Shriner v. Wainwright, 82-5469

• Citation: 715 F.2d 1452
• Decision Date: 09 September 1983
• Docket Number: No. 82-5469,82-5469
• Parties: Carl Elson SHRINER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1452

715 F.2d 1452

Carl Elson SHRINER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 82-5469.

United States Court of Appeals, Eleventh Circuit.

Sept. 9, 1983.

Rehearing and Rehearing En Banc Denied Nov. 4, 1983.

Daniel T. O'Connell, O'Connell & Hulslander, Gainesville, Fla., for petitioner-appellant.

Carolyn M. Snurkowski, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

Convicted of first degree murder and sentenced to death, Carl Elson Shriner appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C.A. § 2254. Shriner seeks relief from his conviction on the grounds that the trial court improperly admitted into evidence a confession and evidence of other crimes. He attacks his sentence on the grounds that the trial court excluded proffered testimony of a clergyman as to electrocutions, the so-called Florida Brown issue, and the improper consideration of a nonstatutory aggravating circumstance. We affirm.

The facts that led to Shriner's conviction and sentence are chronicled in some detail in Shriner v. State, 386 So.2d 525, 527-28 (Fla.1980). We briefly outline them here. At 6:15 a.m. on October 22, 1976, James Grills entered a Majik Market in Gainesville, Florida and discovered the dead body of Judith Carter, the store clerk. Carter had been shot five times, and the Majik Market apparently had been robbed. Police, summoned to the scene, learned from two women who were the last known customers to enter the store that a young male patron had remained in the Majik Market after they left at approximately 1:30 a.m. earlier that day. Ninety minutes after the women had left the store, a young man with a hand gun had robbed a motel in Gainesville. Based on information provided by the motel clerk and the two women, the police prepared two composite sketches and a written description of a single suspect.

The following afternoon an Alachua County deputy sheriff stopped a car in which the passenger, Shriner, resembled the suspect's description. After advising Shriner of his Miranda rights and briefly questioning him, the deputy took Shriner down to the sheriff's office, where questioning continued with Shriner's apparent permission following another set of Miranda warnings. Shriner and the couple in whose home he lived consented to a search of the premises where the police discovered a revolver. When law enforcement officers matched the gun to projectiles found in the Majik Market, they took Shriner to the Gainesville Police Department.

After Shriner signed a written waiver following further Miranda warnings, questioning began at 9:00 p.m. on October 23. Shriner initially confessed to only the motel robbery and gave inconsistent statements about his involvement in the murder. At 2:00 a.m., however, he finally confessed to the murder.

An Alachua County jury found Shriner guilty of first degree murder and unanimously recommended the death penalty. The trial judge followed the jury's recommendation. On direct appeal, the Florida Supreme Court upheld both the conviction and sentence, Shriner v. State, 386 So.2d 525 (Fla.1980), and the United States Supreme Court denied Shriner's petition for certiorari. Shriner v. State, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981).

Shriner then filed a petition for habeas corpus in federal district court. When the district court denied relief in an unpublished opinion, Shriner appealed to this Court.

GUILT PHASE

Admission of the Confession

Shriner challenges the admission at trial of his confession on three grounds. First, he argues the police lacked probable cause to take him into custody and, therefore, the confession is the fruit of an unlawful detention. Second, he claims the police did not "scrupulously honor" his right to cut off questioning, thus violating his Miranda rights. Third, he asserts that under the "totality of circumstances," including the allegedly inordinate length of questioning, his statements were coerced and involuntary.

