Rose v. Engle

• Decision Date: 26 January 1984
• Docket Number: No. 83-3051,83-3051
• Citation: 722 F.2d 1277
• Parties: Charles E. ROSE, Petitioner-Appellee, v. Ted ENGLE, Superintendent, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1277

722 F.2d 1277

Charles E. ROSE, Petitioner-Appellee, v. Ted ENGLE, Superintendent, Respondent-Appellant.

No. 83-3051.

United States Court of Appeals, Sixth Circuit.

Argued June 17, 1983.

Decided Nov. 28, 1983.

Rehearing and Rehearing En Banc Denied Jan. 26, 1984.

Karen A. Kolmacic, Ohio Atty. Gen., argued, Elizabeth Dean, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant.

John A. Crist, Eric Barr, argued, Crist, Wall & Ellis, Middletown, Ohio, for petitioner-appellee.

Before MARTIN and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

PER CURIAM.

The principal question presented in this appeal is whether the Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), should be applied retroactively. ¹ Because we find that the district court correctly held that Edwards should be applied retroactively to this case, we affirm the district court's judgment granting Charles E. Rose's petition for writ of habeas corpus.

I.

On the morning of December 2, 1978, Rose quarreled with his wife, Jewell. The Roses had a history of marital disputes. At approximately 4:00 p.m. that afternoon, Rose purchased a .22 revolver and fifty rounds of ammunition. Rose told the sales clerk, "You must think I'm going to shoot someone." Approximately twenty minutes later, a neighbor of the Roses called the Franklin, Ohio police department and reported a shooting incident at the Roses' residence. When police arrived, they found Jewell's body lying in the doorway of the residence. At about the same time, neighbors saw Rose carrying a gun in the alley next to the residence. Rose went to a neighbor's house and made several remarks. One witness testified that Rose said, "Sandy, go check on her. If she's hurt bad, I have a murder rap." Another witness testified that Rose said, "Sandy, you got to hide me. I just shot my wife" and that if Jewell was dead, he would take a murder rap. Two other witnesses testified that Rose said he accidentally shot his wife. Rose was arrested at the neighbor's house where he told the arresting officer that he had shot his wife.

At the police station, Rose, after being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requested an attorney and stated that he did not wish to discuss the incident. The police did not then interrogate Rose. Less than two hours later, Franklin Police Chief George Hamilton, after again advising Rose of his Miranda rights, asked him about the shooting. Rose gave two conflicting stories. First, Rose claimed that Jewell had shot herself. Then, in response to Chief Hamilton's statement that two shots had been fired, Rose claimed that he had argued with Jewell and the gun fired during a struggle over the gun. Rose also said that he would tell the truth if allowed to go home.

Rose was indicted on the charge of aggravated murder, Ohio Rev.Code Sec. 2903.01(A), in January, 1979. Rose was tried before a jury in May, 1979. The principal issue at trial was whether Rose intentionally or accidentally shot and killed Jewell. At trial, Rose moved to suppress evidence concerning his statements to Chief Hamilton. The trial court denied the motion. Rose was convicted of the lesser included offense of murder, Ohio Rev.Code Sec. 2903.02(A). Rose was sentenced to imprisonment for a term of fifteen years to life.

Rose appealed his conviction on the ground, among others, that his statements to Chief Hamilton were elicited in violation of his Fifth Amendment rights outlined in Miranda. In an opinion relying on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the state court of appeals rejected Rose's argument and affirmed his conviction. State v. Rose, No. 382 (Warren Cty. Ct.App. Aug. 27, 1980). Rose then filed an appeal to the Supreme Court of Ohio. On March 18, 1981, the Supreme Court of Ohio, sua sponte, dismissed Rose's appeal. State v. Rose, No. 80-1488 (Ohio March 18, 1981). On May 18, 1981, the United States Supreme Court announced its decision in Edwards which held "that once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided unless the suspect himself initiates dialogue with the authorities." Wyrick v. Fields, --- U.S. ----, 103 S.Ct. 394, 395, 74 L.Ed.2d 214 (1982) (per curiam) (construing Edwards ).

