Pope v. Zenon
| Citation | 69 F.3d 1018 |
| Decision Date | 04 January 1996 |
| Docket Number | No. 93-35164,93-35164 |
| Parties | 95 Cal. Daily Op. Serv. 8585, 95 Daily Journal D.A.R. 14,833 Charles S. POPE, Petitioner-Appellant, v. Carl ZENON, Superintendent, OSCI, et al., Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Dennis N. Balske, Assistant Federal Public Defender, Portland, Oregon, for petitioner-appellant.
Robert M. Atkinson, Assistant Attorney General, Salem, Oregon, for respondents-appellees.
Appeal from the United States District Court for the District of Oregon.
Before: POOLE and TROTT, Circuit Judges, and KING, * District Judge.
Charles S. Pope is a convicted murderer serving a life sentence in an Oregon penitentiary. He timely appeals the district court's denial of his petition for a writ of habeas corpus. His principle claim is that evidence obtained by homicide detectives in violation of the rules of custodial interrogation established by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), fatally tainted his conviction. Although we agree with Mr. Pope that the detectives violated Miranda by subjecting him to custodial interrogation before advising him of his constitutional rights, and that it was error to use the traceable product of this improper interrogation against him, we are convinced that this transgression did not--under the facts and circumstances of this case--have any "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). Accordingly, we affirm the district court's denial of his petition.
The pertinent facts inevitably provide an essential part of the means required to assess a claim such as Mr. Pope's. As George Williams once noted, "The continued success of flying fishes ... absolutely depends upon their propensity for falling back into the water after they emerge." 1 Thus, we begin with a review of what happened to Mr. Pope after the police arrested him for the murder in the Majestic Hotel of James Kennedy. Charles Kokes, one of Mr. Pope's prosecutors, will outline the story for us as he did to the state trial judge in a pretrial suppression hearing.
Initially, when the detectives went in and talked to the defendant, before they advised him of his Miranda rights, they had a couple of pieces of evidence. They had his signature on a booking document from a previous booking and they had his signature on a registration card from the hotel where the homicide occurred. They confronted him with the signatures and asked him about his handwriting and whether it was the same. I believe they also confronted him with the fact that they had found a fingerprint on the registration card. So the defendant's responses to those statements will be an issue, I suspect, as no Miranda rights were read prior to that initial confrontation with the defendant.
Then the defendants were [sic] advised of their rights per Miranda. The defendant made the initial brief admission that he knew what it was about and he had stabbed this man. That, in conjunction with his questions about his rights. So an issue will be whether that statement is a voluntary, spontaneous statement.
Then the officer's Miranda clarification. The defendant had asked, "Do I get a lawyer now?" is the question he asked. The detectives told him when a lawyer would be appointed. And after that, the defendant made a second, more detailed Finally, the last statement that I can tell will be in contention is the taped admission that the Court will hear. Prior to the taped admission there was a complete readvisal of Miranda and a complete reclarification of the issue of the availability of a lawyer and when he would get one. So those four statements are all in a different posture.
admission to the detectives. So this statement occurs after the clarification, after the Miranda rights advisal.
I would like to put on my evidence and the attempt to make sense of how they all fit together.
In that same suppression hearing, Detective McDonald then filled in the details.
Q (By the Prosecutor) Which Detective Division are you assigned to?
A (By Detective McDonald) I'm assigned to the homicide detail.
Q Were you the assigned detective to investigate a homicide, a person named James Edward Kennedy?
A Yes.
Q Pursuant to that investigation on the 22nd of July of 1986 at about 3:45 p.m., did you and detective Kent Perry interview the defendant Charles Pope at the Justice Center?
A Yes, we did.
Q Prior to advising the defendant of his rights per Miranda, did you or Detective Perry speak to the defendant?
A Yes, I did.
Q Would you describe to the Court what that conversation consisted of, including any responses that the defendant may have made.
