Montoya v. Collins, 90-7093

• Decision Date: 24 February 1992
• Docket Number: No. 90-7093,90-7093
• Citation: 955 F.2d 279
• Parties: Ramon MONTOYA, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 279

955 F.2d 279

Ramon MONTOYA, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 90-7093.

United States Court of Appeals, Fifth Circuit.

Feb. 24, 1992.

Rehearing and Rehearing En Banc

Denied March 24, 1992.

K. Duff Lewis, Washington, D.C. (Court-appointed), for petitioner-appellant.

Margaret Portman Griffey, Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, JOLLY and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Petitioner Ramon Montoya was convicted of capital murder after a jury trial in the 282nd Judicial District Court of Dallas County, Texas, and sentenced to death on May 5, 1983. He appealed to the Texas Court of Criminal Appeals, which affirmed his conviction on February 18, 1987, and denied his motion for rehearing on October 28, 1987. Montoya v. State, 744 S.W.2d 15 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988). After exhausting his post-conviction remedies in state court, Montoya filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas. The district court denied relief but issued a certificate of probable cause. Montoya appeals, and we affirm.

The Court of Criminal Appeals set out the facts of this case in its original opinion:

The testimony revealed that Officer John Pasco of the Dallas Police Department was shot and killed while trying to apprehend appellant. On January 16, 1983, at approximately 4:00 p.m., appellant and others were drinking beer in the vicinity of 1800 Park in the City of Dallas. When Pasco arrived, appellant began to move away from the group of people. Then Pasco began to pursue appellant individually, and appellant started to run. Pasco chased him. Appellant testified that while Pasco was chasing him, he attempted to remove a pistol from his waistband and throw it away so Pasco would not catch him with it. The weapon discharged and Pasco, who according to appellant had grabbed appellant's arm, was shot in the head. He died a few hours later.

Officer Jerry Loudermilk testified that, while on patrol duty, he received a call from Officer Pasco to "cover" him. When Loudermilk arrived at the scene, he saw that Pasco had been shot. Several other Dallas police officers were already at the scene: trying to help Pasco and interviewing witnesses. Loudermilk was informed that there was no description yet of the suspect.

Loudermilk returned to his patrol car and began to search the immediate area. While searching, he received information by radio describing the suspect as a short Latin male with a tattoo of a panther on his chest. He continued to search until 6:05 p.m. when he saw the appellant and stopped to talk to him "just for information." At the time, Officer Loudermilk "didn't have any idea" that the appellant was a suspect in the shooting. When Officer Loudermilk stepped out of his car and spoke in Spanish twice to the appellant, the appellant said nothing in response, but turned and started to run away. Officer Loudermilk pursued and detained the appellant. Loudermilk then lifted up the appellant's shirt, and saw the tattoo of a panther on the appellant's chest. He asked the appellant his name. After the appellant responded, Loudermilk placed him under arrest.

A subsequent search of appellant's home uncovered a .25 caliber automatic pistol. Ballistics determined it to be the weapon that fired the fatal shot.

744 S.W.2d at 18 (footnote omitted).

After Montoya was arrested, he was taken before a magistrate and arraigned on the charge of attempted murder of a police officer. Officer Pasco died that evening, and Montoya was presented to a magistrate on the new charge of capital murder the following morning. Montoya was subsequently taken to the Dallas Police Department and questioned. After waiving his rights, he executed a written confession in Spanish. Translated, it stated:

Yesterday, January 16, 1983, I was at a parking lot of some apartments at Hickory and Park. A policeman arrived. He was a patrolman, and he got out of the patrol car. I was going to leave, and he pointed the pistol and said something to me. I was running from the policeman. He chased me through the alley. He was getting closer, and I had the pistol in my right hand. I had the pistol from the time he started chasing me. When the policeman was about to catch me, he pushed me, and I fell on my back. I pointed the pistol at him and shot the policeman. I pointed at his chest when I fired. The policeman fell to the side of me. I got up and ran. I threw the pistol. I ran to my apartment and changed pants.

