Robinson v. Borg

• Decision Date: 11 December 1990
• Docket Number: No. 89-55126,89-55126
• Citation: 918 F.2d 1387
• Parties: Ricardo H. ROBINSON, Petitioner-Appellant, v. Robert Glen BORG, Warden, et al., Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1387

918 F.2d 1387

Ricardo H. ROBINSON, Petitioner-Appellant, v. Robert Glen BORG, Warden, et al., Respondent-Appellee.

No. 89-55126.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 1, 1989.

Decided Oct. 30, 1990.

As Amended Dec. 11, 1990.

Shauna Weeks (law student), William J. Genego, Charles D. Weisselberg, Post Conviction Justice Project, University of Southern California Law Center, Los Angeles, Cal., for petitioner-appellant.

Donald E. De Nicola, Supervising Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before NORRIS, REINHARDT and TROTT, Circuit Judges.

REINHARDT, Circuit Judge:

Appellant Ricardo H. Robinson appeals the district court's denial of his petition for writ of habeas corpus. He maintains that the state trial court improperly admitted incriminating statements he made to police during custodial interrogation, in violation of his rights under the fifth and fourteenth amendments. Robinson asserts two independent grounds for relief. First, he claims that he did not make a knowing and intelligent waiver of his right to counsel during interrogation because he did not understand that he had a right to appointed counsel. Second, he contends that, prior to making the inculpatory statements admitted at trial, he unequivocally invoked his right to counsel. We agree with Robinson that his statement "I have to get me a good lawyer, man. Can I make a phone call?" constituted an unequivocal request for counsel, requiring that the interrogation cease. Accordingly, we reverse the district court's denial of Robinson's petition for habeas corpus relief. ¹

I. FACTS

Following a jury trial, Ricardo Robinson was convicted of first-degree (felony) murder, mayhem, assault with a caustic substance, and conspiracy to commit mayhem. Part of the evidence introduced against Robinson at trial consisted of incriminating statements he made to police during custodial interrogation. Robinson sought to suppress these statements prior to trial, arguing that he had not knowingly and intelligently waived his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the police did not honor his subsequent request for counsel. Following a hearing, at which a tape and transcript of the interrogation were introduced, the state trial court denied Robinson's motion to suppress. The statements were then admitted into evidence at his trial.

The suppression hearing reveals that the police advised Robinson of his Miranda rights before beginning questioning. The parties agree that the Miranda warnings given were correct on their face. When asked if he wished to give up his right to remain silent, Robinson stated, "No. I mean ... No, I'll speak now and answer questions without an attorney." In response to a series of questions designed to clarify whether he wished to give up his right to an attorney at questioning, Robinson replied, "If I say yes, I'd want an attorney then I'd have to get one here, is that right? (Unintelligible) Yeah, I give it up." Police then proceeded to interrogate Robinson for approximately four and one-half hours.

At one point during the interrogation, Robinson said, "Maybe I shoulda got an attorney." After further questioning, he asked, "Man ... can I make a phone call?" The detective questioning Robinson ignored this request, stating, "Hey, I was going to play a ... portion of a tape for you in a second; I want you to listen to it, O.K.?" After more questioning, Robinson again asked to make a phone call, this time, however, making it clear that he wished to obtain counsel. He stated, "I have to get me a good lawyer, man. Can I make a phone call?" ² One of the interrogators responded by saying "sure," and then asking Robinson if he wished to call another suspect (and future co-defendant) in the case. When Robinson immediately replied "No" the interrogator resumed questioning him. Questioning continued until Robinson asked to call his mother, at which time the interrogators agreed to let him make that call. When Robinson returned from telephoning, the detectives resumed the interrogation. They then questioned him at great length concerning his knowledge of and participation in the crime under investigation. It was during this part of the interrogation that Robinson made the incriminating statements that were the subject of his pretrial motion to suppress.

