Nom v. Spencer

• Decision Date: 29 July 2003
• Docket Number: No. 02-2173.,02-2173.
• Citation: 337 F.3d 112
• Parties: Sarourt NOM, Petitioner, Appellant, v. Luis SPENCER and Thomas F. Reilly, Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

337 F.3d 112

Sarourt NOM, Petitioner, Appellant, v. Luis SPENCER and Thomas F. Reilly, Respondents, Appellees.

No. 02-2173.

United States Court of Appeals, First Circuit.

Heard May 8, 2003.

Decided July 29, 2003.

Daniel J. Johnedis, for petitioner.

Eva M. Badway, Assistant Attorney General, Criminal Bureau, with whom Thomas F. Reilly, Attorney General, was on brief, for respondent.

Before BOUDIN, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

This petition for habeas corpus relief challenges the propriety of a question asked by a police officer after the petitioner had unambiguously invoked his Fifth Amendment right to counsel.

I.

On September 13, 1995, a Middlesex Superior Court jury convicted the petitioner, Sarourt Nom ("Nom"), of the first degree murder of his wife and unlawful possession of a firearm. The court sentenced Nom to life in prison. On November 18, 1997, the Massachusetts Supreme Judicial Court ("SJC") affirmed the convictions. After exhausting his further state court appeals,¹ Nom petitioned the federal district court for habeas corpus relief under 28 U.S.C. § 2254, claiming (1) that his Fifth Amendment right to counsel was violated when, after a prior invocation of his right to counsel, a police officer asked Nom why he had requested counsel, and (2) that his Sixth Amendment right to effective assistance of counsel was violated by trial counsel's failure to object to the trial judge's jury charge on malice.² The district court denied the petition on both grounds, and issued a certificate of appealability on the Fifth Amendment issue. We affirm.

II.

In its opinion on Nom's direct appeal, the SJC summarized the relevant facts. Commonwealth v. Nom, 426 Mass. 152, 686 N.E.2d 1017, 1020 (1997). On April 17, 1994, in Lowell, Massachusetts, Nom's wife was found dead in Nom's parked car with a gunshot wound to the head. That morning, police officers from the Lowell police department spoke by telephone with Nom, who agreed to accompany them to the police station. In response to questioning at the police station, Nom initially told Inspector John Guilfoyle and Trooper James M. Connolly that he had remained at home throughout the night. He stated that his wife had left at some point during the evening with his car and that he had not seen her or his car since then. At this point, the police officers had not given Nom his Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Subsequently, the police received information from Nom's family members that he had gone out with his wife the previous evening and had not remained home as he stated. In response to this information, a police officer advised Nom of his Miranda rights at approximately 12:35 p.m., and Nom immediately waived those rights. However, when the police subsequently asked to test his hands for gunshot residue, Nom stated that he wanted an attorney present. All questioning ceased and all police personnel left the room. Trooper Connolly then reentered and sat down but did not speak. Nom shrugged his shoulders and Connolly did the same. Nom then said, "I admit it." Connolly replied, "What?" and Nom then said, contrary to his initial statement, that he was out at a restaurant with his wife the night of the shooting. Inspector Guilfoyle then reentered the room and asked Nom why he wanted an attorney. Nom replied that he wanted an attorney only for the purpose of witnessing the gunshot residue test and that he would continue to talk to the police without an attorney present.³ At this point, Nom was again given his Miranda warnings orally and by a card which he signed.

In the ensuing hours, Nom gave the police a second and then a third written statement regarding his involvement in the shooting. In the second statement he claimed that, while he was in the restroom of the restaurant, his wife and a man with whom she had been flirting left in Nom's car. In the third statement, Nom said that he saw his wife leaving the restaurant with the man. He then followed them to the car and got into an altercation with the man, which ended when the man fired a handgun at Nom and drove off with Nom's wife. Soon after giving this last statement, Nom was arrested. The next morning, after learning that the police had gathered evidence identifying him as the shooter, Nom gave a fourth written statement asserting that he had shot his wife accidentally during an argument.

