didn't have anything to hide, and finally, in response to further questions, told a story about purchasing the car, then changed his story and confessed to the murder. ²

After this oral confession, the state court prosecutor was contacted, who arrived about 45 minutes later to tape-record the confession. Before beginning, the prosecutor again explained Maglio's rights, and the following exchange took place:

"Q. All right, do you further understand that before you, you would talk with us that you could have a lawyer here present with you, do you understand that."

"A. Yea, but I have to get a lawyer when I go to court. I can't afford it."

"Q. Well, let's go back up here. Let me ask you this question again. Do you understand that before you would talk to me or talk to the officers that you have a right to have a lawyer present with you before you talk to us. Do you understand that you have that constitutional right?"

"A. Yea, I know I got it."

"Q. Do you understand that?"

"A. Yea."

"Q. Okay, the next question is this. Do you understand further that if you want a lawyer but didn't feel that you could afford one, that we would have to appoint one for you before you talked to us. Do you understand that?"

"A. Before I did talk to you?"

"Q. Yea, do you understand that duly appointed for you?"

"A. I understand it now. It's not the way it seemed before, but it doesn't matter."

"Q. Well, do you understand that right?"

"A. Yea."

"Q. Now, do you understand that if you would decide to talk with us that you could stop talking at any time that you want to, that you can just cease and be quiet? That's your constitutional right. Do you understand that?"

"A. Yes, sir."

Maglio then repeated his earlier confession. The substance of the two confessions was identical.

Maglio was charged as an adult offender with aggravated murder and aggravated robbery. A pretrial hearing was held on the admissibility of the two confessions, and the trial judge ruled that Maglio's rights were adequately explained, that he had "intelligently and knowledgeably" waived his right to counsel, and that the confessions were voluntary. They were admitted into evidence, and a jury found Maglio guilty of the lesser offence of murder and aggravated robbery.

On appeal, the Ohio Court of Appeals held that Maglio's Miranda rights had been violated by Traub's questioning, but that the error was harmless because it did not taint the subsequently recorded statements. It held that the later confession was not directly derived from the first, and that Maglio's rights had been thoroughly reexplained, so the second statement was not "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The court also relied on its conclusion that the police misconduct merely violated the "prophylactic" standards of Miranda, and did not abridge Maglio's constitutional rights. The Ohio Supreme Court refused to review the conviction.

On petition for habeas corpus relief, the district court took a different tack in denying Maglio relief. It decided that the oral statements to Traub were admissible, and thus that there was no need to consider whether the subsequent statement was tainted. The state appellate court had held that Miranda requires clear, unambiguous warning as to the rights of an accused, and it held that informing a suspect in one breath that he had a right to counsel and in the next that he could not have a lawyer until the next day was a "subtle deception, or at least misleading." The appellate court was following the lead of the Seventh Circuit Court of Appeals, which held in United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972) that such warnings were inadequate:

We hold that the warning given here was not an "effective and express explanation;" to the contrary, it was equivocal and ambiguous. In one breath appellant was informed that he had the right to appointed counsel during questioning. In the next breath, he was told that counsel could not be provided until later. In other words, the statement that no lawyer can be provided at the moment and can only be obtained if and when the accused reaches court substantially restricts the absolute right to counsel previously stated; it conveys the contradictory alternative message that an indigent is first entitled to counsel upon an appearance in court at some unknown, future time. The entire warning is therefore, at best, misleading and confusing and, at worst, constitutes a subtle temptation to the unsophisticated, indigent accused to forego the right to counsel at this critical moment.

Id. at 1250. The district court disagreed, noting that there is a split among the circuits on the question of whether such warnings are adequate, and that the Sixth Circuit had not decided the issue. The district court preferred to follow the lead of the Fifth Circuit, which held in United States v. Lacy, 446 F.2d 511 (5th Cir. 1971), that so long as the suspect was adequately informed that he did not have to answer questions without a lawyer, telling him that he would have to wait until later to talk to a lawyer did not violate his Miranda rights.

Both the Ohio Court of Appeals and the district court focused on the adequacy of the warnings given Maglio. However, we conclude that we need not decide whether the protective requirements of Miranda have been violated here. Rather, we hold that Maglio was denied his constitutional right to counsel, and his confessions were therefore improperly admitted. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

Once adversary proceedings begin against an individual, he or she has the right to legal representation when the government conducts an interrogation. The courts indulge in every reasonable presumption against waiver of that right, and the burden of proof is on the State to show an "intentional relinquishment of a known right." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Furthermore, the question of waiver is not one of historical fact, but of federal constitutional law. Brewer, supra, 430 U.S. at 402-404, 97 S.Ct. 1232.

The burden is on the State to establish waiver in every case in which it seeks to introduce a statement taken without the presence of counsel. That burden becomes far more difficult, if not impossible, to sustain when the record shows that a request for counsel was made which was not honored before questioning continued. Of course, there are times when it is not clear that a suspect is in fact asserting the right to counsel. Sometimes, a defendant may simply be seeking further information about his or her rights. Miranda gives some guidance, mandating that questioning must stop if the defendant "indicates In any manner and at any stage of the process that he wishes to consult with an attorney before speaking." 384 U.S. at 445, 86 S.Ct. at 1612 (emphasis added). We have little difficulty in finding that Maglio was attempting to assert his right to an attorney when he told Captain Traub that "maybe he ought to have one." In any case, Captain Traub clearly interpreted the comment as a request for an attorney, since he immediately said the questioning would have to stop, and qualified his earlier offer of counsel by telling Maglio he would have to wait until the next day to have a lawyer appointed for him. Unfortunately, the Captain did not honor his own recognition of the law but continued to probe until he obtained a confession. The only plausible object of Traub's continued questioning was to break down the suspect's attempt to assert his rights and elicit a confession.

The question of whether a waiver of the right to counsel is possible once that right has been asserted, but before consultation with an attorney, has not been decided by this Court, and not directly by the Supreme Court. However, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 624 (1966), and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (White, J., concurring), strongly suggest that there is a per se rule barring custodial interrogation of a suspect after a request for counsel has been made. In Miranda the Court said:

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.

384 U.S. at 474, 86 S.Ct. at 1628 (emphasis added). In Mosley, Mr. Justice White emphasized that while it...