On December 10, 1981, Rose filed the instant petition for writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254. In an opinion and order dated December 29, 1982, the district court granted the petition based on its conclusions that Rose's statements to Hamilton were inadmissible under Edwards and Miranda, that Edwards is to be applied retroactively to this case, and that admission of the statements was not harmless error. The state has appealed on the grounds that Edwards should not be applied retroactively to this case and that the admission of evidence of Rose's statements to Chief Hamilton was harmless error. The state has not disputed the applicability of Edwards to this case.

II.

The state presents alternative arguments for the nonretroactive application of Edwards. The state argues that because Edwards effected a "clear break" from settled precedent by creating an unanticipated per se rule with respect to the waiver of the Fifth Amendment right to counsel during custodial interrogation, under the principles enunciated in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), Edwards should be applied prospectively only. The state alternatively argues that if Edwards is not a "clear break" with settled precedent, Johnson directs that Edwards be applied retroactively to cases still pending when Edwards was decided. Because the state contends that Rose's case was final when Edwards was announced, it concludes that Edwards does not apply retroactively to the case.

Rose's argument in response is that Johnson is inapplicable to Edwards because Johnson, by its very terms, is limited to decisions construing the Fourth Amendment. Rose continues that even under the principles outlined in Johnson, Edwards should be applied retroactively because Edwards does nothing more than reaffirm Miranda's holding that "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 474, 86 S.Ct. at 1627.

The threshold issue to be resolved is whether the principles enunciated in Johnson to determine the retroactivity of decisions construing the Fourth Amendment are to be applied to determine the retroactivity of Edwards. In Johnson, the Supreme Court held that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), in which the Court held that the Fourth Amendment prohibits a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest, is to be applied retroactively to all convictions not final at the time it was decided. In reaching this holding, the Supreme Court stated that three principles concerning retroactivity had been established: (1) when a Supreme Court decision merely applies settled precedent to new and different factual situations, the decision is applied retroactively; (2) when a Supreme Court decision establishes a rule of criminal procedure that is a "clear break with the past", the decision is not retroactive; and (3) when a Supreme Court decision rules that a trial court lacked the authority to convict or punish a criminal defendant, the decision is retroactive. The Court held that none of these principles applied because Payton besides not affecting the trial court's authority was neither a mere application of settled precedent to new situations nor a "clear break with the past". The Court then adopted a fourth principle that had been proposed by Justice Harlan, Desist v. United States, 394 U.S. 244, 258, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969) (Harlan, J. dissenting), viz., that where the Court's decision is not controlled by one of the preceding three principles, the holding of the Court will be applied "to all those cases which are still subject to direct review by this Court at the time the 'new' decision is handed down." ²

We hold that the principles enunciated in Johnson may be used to determine the retroactivity of Edwards. Although in announcing its decision in Johnson the Court stated that "we express no view on the retroactive application of decisions construing any constitutional provision other than the Fourth Amendment", 102 S.Ct. at 2594 (footnote omitted), in reaching that decision the Court relied on a survey of its decisions determining the retroactive application of decisions construing constitutional provisions other than the Fourth Amendment. E.g., id. at 2587 (citing Gosa v. Mayden, 413 U.S. 665, 672-73, 93 S.Ct. 2926, 2932, 37 L.Ed.2d 873 (1973) (plurality opinion) (no retroactive application of Fifth and Sixth Amendments ruling in O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969)); id. (citing Michigan v. Payne, 412 U.S. 47, 55-57, 93 S.Ct. 1966, 1970-1971, 36 L.Ed.2d 736 (1973) (no retroactive application of Fifth Amendment ruling in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969))); id. at 2588 (citing Ashe v. Swenson, 397 U.S. 436, 437 n. 1, 90 S.Ct. 1189, 1191 n. 1, 25 L.Ed.2d 469 (1970) (retroactive application of Fifth Amendment ruling in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 232 L.Ed.2d 707 (1969))). Moreover, the principles for determining the retroactivity of decisions construing the Fourth Amendment have regularly been applied in determining the retroactivity of decisions construing the Fifth Amendment. E.g., Tehan v. United States ex rel. Schott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (applying the retroactivity analysis of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). Finally, we can discern no principled basis...