Sundstrom v. Powell
| Decision Date | 23 April 1992 |
| Citation | 960 F.2d 143 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Knute William SUNDSTROM, Petitioner, Appellant, v. Ronald L. POWELL, Commissioner, NH Department of Correction, et al., Respondents, Appellees. 91-1766. |
| Court | U.S. Court of Appeals — First Circuit |
Knute William Sundstrom on brief pro se.
John P. Arnold, Attorney General, and Ann M. Rice, Assistant Attorney General, Criminal Justice Bureau, on brief for appellees.
Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges.
Petitioner-appellant Knute Sundstrom filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of New Hampshire. Sundstrom alleged that the admission at his state court trial of his videotaped confession to the murder of his wife violated his federal constitutional rights under the fifth and fourteenth amendments. The district court denied the petition and granted Sundstrom's motion for a certificate of probable cause to appeal. We affirm the ruling of the district court.
The facts of this case were undisputed in the district court (although Sundstrom has disputed certain facts for the first time on appeal, as we shall discuss below). The facts, as summarized by the district court, are as follows.
On July 28, 1985, Sundstrom shot and killed his wife, Margaret Jane Sundstrom. Immediately after the shooting, he called "911" to report the death. A Manchester police officer, Joseph King, responded to the call.
Upon arriving at the Sundstrom home, Officer King was met at the front door and allowed to enter. Upon seeing the deceased, Officer King informed Sundstrom that he would have to ask him some questions. Officer King then told Sundstrom that he was going to read him his Miranda rights. According to Officer King, Sundstrom responded that he knew his rights and did not need them read to him, but Officer King proceeded to read Sundstrom his Miranda rights. Officer King then asked Sundstrom if, understanding his rights, he wanted to answer questions. Sundstrom responded that he did. Sundstrom proceeded to narrate the events leading up to the shooting, including an admission that he had killed his wife. While being driven to the Manchester police station, Sundstrom continued to volunteer, without being questioned, more details about the incident.
Upon arriving at the Manchester police station, Officer Stanley Dziura booked Sundstrom for second-degree murder. Sundstrom was informed that the booking procedure was being videotaped by the Manchester police. Sundstrom was once again read his Miranda rights. Upon informing Sundstrom of his right to an attorney, Officer Dziura asked Sundstrom, "Do you want a lawyer present, yes or no?" Sundstrom responded, "I don't know." Officer Dziura then said, "Well, you can think about it and anytime you want one, just let us know." Officer Dziura then continued with the standard booking procedure.
Officer Dziura then advised Sundstrom that he had a right to use a telephone and asked him to sign a form indicating he understood this right. The officer explained that Sundstrom did not have to sign the form if he did not want to. Sundstrom asked if he had the right to use the phone at any time, to which the officer replied,
Sundstrom was then asked, by an officer not on camera, if he had had anything to drink. Sundstrom admitted he had, and proceeded to detail the amounts. Officer Dziura then informed Sundstrom that they would like him to take a breathalyzer test and asked if he would consent to this. Sundstrom consented. The following conversation (as quoted by the district court) between Officer Dziura and Sundstrom then ensued:
Q. Before we start, do you want to make any phone calls or do you want to do it [the breath test] right off the bat and call later?
A. All the telephone numbers are in there [apparently indicating his wallet, which had just been taken from his pocket] but there's only ... I only have one lawyer.
Q. Who's that?
A. Gregory Michaels.
Q. Do you want to call him now or later?
A. Later.
Q. Get this out of ... all right.
A. There's no hurry.
Q. Okay.
[Another officer] Why don't you come with me, okay?
Sundstrom was then taken for an intoximeter test. There, he had a conversation with Sgt. Roland Boucher about the shooting and at one point said, After three unsuccessful attempts to take the breath test, Sundstrom was asked if he would consent to a blood test. Sundstrom agreed, and was brought to a hospital where a blood sample was taken.
Upon returning to the police station, Sgt. Boucher read Sundstrom his Miranda rights and asked Sundstrom to read the rights aloud with him. Sgt. Boucher read the rights from a standardized police form. Sundstrom was then asked if, understanding these rights, he was willing to answer questions on videotape. Sundstrom responded that he would be willing to do so.
