United States ex rel. Williams v. Twomey, 71-1682.

Decision Date18 August 1972
Docket NumberNo. 71-1682.,71-1682.
Citation467 F.2d 1248
PartiesUNITED STATES of America ex rel. Ruben WILLIAMS, Petitioner-Appellant, v. John TWOMEY and Peter Bensinger, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

James B. Haddad, Chicago, Ill., for petitioner-appellant.

William J. Scott, Atty. Gen., James B. Zagel, Robert E. Davison, Asst. Attys. Gen., Chicago, Ill., for appellees.

Before SWYGERT, Chief Judge, PELL, Circuit Judge, and DILLIN, District Judge.*

DILLIN, District Judge.

Ruben Williams appeals from a decision of the court below denying his petition for a writ of habeas corpus, brought pursuant to Title 28 U.S.C. § 2254. We reverse.

Appellant was convicted in the Circuit Court of Cook County, Illinois of the murder of Robert R. Fleming and sentenced to imprisonment for not less than thirty-five nor more than fifty years in the Illinois State Penitentiary. He appealed, primarily on the grounds that five statements, four oral and one written, were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and erroneously admitted into evidence in violation of his constitutional rights under the Fifth and Sixth Amendments. The judgment was affirmed. People v. Williams, 264 N.E.2d 901 (Ill.App.1970), leave to appeal denied 45 Ill.2d 592 (1971).

His state remedies exhausted, appellant petitioned the district court for a writ of habeas corpus, submitting the petition for consideration upon the state court record. That court denied the petition, ruling that the record established that appellant had been adequately warned of his rights under Miranda and had voluntarily and knowingly waived them. We likewise rely upon the state court record.

I

The record reveals that Fleming was killed sometime during the early morning hours of October 15, 1967, in his Chicago apartment. Appellant was first arrested and taken into custody, also in the early morning hours of October 15, 1967, following an automobile accident he had on the Indiana Toll Road while driving Fleming's car. At the accident scene appellant presented Fleming's registration and credit cards to an Indiana State Trooper when asked for identification. The trooper took appellant to a police station to administer a Breatholizer test. Prior to the test the trooper read to appellant the legend printed on a standard form used by the Indiana State Police.1

Appellant then read the form and made an "X" on the signature line. Thereafter, under the trooper's questioning, he stated that he was Robert Fleming. He was charged with reckless driving, fined, and incarcerated in the Laporte County, Indiana jail for failure to pay the fine and costs, totaling $72.

On the evening of October 20, 1967, the same trooper learned that the automobile was connected to a Chicago homicide, and returned to the Laporte County Jail to question appellant. He read appellant the same warning and waiver of rights form, but this time appellant refused to sign or mark it. Nevertheless, the trooper proceeded to interrogate appellant, eliciting from him that he was in fact Ruben Williams and that he had borrowed the accident vehicle from Robert Fleming. Under further questioning he admitted having met Fleming in a bar on the night of October 14, and later having had a homosexual relationship with him in a hotel room, ending with a disagreement between them. He then refused to answer additional questions.

Appellant challenges the adequacy of the advice of his right to an attorney, in light of the qualifying language, "We have no way of furnishing you with an attorney, but one will be appointed for you, if you wish, if and when you go to court."

Miranda requires a clear and unequivocal warning to an accused of his constitutional rights, prior to the taking of any statement, whether exculpatory or inculpatory, during interrogation occurring after an accused is taken into custody. One of those rights is, of course, the right to the presence of counsel, hired or appointed, before and during any police questioning. Referring to the necessary warning of the right to appointed counsel at this crucial stage of the accusatory process, the Supreme Court said:

"The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent—the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it." Miranda, 384 U.S. 436 at 473, 86 S.Ct. 1602 at 1627, 16 L. Ed.2d 694 at 723.

We hold that the warning given here was not an "effective and express explanation;" to the contrary, it was equivocal and ambiguous. In one breath appellant was informed that he had the right to appointed counsel during questioning. In the next breath, he was told that counsel could not be provided until later. In other words, the statement that no lawyer can be provided at the moment and can only be obtained if and when the accused reaches court substantially restricts the absolute right to counsel previously stated; it conveys the contradictory alternative message that an indigent is first entitled to counsel upon an appearance in court at some unknown, future time. The entire warning is therefore, at best, misleading and confusing and, at worst, constitutes a subtle temptation to the unsophisticated, indigent accused to forego the right to counsel at this critical moment.

The practice of police interrogation of an accused, after informing him that counsel cannot be provided at the present time, is a practice anticipated and expressly prohibited by the Miranda decision.

