McCree v. Housewright, 82-1124

• Decision Date: 08 October 1982
• Docket Number: No. 82-1124,82-1124
• Citation: 689 F.2d 797
• Parties: Ardia V. McCREE, Appellant, v. Vernon HOUSEWRIGHT, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 797

689 F.2d 797

Ardia V. McCREE, Appellant, v.Vernon HOUSEWRIGHT, Director, Arkansas Department of Correction, Appellee.

No. 82-1124.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 29, 1982.

Decided Oct. 8, 1982.

William R. Wilson, Jr., Little Rock, Ark., for appellant.

Steve Clark, Atty. Gen. by Dennis R. Molock, Deputy Atty. Gen., Little Rock, Ark., for appellee.

Before HEANEY, Circuit Judge, and STEPHENSON and HENLEY, Senior Circuit Judges.

STEPHENSON, Senior Circuit Judge.

The question presented in this habeas corpus action is whether petitioner's video taped statement concerning a murder was improperly obtained by the police after petitioner had invoked his right to counsel.¹Petitioner alleges that his rights under the Fifth and Fourteenth Amendments were violated in the procedure leading up to the statement.The district court² concluded that because petitioner initiated communication with the police and because he knowingly and intelligently waived his right to counsel, this statement was properly admitted into evidence.We affirm.

Petitioner was convicted of felony murder on May 12, 1978, in a state court jury trial and was sentenced to life imprisonment without parole.On direct appeal, the Arkansas Supreme Court affirmed.McCree v. State, 266 Ark. 465, 585 S.W.2d 938(1979).Petitioner's request to proceed under Rule 37 of the Arkansas Rules of Criminal Procedure was denied, as was his request for rehearing to proceed under that rule.Petitioner brought this action pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas.After conducting an evidentiary hearing, the United States Magistrate issued proposed findings which the district court adopted in its denial of the writ of habeas corpus.Petitioner appeals.

I.BACKGROUND

Petitioner's conviction arose out of an incident which occurred at approximately 8:00 a. m., February 14, 1978, in which Evelyn Boughton, owner and operator of La Tienda Gift Shop and Service Station in Camden, Arkansas, was shot and killed in connection with a robbery.At approximately 2:00 that afternoon, petitioner was arrested in Hot Springs, Arkansas, and advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).At approximately 11:00 that evening petitioner was returned to Camden by Lieutenant Paladino of the Camden Police Department who advised petitioner of his rights both prior to leaving Hot Springs and after arriving in Camden.Upon arriving in Camden, petitioner was locked in his cell for the night without questioning at that time.

The sequence of events the following day, February 15, 1978, is unclear.The testimony of the police and of petitioner is in conflict.The district court, after conducting an evidentiary hearing, determined that on the morning of the 15th, petitioner was taken from his cell for processing, was again read his rights, and was briefly questioned until petitioner indicated that he might want an attorney, at which point the conversation ceased.Later that morning, he was visited by his wife, his brother, and James Pratt, an attorney from Camden.Petitioner testified that his brother thought that he might need a lawyer.According to the district court, at some later time, petitioner knocked on his cell door and stated that he had something to say but the police did not respond to this request at that time.³

At approximately 5:30 p. m., Lieutenant Paladino, ⁴ who had just returned to the police station, proceeded to petitioner's cell, apparently in response to McCree's earlier request to say something.Paladino asked petitioner whether he wanted to see him.Lieutenant Paladino testified that petitioner responded that he had something he wanted to tell the police.Immediately thereafter, Lieutenant Paladino contacted by telephone Robert Laney, a deputy prosecuting attorney, who then came to the police station.After Mr. Laney arrived, Lieutenant Paladino brought petitioner from his cell to the detectives' office to make a statement.The remaining facts are contained on the video tape which was played at trial:

MR. LANEY: Ardia, this is a videotape that's used to videotape.(Unintelligible).Ardia, I think you know this is about the investigation of a shooting down there and before we go any further I'd like for them to go over again-I know you've been read what your rights are.If you would, I would like for them to read them again.Routine standard procedure.Okay?

