Neuschafer v. Whitley

• Decision Date: 11 May 1987
• Docket Number: No. 86-1909,86-1909
• Citation: 816 F.2d 1390
• Parties: Jimmy NEUSCHAFER, Petitioner-Appellant, v. Harol WHITLEY, Warden, Nevada State Prison, and Brian McKay, Attorney General of the State of Nevada, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1390

816 F.2d 1390

Jimmy NEUSCHAFER, Petitioner-Appellant, v. Harol WHITLEY, Warden, Nevada State Prison, and Brian McKay,

Attorney General of the State of Nevada,

Respondents-Appellees.

No. 86-1909.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 1987.

Decided May 11, 1987.

N. Patrick Flanagan, III, Reno, Nev., for petitioner-appellant.

Brian Randall Hutchins, Carson City, Nev., for respondents-appellees.

Appeal from the United States District Court for the District of Nevada.

Before CHAMBERS, KENNEDY and HALL, Circuit Judges.

KENNEDY, Circuit Judge:

The appellant Neuschafer seeks a writ of habeas corpus from the United States courts after the Nevada judicial system has reviewed and affirmed his conviction and sentence. Neuschafer v. State, 101 Nev. 331, 705 P.2d 609 (1985). Neuschafer killed a prison inmate and was convicted of first degree murder with aggravating circumstances as defined by Nevada law. He received the death sentence. Neuschafer's crime was committed while he was serving two life sentences for the rape and first degree murder of two young women. The United States District Court for the District of Nevada denied Neuschafer's petition for writ of habeas corpus, and after we heard oral argument on appeal from that decision, we issued an order of limited remand to the district court for further findings. Neuschafer v. McKay, 807 F.2d 839 (9th Cir.1987). The district court held an evidentiary hearing and made further specific findings of fact and conclusions of law, and we have reconsidered the appeal upon further oral argument. We now reject petitioner's constitutional arguments and affirm denial of the writ by the district court.

Neuschafer's first argument, and the one that led us to remand the case for further proceedings, is that the prosecution used a confession obtained in violation of the standards set forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards bars the use of any confession obtained after the suspect has requested a lawyer, unless the suspect has initiated the interview leading to his confession and has knowingly and intelligently waived his right to counsel before confessing. Id. at 484-85, 486 n. 9, 101 S.Ct. at 1884-85, 1885 n. 9.

As explained in our first opinion, the issue before us involves Neuschafer's statement on August 21, 1981, which was the third of three confessions or admissions that were introduced in evidence. 807 F.2d at 840; see 705 P.2d at 612. Before making the August 21 statement, Neuschafer had written two incriminating notes, which were admitted at trial and which can be characterized as confessions.

Still another statement, made after the notes were written but before the August 21 statement, was obtained in violation of the petitioner's Miranda rights. On August 18, officers Ricards and Forrest questioned Neuschafer in a maximum security unit of the prison. Despite Neuschafer's request for an attorney, the officers did not provide him with counsel. Instead, they continued the interview until they elicited an incriminating statement. This statement was not admitted in evidence.

On August 21, officers Ricards and Forrest, joined this time by officer Efford, again interviewed Neuschafer and obtained the incriminating statement here in issue. We remanded for further findings, noting that counsel was requested at the August 18 interview, so that the Edwards rule must have been satisfied before the statement from the August 21 interview could be admitted in evidence. The district court found that the August 21 interview was initiated by Neuschafer and that the confession was made after a waiver of the right to counsel. Those findings are fully supported by the evidence.

The district court's findings were as follows:

Sometime just prior to 8:15 p.m. on August 20, 1981, Petitioner handed a note to correctional officer Stahl who was on duty in Max Unit. Stahl in turn handed this note to correctional officer Glen Blomgren who, as senior correctional officer on duty, was in charge of the unit. Blomgren who was stationed in the security office of the unit, examined the note. Blomgren cannot recall verbatim the specific contents of the note, but he does remember that the note indicated Petitioner's great desire to see somebody in a "position of authority" to talk about why he was in the Max Unit. Blomgren also remembers that the note indicated an intimate knowledge of the murder weapon used, describing the material of which it was made and the way it was knotted. To Blomgren the note was "confessionary" and involved an inmate murder. ²

Blomgren took the note and proceeded to Petitioner's cell with the intent to determine the "importance" of it. When he arrived at Petitioner's cell, Petitioner told Blomgren that the Johnson death was not a suicide. He asked Blomgren if the note would get attention.

Blomgren cannot recall the exact date of these occurrences regarding this particular note, but specifically confirms that the note was received around 8:15 p.m. The prison's daily log makes clear, however, that Petitioner's note requesting a meeting with the authorities was delivered to Stahl and Blomgren on August 20, 1981.

After the discussion with Petitioner about the note, Blomgren notified the Shift Commander for the prison, Lt. Francis Smith. Lt. Smith (in his own handwriting) documented the receipt of the note in the daily log for that shift of the watch at the prison (Exhibit F):

"8:15 P M Phone call complete in Max unit. ³ Also c/o Blomgren received a note from Inmate Neushafer (sic) which is being sent to investigations."

The preponderance of the evidence is that the note was then sent directly to the Investigation Division of the Prison and then on to the Carson City Sheriff's office, which (with the assistance of the Investigation Division) investigated major crimes at the prison at that time.

Sometime after the note reached the Carson City Sheriff, officer Ricards of the Investigation Division arranged for an interview between Petitioner and Detective Michael Efford of the Sheriff's office. Ricards had been told that Petitioner wanted to talk to the police. Ricards told Efford Petitioner had asked to talk to Efford. Efford was not told that Petitioner had previously been interviewed and requested an attorney.

At approximately 2:30 p.m., on August 21, 1981, Petitioner was taken from Max Unit to another area in the prison for an interview with Efford, Ricards and Ed Forrest. At the interview Efford read Petitioner his Miranda rights. Petitioner indicated he understood his rights and did not request an attorney. (See Exhibit B.) He proceeded to give another incriminating statement. This statement was read into the record at trial over objection of defense counsel.

Neuschafer's claim that he did not initiate the interview is refuted in the record by documentary evidence, by the testimony of officers Smith and Blomgren, and by inconsistent statements of Neuschafer in the remand hearing itself and at the criminal trial. The trial judge said also that Neuschafer's testimony was discredited by his demeanor. Though we must sustain the findings of fact upon the...