Sundstrom was transported to a larger room with video equipment. At the beginning of the videotape, Sgt. Boucher again read Sundstrom his Miranda rights, asked Sundstrom if he understood his rights, and, understanding his rights, if he wanted to answer questions. Sundstrom again stated that he understood his rights and was willing to answer questions. Sundstrom then signed a written waiver of his rights. Sundstrom proceeded to give a detailed account of the events leading up to the shooting and the shooting itself.
Subsequently, Sundstrom was tried before a jury for second-degree murder in New Hampshire Superior Court. The videotape of Sundstrom's confession was entered into evidence at the trial. It is the admission of this videotape into evidence that Sundstrom now challenges. Following the jury trial, Sundstrom was convicted of second-degree murder and sentenced to imprisonment for a term of twenty years to life. Sundstrom appealed to the New Hampshire Supreme Court, raising, inter alia, his objections to the admission of the videotape. The New Hampshire Supreme Court affirmed his conviction. State v. Sundstrom, 131 N.H. 203, 552 A.2d 81 (1988).
In his § 2254 petition, Sundstrom alleged two alter-native grounds for habeas corpus relief. First, he argued that his response of "later" to Officer Dziura's question, "Do you want to call him [petitioner's attorney] now or later?", was an unequivocal, albeit limited, assertion of his right to an attorney. Sundstrom claims that this assertion should have precluded any further questioning by the police. Alternatively, Sundstrom claims that his response of "later" was equivocal or ambiguous, and therefore the police were required to limit further questioning to a clarification of Sundstrom's desire for counsel.
On appeal, Sundstrom filed a "designation of appellate brief" in which he requested that this court accept his § 2254 petition as his brief on appeal. This request was granted. In this "designation of appellate brief," however, Sundstrom also added four additional bases for habeas corpus relief: (1) that his physical and mental capability to sign a waiver of his constitutional rights was not established by contemporaneous, competent medical examination; (2) that the waiver he signed did not state that it was a waiver of constitutional rights, and that no one explained this to him; (3) that he could not "knowingly" sign a waiver of constitutional rights while under the influence of the physical and emotional stress caused by the crime and by the police's "relentless incommunicado interrogation;" and (4) that only part of the videotape was shown in court, whereas a showing of the complete videotape would have revealed the reason why he consented to the videotaped interview. Sundstrom did not raise any of these four points as a basis for habeas corpus relief in the district court. Accordingly, we will not consider them for the first time on appeal. Dziurgot v. Luther, 897 F.2d 1222, 1224 (1st Cir. 1990); United States v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir. 1986); Tarrant v. Ponte, 751 F.2d 459, 461 n.5 (1st Cir. 1985).
We now turn to the two issues Sundstrom did raise in his § 2254 petition. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court outlined the protections that police must accord to suspects during custodial interrogation:
Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.
Id. at 444-45. Once a defendant has invoked his right to an attorney, all questioning must cease unless the defendant himself initiates further contact. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The mere fact that the defendant later responds to police questioning after being re-advised of his rights is not sufficient to infer a knowing and intelligent waiver of the right to counsel. Id. at 484.
Sundstrom contends that he clearly and unequivocally invoked his right to counsel when, in response to the question, "Do you want to call him [Sundstrom's attorney] now or later?," Sundstrom answered, "Later." Sundstrom acknowledges that this request for counsel was limited in that Sundstrom did not request counsel immediately. Sundstrom insists, however, that this limited request for counsel was nevertheless unequivocal. Thus, according to Sundstrom, all questioning by police following this...
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State v. Grant-Chase
...which we review de novo. See State v. Sundstrom, 131 N.H. 203, 207, 552 A.2d 81, 83-84 (1988), denial of habeas aff'd by Sundstrom v. Powell, 960 F.2d 143 (1st Cir.1992); Fleet Bank--N.H. v. Chain Constr. Corp., 138 N.H. 136, 139, 635 A.2d 1348, 1350 (1993). Based on the testimony in the re......