DEFENDANT: All right.

LIEUTENANT PALADINO: Six ten p. m. on the 15th.Before we ask you any questions you have to understand your rights.You have the right to remain silent.Do you understand that?

DEFENDANT: Yes, I do.

LIEUTENANT PALADINO: Anything you say can and will be used against you in a court of law.Do you understand that?

DEFENDANT: Yes.

LIEUTENANT PALADINO: You have the right to talk to a lawyer and have him present with you while you're being questioned.Do you understand that?

DEFENDANT: Yes, I do.

LIEUTENANT PALADINO: If you can't afford one, one will be appointed to represent you before any questioning if you wish.Do you understand that?

DEFENDANT: Yes, I do.

LIEUTENANT PALADINO: If you decide at any time to exercise these rights and not answer any questions, or make any statements, do you understand that?

DEFENDANT: Yes, I do.

LIEUTENANT PALADINO: Ardia, earlier this morning we talked with you.At that time you said that you requested an attorney.Is that right?

DEFENDANT: Well, yes because my brother did say he was thinking of hiring one himself.I don't know.I don't know about an attorney until I kind of find out what kind of bond is set or whatever it is before I really you know because I don't know what it is, really and truly, I haven't told you the full and true statement about it, and I'm going to now, and I realize that I'm in trouble, and it's just nothing I can do about it.I should have done it earlier.Might have been-saved the whole thing.

LIEUTENANT PALADINO: Do you still want an attorney at this time before you talk to us?

DEFENDANT: I want to tell you just exactly what happened.

LIEUTENANT PALADINO: You want to talk at this time?

DEFENDANT: Right.This here, I know-I know it's going to be hard to believe, that's one reason I didn't-I just stayed on the statement it was because I been had, I been took.

LIEUTENANT PALADINO: You say you don't desire legal counsel at this time?

DEFENDANT: Not at this time.

MR. LANEY: We're going to listen to you, Ardia.Tell us what...

DEFENDANT: This is exactly what happened....

The findings of fact are vitally important to the outcome in this case.Our review of the fact findings made by the district court after an evidentiary hearing is controlled by the clearly erroneous rule.Rule 52 of the Federal Rules of Civil Procedure states: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."There is a conflict in testimony between petitioner and the police concerning the essential facts of this case.Both versions are credible.The district court, however, heard the evidence and was able to observe the demeanor of the witnesses.We cannot say that its findings are clearly erroneous.

II.ANALYSIS

In Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court held that the Fifth Amendment guarantees an accused the right to have counsel present during custodial interrogation.⁵If an accused requests counsel, "the interrogation must cease until an attorney is present."Id. at 474, 86 S.Ct. at 1628.The right to counsel in such a situation is necessary, the Court concluded, because in-custody police interrogation of an accused "contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely."Id. at 467, 86 S.Ct. at 1624.

The Court recently reaffirmed the Fifth Amendment right to counsel during custodial interrogation in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378(1981).In Edwards, petitioner was informed of his Miranda rights and subsequently was interrogated by the police.Petitioner initially responded to questioning, but then told police that he wanted an attorney "before making a deal."Id. at 479, 101 S.Ct. at 1881.At that point, police ceased questioning.The next morning, two detectives came to the jail to see the defendant.Edwards stated that he did not want to talk to anyone.The guard told Edwards that "he had" to talk and then took him to meet with the detectives.The officers identified themselves, stated that they wanted to talk to Edwards, and read defendant his Miranda rights.Thereafter, Edwards made a statement implicating himself in the crime.The Supreme Court held that the statement could not be admitted into evidence:

when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.We further hold that an accused, such as Edwards, 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.

Id. at 484-85, 101 S.Ct. at 1884.Appellant asserts that the procedure leading up to the video taped statement is directly proscribed by Edwards.

Three issues are presented in this appeal: (1) whether petitioner invoked his right to counsel; (2) who initiated the subsequent communication between petitioner and the police; and (3) whether petitioner...