Following his conviction, Robinson appealed to the California Court of Appeals. The court of appeals affirmed, ruling that the trial court's denial of the motion to suppress was amply supported by the record. The California Supreme Court denied Robinson's petition for review.

After two unsuccessful state habeas petitions, Robinson filed his federal habeas petition. The district court, adopting the Magistrate's Report and Recommendation without modification, denied the petition. The court concluded that Robinson had knowingly and intelligently waived his right to counsel prior to the time the questioning began. The court also found that Robinson did not make an unequivocal request for counsel during the interrogation. Lastly, the court noted that, even if Robinson's statement were interpreted as an equivocal request for counsel, this court's decision in Fouche should not be applied retroactively to this case. ³

II. STANDARD OF REVIEW

The state court's determination of what is said during an interrogation constitutes a factual finding entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d). See McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied sub nom. McKenzie v. McCormick, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). Whether the suspect's words constitute a request for counsel is a legal determination which we review de novo. Smith v. Endell, 860 F.2d 1528, 1532 n. 3 (9th Cir.1988) ("[T]he state court's characterization of Smith's words is hardly a finding of fact.... The constitutional effect of the dialogue is a legal question subject to our independent review.").

III. DISCUSSION

Under Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), if at any point during an interrogation a suspect invokes his right to counsel, all questioning must cease and may not resume in the absence of counsel unless the suspect himself initiates the further discussions. See also Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488 (1984) (per curiam) ("[I]f the accused invoked his right to counsel, courts may admit his responses only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked."). Once a suspect has requested the presence of an attorney, "a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Edwards, 451 U.S. at 484, 101 S.Ct. at 1885. The Supreme Court has stated that Edwards establishes a " 'rigid' prophylactic rule." Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. at 492-93 (citing Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568-69, 61 L.Ed.2d 197 (1979)).

At issue here is whether Robinson invoked his right to counsel when he said, "I have to get me a good lawyer, man. Can I make a phone call?" Requests for counsel are to be given broad effect even when less than all-inclusive. Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987). "Doubts must be resolved in favor of protecting the constitutional claim." Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986); see also Smith v. Endell, 860 F.2d 1528, 1531 n. 2 (9th Cir.1988); Grooms v. Keeney, 826 F.2d 883, 886 (9th Cir.1987); Owen v. Alabama, 849 F.2d 536, 538-39 (11th Cir.1988); United States v. Gotay, 844 F.2d 971 (2nd Cir.1988). Moreover, a suspect's "postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself." Smith v. Illinois, 469 U.S. at 100, 105 S.Ct. at 495 (emphasis in original). Nevertheless, the Supreme Court has recognized that "[o]n occasion, an accused's asserted request for counsel may be ambiguous or equivocal." Id. at 95, 105 S.Ct. at 493.

Robinson argues that his statement that he had to get a good lawyer followed immediately by his request to make a phone call constituted an unambiguous and unequivocal invocation of his fifth amendment right to counsel. We agree. While the word "attorney" has no talismanic qualities, see United States v. Jardina, 747 F.2d 945, 949 (5th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 833 (1985), Robinson made clear his perceived need for a lawyer and his desire to obtain the assistance of counsel. No more is required. Upon hearing Robinson's request it was incumbent upon the police to cease the interrogation, and their failure to do so renders inadmissible any statements he made in response to their continued questioning. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85.

The State contends that Robinson's statement was not a request for counsel because he was not attempting to invoke a present right to counsel. Rather, according to the State, Robinson's remark reflected his recognition that he faced a difficult criminal trial ahead. We do not believe that as a matter of either logic or semantics Robinson's statement is reasonably susceptible to such an interpretation. Nor do our cases permit such a construction.

In analyzing a defendant's request for counsel, we take a defendant's words "understood as ordinary people would understand them." Connecticut v. Barrett, 479 U.S. at 529, 107 S.Ct. at 832. Robinson's statement "I have to get me a good lawyer, man. Can I make a phone call?", made in the middle...