U.S. v. Comosona

• Decision Date: 09 June 1988
• Docket Number: No. 87-1710,87-1710
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard COMOSONA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1110

848 F.2d 1110

UNITED STATES of America, Plaintiff-Appellee, v. Bernard COMOSONA, Jr., Defendant-Appellant.

No. 87-1710.

United States Court of Appeals, Tenth Circuit.

June 9, 1988.

Thomas J. Clear, III of Clear & Clear, P.A., Albuquerque, N.M., for defendant-appellant.

Stephen R. Kotz, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Robert J. Gorence, Asst. U.S. Atty., on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and SETH and McKAY, Circuit Judges.

SETH, Circuit Judge.

Bernard Comosona, Jr. takes this appeal from a judgment of conviction which was entered after a jury found him guilty of voluntary manslaughter in violation of 18 U.S.C. Secs. 1153 and 1111. Comosona has raised several points on appeal, but his argument centers on the trial court's denial of his pretrial motions to suppress statements he made when interrogated and motions to dismiss the indictment because of preindictment and prearraignment delay.

Comosona was charged by indictment with the murder of his grandfather, Ray Paylusi, who died as a result of a stab wound by a kitchen knife. The fatal wound was inflicted shortly after Mr. Paylusi and his wife returned to their home on the Zuni Indian Reservation. When they arrived at their house, they were met by Comosona and by Comosona's sister, Carol Martinez. Comosona and Martinez had been fighting during their grandparents' absence, and Martinez told Mr. Paylusi of the altercation whereupon he upbraided Comosona for fighting. Comosona walked into the house. Mr. Paylusi followed Comosona and while Mr. Paylusi's wife stopped in the front room, Mr. Paylusi joined Comosona in an adjoining room. Shortly thereafter, Mr. Paylusi was found lying on the floor of the adjoining room with the knife wound. Comosona was later found and arrested walking down a street in Zuni.

Prior to trial, Comosona moved to suppress statements which he gave to law enforcement officials on the afternoon of the day following the incident. The trial court denied the motion without making specific findings on the record and Comosona has appealed from this denial. In United States v. Espinosa, 771 F.2d 1382, 1407 (10th Cir.) (quoting United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.)), we held that:

"On review of the denial of the motions to suppress, we will accept the findings of fact made by the trial court unless clearly erroneous; if findings were not made, this court must still 'uphold the ruling if there is any reasonable view of the evidence to support it.' "

Since the Government prevailed on this suppression motion, we view the evidence adduced at the suppression hearing in the light most favorable to the Government. See, e.g., United States v. Ellison, 791 F.2d 821, 822 (10th Cir.). We have carefully reviewed the record of the suppression hearing and conclude that the evidence so viewed shows the following.

Upon arrest, Comosona was taken into custody at the Zuni tribal jail where he was interrogated by law enforcement officials the following afternoon. This was conducted by Special Agents Babcock and Coffman of the Federal Bureau of Investigation and Criminal Investigator Bowekety of the Zuni Police Department. At the beginning of the interview, Comosona was advised of his rights as required by Miranda, in both Zuni and English. Comosona stated that he understood his rights and he signed a "Waiver of Rights" form which had been read to him in both Zuni and English.

During the ensuing interrogation Comosona admitted to throwing a knife at Mr. Paylusi. Before this admission could be reduced to a signed written statement however, Comosona asserted his right to counsel whereupon the interview was terminated. As the law enforcement officials were leaving the interview room, Agent Babcock handed Comosona a business card and invited Comosona to call him collect if he wished to speak further about the incident. Almost immediately Comosona stated that he wanted to continue the interview. When Agent Babcock readvised Comosona that he had a right to the advice of an attorney during interrogation, Comosona stated that he was aware of this right but that he desired to proceed with the interrogation unassisted by counsel.

During the minutes which followed, Comosona went into greater detail regarding the incident which culminated in Mr. Paylusi's death. Ultimately, Comosona's oral admissions were reduced to a written confession. Comosona reviewed this statement and signed it.

In this appeal the Government concedes that Comosona's statements were the product of a custodial interrogation and that the protections afforded by Miranda apply. The crux of the instant dispute is whether the statements given by Comosona after he had invoked his right to the assistance of counsel during the interrogation and then continued were admissible in the Government's case in chief.

In Miranda, the Supreme Court, of course, held that "[i]f the individual [being interrogated] states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694. This was reiterated, but with a significant qualification, in Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, where the Court held that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." (Emphasis added.) Thus, Edwards established that an accused's invocation of the right to counsel is not a bar to further interrogation as long as "the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 485, 101 S.Ct. at 1885. This principle was further elaborated upon in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405, in which eight members of the Supreme Court agreed that a statement made by an accused during a custodial interrogation, after the accused has invoked his right to counsel, is admissible in the Government's case in chief if the accused initiates further conversation after the invocation and if the Government carries the burden of showing that the accused subsequently waived his Fifth Amendment right to the assistance of counsel.

Comosona argues that it was the law enforcement officials who continued after he invoked his right to counsel and he did not initiate further conversation. Specifically, Comosona contends that Agent Babcock's invitation to call him collect constituted impermissible "interrogation." The definition of the term "interrogation," for the purposes of Miranda analysis, was set forth by the Supreme Court in Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297:

"[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."

We cannot agree with Comosona that Agent Babcock should have known that giving Comosona his card and inviting him to call collect was "reasonably likely to elicit an incriminating response." Rather, we conclude that Agent Babcock acted in a manner "normally attendant to arrest and custody" when he gave Comosona his card and invited him to call to discuss the incident further. We are mindful that Agent Babcock's intent is not determinative here, but it "may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response." Rhode Island v. Innis, 446 U.S. at 302 n. 7, 100 S.Ct. at 1690 n. 7. Agent Babcock testified at the suppression hearing that he gave Comosona his card in case "he had any questions or ... wanted to initiate the interview later on, or wanted to advise his lawyer ... or ... his relatives who the agent was." Agent Babcock's practice was reasonable under the circumstances and we conclude that characterizing such a practice as "interrogation" would unduly hamper law enforcement officials in the routine aspects of their criminal investigations. The position and findings of the trial court were correct.

We further find that Comosona initiated further conversation with the law enforcement officials within the meaning of the Edwards decision when he asked to continue the interrogation without the assistance of counsel.

We further agree with the trial court that Comosona effectively waived his right to the assistance of counsel subsequent to his invocation of that right. In Edwards, the Supreme Court held that an effective waiver of counsel

"must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' "

451 U.S. at 482, 101 S.Ct. at 1884 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461).

Looking at the evidence in the light most favorable to the Government, we conclude that Comosona gave two effective waivers of his right to counsel; first, when he signed the "Waiver of Rights" form and second, when he orally told the law enforcement officials that he wished to proceed with the interrogation without the assistance of counsel. As noted above, Comosona had been advised of his rights in both Zuni and English. The trial court found that he understood those rights and intended to waive them and found that Comosona initiated further conversation with the law enforcement...