As to the arrest, the police had probable cause to stop Shriner and take him into custody. The officer who stopped Shriner testified that he bore a "striking resemblance" to the suspect described in the police bulletin. The written description and composite sketches were based on information provided by three witnesses, all of whom were interviewed by the police. While Shriner claims there were significant discrepancies between the description and his appearance that day, the state judge credited the officer's testimony to the contrary. Findings of fact are entitled to a presumption of correctness in a federal habeas corpus proceeding. 28 U.S.C.A. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The police encountered Shriner one day after the two crimes in the same county. With such a temporal and geographic proximity, a description by witnesses of a suspect may provide a sufficient basis for arresting an individual who closely resembles the description. See, e.g., Chambers v. Maroney, 399 U.S. 42, 46-47, 90 S.Ct. 1975, 1978-1979, 26 L.Ed.2d 419 (1970) (police had probable cause to arrest suspects whose clothing and car matched description).

Shriner's reliance on Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) is misplaced. In Dunaway, the Court held that police cannot take a suspect into custody for questioning in the absence of probable cause. Id. at 216, 99 S.Ct. at 2258. Here, the police had probable cause.

Shriner's Miranda rights were not violated. From the time of his arrest, 4:00 p.m. on October 23, until his confession to murder, 2:00 a.m. the following morning, Shriner received three full sets of Miranda warnings, with the last occurring right before questioning began at 9:00 p.m. Shriner signed a written waiver of his rights at that time. He testified at the suppression Although Shriner argues that, prior to his confession, he requested all questioning to cease, the state attorney who asked the questions testified at both the suppression hearing and at trial that he thought Shriner wanted questioning to terminate only in relation to the robbery. Significantly, Shriner offered no rebuttal testimony. Crediting the testimony of the government attorney, the state courts found that Shriner merely wanted to limit the subject matter, not end all questioning. Shriner v. State, 386 So.2d at 532. The record "fairly support[s]" this factual determination. 28 U.S.C.A. § 2254(d)(8).

                hearing that, as a former convict, he understood the meaning of Miranda warnings.   While Shriner claims to have requested an attorney prior to the 9:00 p.m. commencement of the questioning session, a law enforcement officer to whom Shriner allegedly made the request denied Shriner's assertion.   At the hearing, Shriner could not remember whether he had requested an attorney during the questioning session, and the state attorney who conducted much of the questioning testified categorically that Shriner had not done so
                

Given that fact, the state attorney could continue to ask Shriner questions about the murder without providing further Miranda warnings. In United States v. Vasquez, 476 F.2d 730 (5th Cir.), cert. denied, 414 U.S. 836, 94 S.Ct. 181, 38 L.Ed.2d 72 (1973), the former Fifth Circuit denied the suppression of inculpatory statements made to government agents where the defendant, suspected of possessing an unregistered firearm, told police he did not want to discuss a shooting but agreed to answer questions about the rifle itself.

When a person in custody has responded to proper police interrogation by voicing a general willingness to talk, subject only to a limited desire for silence, and his wishes not to discuss a particular subject-matter area are respected, nothing rooted in law or constitutional policy makes it improper to question him as to any unlimited subjects.

476 F.2d at 732-33 (footnote omitted). The Supreme Court has likewise indicated that the police do not in all circumstances have to cease all questioning once a suspect in any way exercises his Miranda rights.

[Nothing] in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.

Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 325-26, 46 L.Ed.2d 313 (1975) (footnote omitted). The test is whether the state "scrupulously honored" defendant's right to cut off questioning. Id. at 104, 96 S.Ct. at 326 (quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966)). Here, the state complied fully with Shriner's only request: to terminate questioning as to the robbery. In short, the government "scrupulously honored" the only right Shriner exercised.

Shriner's inculpatory statements were not coerced or involuntary. Besides reasserting arguments that his requests for counsel and to end questioning were not heeded, Shriner offers little in support of his contention. Consistent with the testimony of the law enforcement officials, he does not claim on appeal that anyone threatened him or promised him anything in exchange for a confession. He merely notes that intensive questioning lasted for around five hours, during which period he remained handcuffed in a small room except for trips to use the lavatory, and that his girl friend was present in an adjacent room in an emotionally and physically distraught state. Shriner can hardly attribute his confession to a concern for his girl friend since he initially told the police she committed the murder. Neither has he established that the physical surroundings and length of questioning without new Miranda...