A We escorted the defendant from a holding room to an interview room where Detective Perry joined us. I initially introduced ourselves and told him who we were, that we were detectives. I told him that we were conducting a criminal investigation and that that investigation had linked him to the crime we were investigating.
I then showed him a photocopy of a fingerprint card used by our Identification Division that showed rolled ink fingerprints of an individual on the card that said "Charles Pope." I asked the defendant if that was his signature on the bottom of the card and he told me that it was.
I then showed him a registration card from the Majestic Hotel which also bore the signature Charles Pope, and I asked him if that was his signature on that document and he said it was. I then informed him that a latent fingerprint had been obtained from the hotel registration card and that that fingerprint had been compared with a fingerprint from the card, which I also had showed him, and as a result of that comparison the fingerprint on the registration card had been positively identified as being one of his fingerprints. I asked him if he understood that concept and he said that he did.
Q Was this information that you gave to the defendant, was that correct information? Was that true?
A Yes, it was.
Q Go ahead.
A At that point I asked Mr. Pope if he could read and write English and he said that he could. I then advised him of his constitutional rights. I did so by providing him with a copy of a Rights Advice Form.
* * * * * *
Q Okay. That is a true and accurate representation of the copy that you handed to the defendant in this case?
A Yes, it is. After providing him with the original of this form, I instructed him to read the contents of the form to himself silently. I simultaneously read aloud from an identical form. I read the contents of the form verbatim. After reading the form, I asked him if he understood each of his Constitutional rights. He told me that he did.
* * * * * *
Q After the defendant indicated that he understood his rights, Detective, did you ask him if he was willing to speak with you?
A Yes, I did.
Q What did he say?
A His initial statement was he said, "What about No. 3?" directing our attention to the Rights Advice Form.
Q He was referring to the No. 3 sentence on the rights form?
A Yes. The No. 3.
Q Go ahead.
A His statement to us then was, "Do I get an attorney now?" And he followed that up by saying, "I don't have the money to pay for one." He continued speaking. He didn't stop after that point and wait for either of us to respond to his questions. He continued his sentence and his statement and told us, "I know what this is about." He said, "A guy came onto me and yes, I did stab him." He said, "I just kind of freaked out on the guy, but I only stabbed him once." When he finally did finish his statement, Detective Perry went back and responded to his question, his law of clarification on the rights form.
Detective Perry was Detective McDonald's partner. Immediately after Mr. Pope's initial incriminating statements about stabbing Mr. Kennedy, Detective Perry responded to Mr. Pope's question regarding whether he "[got] an attorney now." (emphasis added).
Q (By the Prosecutor) After he indicated he understood verbally and signed the form, did either of you ask him if he wished to make a statement to you?
A (By Detective Perry) Yes.
Q Which one of you asked that question?
A I believe McDonald did.
Q What did the defendant say at that point?
A He said--I am quoting here--"What about No. 3?" which I took as a reference to Point No. 3 on the Miranda form. They are divided into four points. He said, And then he kept talking and said,
Q After he made the statement, did you answer his questions concerning his rights?
A Yes.
Q What did you tell him about his rights at that point?
A I told him that he would be arraigned tomorrow, which would be the 21st at two o'clock in the afternoon, and that an attorney then would be routinely appointed for him. If he didn't have the money [to] pay for one, he needn't be concerned about it. This would be no expense.
Q The defendant's question was, "Do I get a lawyer now," is that right?
A Yes.
Q One of his questions?
A "Do I get an attorney now?" That's correct.
Q Did, did he say, "Can I have an attorney now?"
A No.
Q So that's when you told him an attorney would be appointed the next day at no expense to him; is that right?
A I told him that after he said everything that he said initially there including that he knew what it was about and what he had done.
(emphasis added).
After Detective Perry answered Mr. Pope's question, Detective Perry asked him if he would make a statement regarding the murder. Mr. Pope agreed to this request and then gave a detailed account of...
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