At the same time, Montoya consented to a search of his apartment, which revealed the murder weapon.

From the seventeen points of error he argued before the Texas Court of Criminal Appeals and the twenty grounds for relief he alleged in the district court, Montoya has distilled the challenge to his conviction and sentence to three arguments. We examine each of them in turn and find none meritorious.

I.

Montoya argues first that his interrogation by the Dallas Police Department violated his right to counsel under the Sixth Amendment and the prophylactic rule of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The state counters that Jackson does not apply to the facts of this case and that Montoya validly waived his right to counsel pursuant to Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). The district court concluded that the interrogation did not violate Montoya's constitutional rights. We agree with the district court.

When Montoya was taken before the magistrate, his Sixth Amendment rights attached. See Jackson, 475 U.S. at 629-30, 106 S.Ct. at 1407-08. Standing alone, however, the mere attachment of a defendant's Sixth Amendment rights does not bar police from attempting to interrogate him. See Patterson, 487 U.S. at 290, 108 S.Ct. at 2394 (rejecting petitioner's claim that "because his Sixth Amendment right to counsel arose with his indictment, the police were thereafter barred from initiating a meeting with him"). As long as the police administer Miranda warnings before proceeding, a defendant's voluntary decision to answer questions without claiming his right to have a lawyer present to advise him constitutes a "knowing and intelligent," and therefore valid, waiver of his Sixth Amendment right. Id. at 292-97, 108 S.Ct. at 2394-97. The district court found that "Montoya was fully advised of his rights under Miranda v. Arizona, and that he did not thereafter request appointment of counsel and proceeded to make the statement at issue." Thus, Montoya validly waived any Sixth Amendment right to counsel that arose merely from his appearance before the magistrate.

If the police-initiated interrogation did not violate the Sixth Amendment itself, argues Montoya, it at least violated the rule laid down in Michigan v. Jackson. There the Supreme Court held: "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." 475 U.S. at 636, 106 S.Ct. at 1411. It is undisputed that during Montoya's appearance before the magistrate, the magistrate appointed counsel to represent Montoya. On direct review, the Texas Court of Criminal Appeals considered the conflicting trial testimony and concluded:

[T]he record indicates the appellant did not request counsel.... The magistrate stated that he decided to appoint counsel to represent appellant because the appellant was charged with capital murder, not because the appellant requested the assistance of counsel.

... We hold that appellant did not assert his right to counsel at the [magistrate's] hearing.

Montoya, 744 S.W.2d at 26. Montoya's brief yields no reason to disturb the presumption of correctness accorded this finding by 28 U.S.C. § 2254(d). ¹

The rule of Jackson is invoked by the defendant's "assertion ... of the right to counsel." This language connotes an actual, positive statement or affirmation of the right to counsel. At no time did Montoya make such a statement or affirmation--as the state court found, he did not request counsel, and he said nothing at all when the magistrate appointed counsel for him. ² We do not say that by his silence Montoya "waived" any of his rights, for at any time subsequent to his appearance before the magistrate, including during his interrogation, Montoya could have asked to see a lawyer and Jackson would have barred any further police-initiated interrogation. Rather, Montoya never asserted, or invoked, his right to counsel in the first place. Cf. Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 494, 83 L.Ed.2d 488 (1984) (per curiam) ("Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together."). For purposes of Jackson, an "assertion" means some kind of positive statement or other action that informs a reasonable person of the defendant's "desire to deal with the police only through counsel." Jackson, 475 U.S. at 626, 106 S.Ct. at 1405 (quoting Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981)). This holding does not require a defendant to utter the magic words, "I want a lawyer," in order to assert his right to counsel. As Montoya points out, the Supreme Court "give[s] a broad, rather than a narrow, interpretation, to a defendant's request for counsel." Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987). But interpretation, whether broad or narrow, is only required when there is a "request" or an "assertion" in the first...