Sulie v. Duckworth

• Decision Date: 21 October 1982
• Docket Number: No. 81-2589,81-2589
• Citation: 689 F.2d 128
• Parties: Eugene Keith SULIE, Petitioner-Appellant, v. Jack DUCKWORTH, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 128

689 F.2d 128

Eugene Keith SULIE, Petitioner-Appellant, v. Jack DUCKWORTH, et al., Respondents-Appellees.

No. 81-2589.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 1982.

Decided Sept. 23, 1982.

Rehearing En Banc Denied Oct. 21, 1982.

Allen Kamp, The John Marshall Law School, Chicago, Ill., for petitioner-appellant.

Counsel for respondent waived oral argument.

Before CUDAHY, ESCHBACH and POSNER, Circuit Judges.

POSNER, Circuit Judge.

Eugene Sulie was convicted in an Indiana state court of first-degree murder and sentenced to life imprisonment. After exhausting his state remedies, see Sulie v. State, 269 Ind. 204, 379 N.E.2d 455 (1978), he filed a petition for federal habeas corpus. It was denied and he has appealed. The only question presented to us is whether Sulie was deprived of his liberty without due process of law because the officer who questioned him while he was in custody after his arrest was allowed to testify that Sulie asked to see an attorney. This evidence was used to show that Sulie was sane when he killed his victim.

The question whether it is a violation of a criminal defendant's constitutional rights to testify that he asked to speak to a lawyer when he was interrogated arose in Jacks v. Duckworth, 651 F.2d 480, 482-83 (7th Cir. 1981), and this court held that it was not. But the court's opinion lays heavy emphasis on the harmlessness of the alleged error in the circumstances of that case, and we are less certain that if there was error here it was harmless. We shall therefore go beyond a simple citation of Jacks.

Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966), held that "the right to have counsel present at (a custodial) interrogation is indispensable to the protection of the Fifth Amendment privilege" to remain silent during such an interrogation. Sulie argues that the right to have counsel present during an interrogation would be inhibited if the person being interrogated knew that an attempt to exercise that right could be used in his criminal trial as evidence of sanity. Evidence of his silence would not be admissible against him in his criminal trial. See Miranda, supra, 384 U.S. at 468 n. 37, 86 S.Ct. at 1624 n. 37; Doyle v. Ohio, 426 U.S 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). No more-Sulie argues-should his request for a lawyer be admissible.

But we do not find the analogy compelling. Because jurors are quite likely to infer guilt from a defendant's refusal to give a statement to the police, the admissibility of such a refusal in evidence against the defendant would be a substantial deterrent to the exercise of his constitutional right to remain silent during a custodial interrogation. The deterrent effect in this case is more tenuous. The ultimate constitutional right involved in this case as in Miranda is the right to remain silent; it is not the right to have counsel. That right, which derives from the Sixth Amendment and is applied to the states through the due process clause of the Fourteenth Amendment, see Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 795-96, 9 L.Ed.2d 799 (1963), does not attach until a criminal prosecution has been commenced, as by the filing of a formal charge. Moore v. Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-64, 54 L.Ed.2d 424 (1977). Mere interrogation of a suspect before the filing of any charge, as in this case, does not bring the right into play. Jacks v. Duckworth, supra, 651 F.2d at 483. It is true that some cases decided since Moore hold, but without citing Moore or elaborating the basis of their holding, that the Sixth Amendment right to counsel attaches prior to the filing of any charge. See, e.g., United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980). But these decisions cannot be regarded as authoritative, in light of Moore; and they are certainly not the law of this circuit, in light of Jacks.

The right to have counsel present at a custodial interrogation is, therefore, as the passage quoted earlier from Miranda makes clear, merely ancillary or supplementary to the right to remain silent, which derives from the Fifth Amendment's self-incrimination clause. Like the exclusionary rule in search and seizure cases, the Miranda right to counsel is not directly conferred by the Constitution but rather is a judge-made enforcement device for assuring that an express constitutional right, the Fifth Amendment right against compulsory self-incrimination, is not infringed.