Nom moved to suppress the statement he made before the police advised him of his Miranda rights (about his wife leaving with his car); the trial court granted this suppression motion. Nom also moved to suppress his statements made after he received his Miranda warnings, arguing that (1) they were all tainted by the fact that his first statement was secured in violation of his Miranda rights, and (2) some of the statements were made in response to questions he was asked after he had unambiguously invoked his right to counsel. The trial judge denied this motion to suppress on two grounds: (1) the second, third and fourth statements were not tainted because his initial statement was not incriminating — Nom said that he had neither seen nor heard from his wife since she left home with his car the previous evening;⁴ and (2) Nom's request for counsel was "scrupulously honored" since all questioning ceased and was only resumed when Nom initiated further questioning by spontaneously stating "I admit it." The trial court found that Inspector Guilfoyle's inquiry as to why Nom wanted an attorney was "reasonable under the circumstances given ... [Nom's] spontaneous statement to Connolly." Commonwealth v. Nom, No. 94-864, slip op. at 13. On direct appeal, the SJC agreed with these determinations.

On March 6, 2000, Nom filed a timely habeas petition in the United States District Court for the District of Massachusetts asserting, inter alia, that Inspector Guilfoyle violated his Fifth Amendment right to counsel when he asked Nom why he had requested a lawyer. The district court denied the writ: "Although the questioning of a suspect's request for an attorney is constitutionally impermissible under ordinary circumstances, the SJC did not unreasonably apply federal law to the facts as it found them in this case." Nom v. Spencer, No. 00-10413, 2002 U.S. Dist. LEXIS 16099, at *6 (D.Mass. Aug. 28, 2002). Petitioner now appeals.

III.

The standard of review is set forth in the AEDPA statute, 28 U.S.C. § 2244-2266 (2002). On the grounds pertinent to this case, a federal court may grant habeas relief to a state prisoner if it finds, inter alia, that the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law...." 28 U.S.C. § 2254(d)(1). This section "defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "contrary to" prong, a federal court may grant the writ if the state court "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 412-13, 120 S.Ct. 1495. Under the "unreasonable application" prong, a federal court may grant the writ if the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. With respect to this second prong, the state court's determination must be unreasonable, not simply incorrect, and unreasonableness is an objective standard. Id. at 410-11, 120 S.Ct. 1495. "If it is a close question whether the state decision is in error, then the state decision cannot be an unreasonable application." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002).

IV.

In affirming the trial court's conclusion that Nom's Fifth Amendment right to counsel was not violated, the SJC noted the trial court's finding that "[t]hroughout the morning of his custody, the defendant spoke freely with the police," Nom, 686 N.E.2d at 1022, and only requested an attorney when the police attempted to test his hands for blood and gunshot residue. At that point, "all questioning ceased" until Nom "initiated further conversation by stating `I admit it.'" Id. (emphasis in original). The SJC agreed with the trial court that Inspector Guilfoyle's subsequent inquiry as to why Nom wanted an attorney was "no more than a request for a clarification of the inconsistency between his earlier request and his subsequent initiation of conversation with Trooper Connolly," and was "neither designed nor reasonably likely to elicit an incriminating response." Id.

Nom argues that the SJC's decision was contrary to the Supreme Court's decision in Smith v. Illinois, 469 U.S. 91, 100, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), because it used the inconsistency between Nom's request for counsel and his subsequent initiation of conversation with Trooper Connolly to cast retrospective ambiguity on the clarity of his "crystal clear" invocation of his right to have an attorney present. Nom also argues that the SJC's decision was "an unreasonable application of clearly established federal law, as determined by the Supreme Court" in Miranda, and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and their progeny. We turn to those contentions.

A. "Contrary to ... clearly established Federal law"

To assess Nom's argument that the SJC's decision was in direct conflict with the Supreme Court's holding in Smith v. Illinois, we first note the careful distinction drawn by the Supreme Court in that case between the defendant's initial invocation of the right to counsel and his subsequent...