". . . if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that the they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person\'s Fifth Amendment privilege so long as they do not question him during that time." Miranda, 384 U.S. 436 at 474, 86 S.Ct. 1602 at 1628, 16 L.Ed.2d 694 at 724.

Consistent with the above, many courts encountering similarly qualified warnings have recognized them as deficient. See United States v. Garcia, 431 F.2d 134 (9 Cir. 1970); Lathers v. United States, 396 F.2d 524 (5 Cir. 1968); Sullins v. United States, 389 F. 2d 985 (10 Cir. 1968); Fendley v. United States, 384 F.2d 923 (5 Cir. 1967); Square v. State, 283 Ala. 548, 219 So.2d 377 (1969); Reese v. State, 462 P.2d 331 (Okl.Cr.1969); State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (Wash.1969).

If an interrogation is conducted without an attorney present and a statement results, the government has a heavy burden of proving that the defendant "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724; Escobedo v. Illinois, 378 U.S. 478 (1964); United States v. Jenkins, 440 F.2d 574 (7 Cir. 1971); United States v. Nielsen, 392 F.2d 849 (7 Cir. 1968). In other words, the record must contain strong, affirmative evidence of a knowing and intelligent waiver. Waiver may not be presumed from a silent record, from the silence of the accused after warnings, or from the fact that an accused answers a few questions or gives some information, particularly when in-custody interrogation is involved. Miranda, supra; Jenkins, supra; Nielsen, supra.

The record here is totally barren of evidence of a knowing and intelligent waiver. There is no evidence to support an inference that the statements were spontaneous or volunteered. We accordingly hold that the October 15 and October 20 Indiana statements were inadmissible for lack of an adequate warning and for failure of proof of a knowing and intelligent waiver.

II

In addition to the two Indiana statements, appellant gave two oral statements to Chicago police and a written statement to the assistant state's attorney for Cook County, Illinois.

As aforesaid, on October 20 the appellant gave Indiana authorities an oral statement which thoroughly implicated him in the death of Robert Fleming. This information was transmitted to the Chicago police who promptly took him into custody the next day (without benefit of extradition proceedings) and, armed with knowledge of his Indiana statement, continued his interrogation at a Chicago police station. This questioning resulted in two more oral statements, culminating in appellant's admission that he had struck Fleming with a lamp. An assistant state's attorney was then called, who proceeded to take a written statement.

Although there was a conflict in the testimony as to whether or not appellant was informed of his constitutional rights by the Chicago detectives, we assume that some warnings were given. It is by no means clear from the record, however, exactly what those warnings were. The record reflects four different versions—two by each detective. Only if all four versions were considered together, could we find that an adequate warning was given and this without regard to the fact that appellant had been erroneously informed of his rights just the day before. However, it is certain that appellant was asked whether he wanted appointed counsel prior to making the written statement, and his response came loud and clear: "Yes, I want a lawyer . . . If it's possible that I can have one." The state's attorney then induced appellant to drop his request by the use of language remarkably similar to the condemned clause in the Indiana waiver of rights form.2

...

To continue reading

Request your trial
53 cases
  • State v. Maluia
    • United States
    • Hawaii Supreme Court
    • September 11, 1975
    ...369, 499 P.2d 893 (1972), was commended in State v. Grierson, 95 Idaho 155, 504 P.2d 1204, note 1 (1972).11 United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972): '* * * an attorney * * * will be appointed for you * * * if and when you go to court * * *' (see United States......
  • United States ex rel. Sanders v. Rowe
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 20, 1978
    ...to protect the exercise of his fifth amendment rights. He argues that the Seventh Circuit's decision in United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972), mandates the suppression of any statement made to police after the denial of the Miranda right to counsel, at leas......
  • Poyner v. Com.
    • United States
    • Virginia Supreme Court
    • April 26, 1985
    ...that he should have been told he had a right to the immediate appointment of counsel, defendant relies upon United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir.1972), and Lathers v. United States, 396 F.2d 524 (5th Cir.1968). Those cases appear to stand for the proposition for ......
  • Duckworth v. Eagan, 88-317
    • United States
    • U.S. Supreme Court
    • June 26, 1989
    ...interrogation with a future event." Id., at 1557. The majority relied on the Seventh Circuit's decision in United States ex rel. Williams v. Twomey, 467 F.2d 1248, 1250 (1972), which had condemned, as "misleading and confusing," the inclusion of "if and when you go to court" language in Mir......
  • Request a trial to view additional results
3 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT