Nash v. Estelle
| Decision Date | 21 June 1979 |
| Docket Number | No. 75-3772,75-3772 |
| Parties | Ira NASH, Jr., Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John L. Hill, Atty. Gen., John Pierce Griffin, Asst. Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Joe B. Dibrell, Jr., Chief, Enforce. Division, Robert E. DeLong, Jr., Asst. Attys. Gen., Austin, Tex., for respondent-appellant.
Michael A. Hatchell, Tyler, Tex. (Court-appointed), for petitioner-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before BROWN, Chief Judge, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges. *
Ira Nash, Jr., was convicted in a jury trial of murder with malice and sentenced to imprisonment for one hundred years. The district court, without holding an evidentiary hearing, granted Nash's petition for a writ of habeas corpus on the grounds that a written confession introduced against Nash had been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964). A panel of this court reversed the grant of habeas corpus in a 2-1 decision. Nash v. Estelle, 560 F.2d 652 (5th Cir. 1978). On rehearing en banc, we reverse the grant of habeas corpus relief.
Henry Moore, a taxi driver, was found shot to death in his cab on February 20, 1969, on an unimproved road near the outskirts of Tyler, Texas. Moore's watch and money were missing. A witness placed the petitioner, Ira Nash, in Moore's cab shortly before Moore's body was discovered.
Nash was arrested on May 26, 1969, pursuant to a warrant, and was brought before a magistrate and informed of his Miranda rights. While in the custody of the deputy sheriff, Nash orally confessed to the murder of the cab driver. The oral confession was not introduced at Nash's state trial and is not in dispute here. On the morning of June 2, 1969, Nash was brought into the office of Assistant District Attorney F. R. Files, Jr., to discuss the impending murder charge. During the course of their tape recorded conversation Nash again confessed to the murder; he later signed a written statement prepared from that recorded conversation. The next day Nash and Files drove to the murder scene and Nash confessed yet a third time to his crime. A written statement derived from that inspection was prepared and it too was signed by Nash.
The dispute on appeal is whether District Attorney Files violated Nash's right to the presence of counsel during the course of their initial June 2 conversation. Resolution of the issue turns on the interpretation to be placed on the following dialogue between Nash and Files:
In granting Nash's habeas petition, the district court ruled that Nash had invoked his constitutional right to the presence of counsel at the interrogation which produced his first written confession and that as a matter of law that right to counsel could not be waived.
United States v. Priest, 409 F.2d 491, 493 (5th Cir. 1969), held:
Where there is a request for an attorney prior to any questioning, as in this case, a finding of knowing and intelligent waiver of the right to an attorney is impossible. . . . (T)he suspect has an absolute right to delay interrogation by requesting counsel. If such a request is disregarded and the questioning proceeds, any statement taken thereafter cannot be a result of waiver but must be presumed a product of compulsion, subtle or otherwise.
We construe Priest to bar inquiry as to waiver when, prior to any questioning, the suspect makes an unequivocal request for an attorney's presence, as was done in Priest, and when the request is disregarded and the questioning proceeds. See United States v. Massey, 550 F.2d 300 (5th Cir. 1977). Our cases subsequent to Priest have also made it clear that Priest is inapplicable...
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...interrogation, and would be proper whether or not the defendant's request for counsel was "equivocal." See Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979) (en banc).the decision in Edwards v. Arizona, supra, and which the Edwards majority approved: "The rule in the Fifth Circuit is that a kno......
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