In deciding whether to apply this enforcement device in the present case, we have to consider first how much the exercise of the right to remain silent would be deterred if a suspect knew that a request for a lawyer could be used as evidence of his sanity. Not much, in our opinion. Few criminal defendants raise the defense of insanity. Fewer still, we imagine, are already planning their defense when first arrested, though Sulie may be one of them, since the victim's husband testified that Sulie had told him that it was easy to beat a murder rap with an insanity plea if you knew how to fool the doctors. The sophisticated suspect whose foresight makes him hesitate to ask for a lawyer because he is afraid that his request will undermine his insanity defense at trial does not need counsel present to protect his constitutional right to remain silent; such an advance planner will not blurt out damaging admissions involuntarily, merely because counsel is not present.

Against the slight inhibiting effect on the constitutional right of silence of permitting testimony that a criminal defendant requested counsel at his interrogation, we must weigh the value to the state of being able to show that, when interrogated soon after the crime, the defendant who now claims he was insane when he committed the crime was sufficiently lucid to ask for a lawyer. Under Indiana law at the time of Sulie's trial the prosecution had the burden of proving sanity beyond a reasonable doubt once the defendant raised the defense of insanity, Riggs v. State, 264 Ind. 263, 265, 342 N.E.2d 838, 841 (1976), and psychiatry is not such an exact science that it can be counted on to defeat every effort to feign insanity. The difficulty of reliably determining by the methods of litigation whether a criminal defendant is insane lies behind the principle that "the trial judge should be free in his admission of all possibly relevant evidence" on the issue of insanity. United States v. Hartfield, 513 F.2d 254, 260 (9th Cir. 1975). Although the principle is usually invoked by defendants, to justify the admission of evidence of insanity, we cannot think of any good reason that it should not be available to the state to justify the admission of evidence of sanity, especially where the state has the burden of proving sanity beyond a reasonable doubt-a burden some might think virtually impossible to carry in any case of criminal, which implies aberrant, behavior. Evidence of a defendant's lucidity at or near the time of the crime may therefore be important in preventing erroneous acquittals on grounds of insanity, a legitimate and important social goal. That preventive effect must be weighed against the burden, which we have said is indirect, on the exercise of the Fifth Amendment right against compulsory self-incrimination.

All this is not to suggest that evidence that a criminal defendant asked for a lawyer when he was first questioned is admissible generally. Many decisions have held such evidence inadmissible. See, e.g., Fagundes v. United States, 340 F.2d 673, 677 (1st Cir. 1965); United States v. Liddy, 509 F.2d 428, 443-45 (D.C. Cir. 1974); United States v. Williams, 556 F.2d 65, 67 (D.C. Cir. 1977); United States v. McDonald, supra, 620 F.2d at 564; People v. Schindler, 114 Cal.App.3d 178, 186-87, 170 Cal.Rptr. 461, 465-66 (1980). We have no quarrel with any of these decisions except the last. Schindler alone involved the use of such evidence to prove sanity. Where evidence that the defendant asked for a lawyer is used to prove, not sanity, but, for example, guilt, its probative value is slight (it is not true that only a guilty person would want to have a lawyer present when he was being questioned by the police); but here it was great. Even so, we decline to adopt a rule of blanket admissibility. If the interrogation takes place months after the crime, an inference of sanity at the time of the crime, drawn from a request for counsel at the time of the interrogation, might well be too tenuous to warrant allowing the request into evidence, given that its admission could have some-though probably only slight-deterrent effect on the exercise of the defendant's right under the Fifth Amendment to remain silent during a custodial interrogation. But in this case the interrogation came only 30 hours after the crime.

As so often in the law, it is all a matter of balancing competing values in particular circumstances. Here the balance sufficiently inclines in favor of admissibility to persuade us that the defendant's constitutional rights were not infringed. The judgment denying the petition for habeas corpus is therefore

Affirmed.

CUDAHY, Circuit Judge, dissenting.

If we were writing on a clean slate, I could find some common sense and plausibility in the majority's balancing analysis. I too see little to deter a request for a lawyer in the threat of subsequent use of the request to prove sanity. Perhaps, as the majority contends, the state has particular need for testimony about a defendant's request for a lawyer to show his lucidity. But there are also those who would argue that such a request is entirely consistent with lunacy. In any event, asking for a lawyer is not necessarily proof either of objective guilt or of sound mental condition.

Be that as it may, an analysis based on balancing deterrence of the constitutional right to counsel against the state's interest in testimony about seeking a lawyer is an approach...