Smith v. Endell
| Decision Date | 14 November 1988 |
| Docket Number | No. 86-4357,86-4357 |
| Parties | Michael T. SMITH, Petitioner-Appellant, v. Roger V. ENDELL, Commissioner of the Department of Corrections, State of Alaska, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peggy A. Roston, Bankston, McCollum & Fossey, Anchorage, Alaska, for petitioner-appellant.
W.H. Hawley, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, Alaska, for respondent-appellee.
Appeal from the United States District Court for the District of Alaska.
Before BROWNING, NORRIS and O'SCANNLAIN, Circuit Judges.
Smith was convicted in the Superior Court of the State of Alaska for the murder of Ron and Darcelle Cole. He appealed to the Alaska Court of Appeals asserting, among other claims, that the Superior Court failed, in violation of rules established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to suppress a confession obtained in the absence of counsel through in-custody, police-initiated interrogation after Smith had requested an attorney. The Alaska Court of Appeals affirmed; the Supreme Court of Alaska denied review. The United States District Court for the District of Alaska dismissed Smith's petition for habeas corpus. This appeal followed.
The governing law is clear. Under Miranda a person in custody must be informed prior to interrogation that he has a right to remain silent and to have a lawyer present. Miranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630. If he requests counsel, interrogation must cease until an attorney is available. Id. at 474, 86 S.Ct. at 1628. Not only must all questioning stop when a suspect expresses his desire for counsel, but questioning can be resumed without a lawyer only if the suspect himself initiates further communication--waiver cannot be found from a suspect's continued response to questions, even if he is again advised of his rights. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981).
Requests for counsel are to be given broad effect even when less than all-inclusive. Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987). A suspect's responses to further questioning cannot be used to cast doubt upon the adequacy of his initial request. Smith v. Illinois, 469 U.S. 91, 97-99, 105 S.Ct. 490, 493-94, 83 L.Ed.2d 488 (1984) (per curiam). When the initial request is ambiguous or equivocal, all questioning must cease, except inquiry strictly limited to clarifying the request. United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985), after remand, 833 F.2d 1284, 1287 (1987); United States v. Nordling, 804 F.2d 1466, 1470 (9th Cir.1986).
The facts are undisputed. Smith was arrested for possession of cocaine and questioned by state troopers. The troopers advised Smith of his Miranda rights. Smith waived them. He discussed the drug charges with the troopers for approximately an hour, admitting he had been distributing cocaine, Ron Cole was his supplier, he owed Cole $15,000, and Cole maintained a list of persons who owed him for cocaine, one of whom was Smith. The trooper asked Smith if he shot Cole. Smith denied it. The trooper pressed the point. Smith's initial request for counsel followed:
Smith: Can I talk to a lawyer? At this point, I think maybe you're looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?
Trooper: Well, it ... it wouldn't be fair to you to say that we weren't Mike.
2nd Trooper: Yeah.
Smith: Because if you are, it's ... it's a serious charge and I think I should have counsel, if that's where ... what you're ... where you're coming from, just tell me if you are.
The troopers reminded Smith he himself had pointed out that anyone in Cole's list of debtors who owed him money for drugs "would certainly have reason enough to kill him," to which Smith responded, The troopers then said:
[L]et's face it, you're a person who dealt with Ron Cole, and you're a person who owed him a lot of money.
The troopers added that if Smith still did not regard himself as a suspect:
[W]e have no choice but to say well, he's ... he's told us everything about what the suspect should look like, and we're sitting here saying, well you're ... you're right, we think that's probably what the suspect looks like too.
Smith responded, "Yeah," after which the trooper again repeated the evidence against Smith:
Okay. And if you for one minute you think that we don't think the suspect is someone who is friends with him, someone who dealt with dope and someone who was in debt to him, then absolutely, you're correct.
Smith reacted by pointing out that others were equally suspect:
I know, but I'm saying there's probably a ... at least a dozen people like me that have known him for years and in the same position. They owe him money. They're friends [ ] in the same position as I am.
The troopers responded by reminding Smith he had been advised of his right to counsel and if he wanted counsel he should not hesitate to get one, but if "[y]ou want to talk to us about Ron Cole's dealings, you want to talk about the murder and suspects, anybody, will talk with you."
Smith then made his second statement regarding representation by counsel, saying:
A trooper responded with still another recitation of the circumstances connecting Smith with the murder:
Alright ... Well, you ... you heard what ... you heard what I said. I ... you yourself say anybody that would be in that notebook could be ... could be logical suspect, and you certainly agree, at least with our line of reasoning, in picturing the kind of person we have as a suspect, an associate, somebody that dealt dope and somebody that's in [the] notebook and in debt up to his ass.
This part of the interview concluded:
At this point, the troopers shut off the tape recorder for approximately twenty-one minutes to "get some coffee." While the tape was off, Smith confessed to the murders. The troopers then turned the recorder back on, and Smith repeated his confession.
The Superior Court denied Smith's motion to suppress, holding that in his two references to a lawyer Smith was merely The Alaska Court of Appeals affirmed, stating Smith's first reference to having an attorney "simply indicated that Smith was aware that he had a right to counsel;" and his second reference "indicat[ed] he was trying to decide whether to contact an attorney, but continued with the interviews."
The United States Magistrate recommended denial of Smith's petition for habeas corpus. The magistrate recognized that Smith v. Illinois barred use of Smith's second reference to counsel to cast doubt upon his initial request, and said it was not clear whether in evaluating Smith's request for counsel the Alaska Courts had relied upon both statements. The magistrate characterized Smith's first statement as a conditional request for counsel. "A statement of conditional intent," the magistrate said, "is an ambiguous statement, at least in the context of this dialogue," thus bringing into play the doctrine that only questions designed to clarify whether the subject desires an attorney were permissible. "Where a suspect's desires are expressed in an equivocal fashion," the magistrate continued, "it is permissible for the questioning officer to make further inquiry to clarify the suspect's wishes."
The magistrate characterized the troopers' response to Smith's initial request as consisting of "statements as to the focus of their investigation and then to Smith's right to counsel." The magistrate concluded,
The magistrate recognized that the investigators and "did not exceed the permissible boundary of the 'equivocalness exception.' " In a Supplemental Report, the magistrate reiterated that the investigators "did not act improperly by addressing the ambiguity of whether or not Smith was a suspect as well as reminding Smith of the previous advisement of rights that he received from the Investigator since this questioning was directed toward clarifying Smith's desire for counsel."
The district court stated it had reviewed the magistrate's report, was "satisfied that Petitioner's constitutional right to counsel was not effectively invoked, and therefore the questioning which preceded and led to his confession was permissible." The court adopted the magistrate's recommendation and dismissed the petition.
We believe the magistrate's analysis underlying the district court's order was flawed in two critical respects. First, Smith's initial request for counsel was not equivocal or ambiguous. It was conditional, but the investigators knew the condition to be satisfied. Communication with Smith with respect to the matter under investigation therefore should have ceased until an attorney was present. Second, even if Smith's initial...
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