Robert Lee Boles, Jr. v. Dale Foltz, Warden , 816 F.2d 1132 ( 1987 )

CORNELIA G. KENNEDY, Circuit Judge.

Petitioner-appellant Robert Lee Boles, Jr. (“petitioner”) appeals the District Court’s denial of his petition for writ of habeas corpus. Petitioner claims on appeal that: 1) his statements at a July 24,1978 arraignment on an unrelated larceny charge constituted a request for counsel and his confession to murder at a subsequent interrogation was therefore inadmissible; 2) the admission of a second confession and its derivative evidence was not harmless beyond a reasonable doubt; 3) neither confession was voluntary; and 4) the prosecutor’s use of peremptory challenges systematically excluded blacks from the jury and violated petitioner’s right to a fair and impartial jury. For the reasons stated below, we affirm the District Court’s decision denying petitioner’s petition for writ of habeas corpus.

Petitioner was convicted of first degree murder under Mich.Comp.Laws § 750.316 in a case involving a shooting in Saginaw, Michigan, on July 22, 1978. On that afternoon, the victim, Clyde Letson, was washing his truck at a self-service car wash. His daughter Holly was with him. A man approached Letson and began talking to him. The man shot Letson twice, bent over him, took something from his pocket, and ran away. Letson died shortly thereafter. Thirty to forty people were at the scene at the time of the shooting.

Petitioner was arrested the day following the shooting for an unrelated offense. He was apparently also a suspect in the shooting. On the next day, July 24, petitioner was arraigned on the unrelated offense of larceny. At the larceny arraignment, the following exchange took place:

The Court: Mr. Boles I assume you desire to have a Preliminary Hearing on this matter, is that correct?

Mr. Boles: Yes I do Your Honor.

The Court: Okay.

Mr. Boles: My, my ah, attorney appear here right now. i

The Court: What’s that?

Mr. Boles: I wanted to ah, want a little advise to — I want to hear the Preliminary ...

The Court: Oh please don’t put anything on the record at this time. Don’t talk at this time. Wait until after you talk to your lawyer, do you understand?

Mr. Boles: All right.

The Court: I’m going to set your hearing for the 4th day of August.

Mr. Boles: All right.

The Court: Now how about a lawyer, can you afford to hire your own lawyer ah, Mr. Boles?

Mr. Boles: Yes I got one.

The Court: You have one, okay.

Joint Appendix at 140-41.

On July 25, petitioner appeared in a lineup related to the murder and a third offense, felonious assault and unarmed robbery. The same day police officers, acting on a search warrant, found a tool check in petitioner’s car which corresponded to tool checks belonging to the victim. On July 27, petitioner was booked on an open murder charge. On July 28, at noon, he was advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and waived them in writing. He was then interrogated and confessed to the murder of Letson. At 2:15 that same afternoon, petitioner was arraigned on the felonious assault charges. He requested that the court appoint an attorney for him. A short time later, the police returned and took petitioner to the locations at which he claimed to have disposed of the murder weapon and the victim’s wallet. On the way to these locations, the officers advised petitioner of his rights and reinterrogated him on tape. He again confessed to murder. The wallet was found in a trash can, but the gun, which petitioner claimed to have thrown in a river, was never found. On July 31, petitioner was arraigned on an open murder warrant.

At a pretrial Walker hearing, People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965), petitioner moved to suppress both confessions. He claimed that his statements were obtained involuntarily and in violation of his right to have counsel present during interrogation. The state trial court concluded that both confessions were knowingly and voluntarily made and they were admitted into evidence. The victim’s wallet was also admitted into evidence. Petitioner was convicted of first degree murder and sentenced to life imprisonment. The conviction was affirmed by the state appellate court and petitioner’s application for leave to appeal to the state supreme court was denied.

Petitioner filed his petition for writ of habeas corpus on July 9, 1982, in the District Court for the Eastern District of Michigan. The District Court initially conditionally dismissed the petition for failure to exhaust available state remedies. Boles v. Foltz, 559 F.Supp. 1302 (E.D.Mich.1983). Petitioner amended his complaint and argued that his confessions were involuntary, the result of a delayed arraignment and taken in violation of his right to counsel. In addition, he challenged the search of his car and the jury selection process. The District Court denied relief on the last two claims. Regarding the confessions, it held that petitioner’s statements at the first arraignment did not constitute a fifth amendment request for counsel and thus the first confession was properly admitted at trial. The Court found that the second confession was not properly admitted because petitioner had requested counsel at the second arraignment, but that admission of the second confession was harmless error. Finally, the Court held that both confessions were voluntary. Petitioner appeals the District Court’s denial of his petition for writ of habeas corpus.

I.

Petitioner claims on appeal that his statements at the larceny arraignment constituted a request for counsel and that the subsequent interrogation was in violation of his fifth amendment rights. The District Court found that “a fair reading of the transcript at the first arraignment shows that Petitioner did not invoke his Fifth Amendment right to have counsel present during interrogation.” District Court Opinion at 15-16. We agree.

The Supreme Court has held that “when an accused has invoked his right to have counsel present during custodial interrogation, ... [the accused] is not subject to further interrogation by the authorities until counsel has been made available.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). In this case, however, petitioner did not invoke his fifth amendment right at the larceny arraignment. Petitioner stated that he had an attorney and that he wanted that attorney present at the preliminary hearing. His statements did not express “his desire to deal with the police only-through counsel.” Id. at 484, 101 S.Ct. at 1884. Although the law does not require a defendant to indicate whether a request for counsel is based on the fifth amendment privilege against self-incrimination or the sixth amendment right to be represented by counsel during judicial proceedings, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 1409 n. 7, 89 L.Ed.2d 631 (1986), where it is clear that the defendant’s request is for something other than the presence of an attorney during interrogation, the request should be so construed. The Supreme Court applied this reasoning in a recent case in which a defendant stated that he was willing to give an oral statement to police but that he would not give a written statement unless his attorney was present. Connecticut v. Barrett, — U.S. -, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). The Court held that “[t]o conclude that respondent invoked his right to counsel for all purposes requires not a broad interpretation of an ambiguous statement, but a disregard of the ordinary meaning of respondent’s statement.” Id. 107 S.Ct. at 832. In the case before us the ordinary meaning of petitioner’s statements is that he wished to have his attorney present at the preliminary hearing. We find that petitioner did not invoke his right to have counsel present during interrogation and thus his first confession was properly admitted into evidence.

II.

Petitioner also challenges the admission into evidence of his second confession and its derivative evidence. He argues that his request at the second arraignment that counsel be appointed invoked his right to have counsel present at the second interrogation. He asserts that the admission of the taped second confession, and the wallet and tool check found as a result of that confession, was improper. The District Court held that petitioner had invoked his right to have counsel present during interrogation and that admission of the second confession and its derivative evidence was improper. It also held, however, that admission of that evidence was harmless beyond a reasonable doubt.

The District Court found that petitioner had invoked his rights under Edwards, stating that “[u]nless a defendant has clearly indicated that he desires counsel for something other than help during police interrogation, the Court should assume that his request for counsel at arraignment invokes his Fifth Amendment right.” District Court Opinion at 10. Because the police proceeded with the second interrogation outside of the presence of counsel, the District Court held that petitioner’s rights had indeed been violated and the second confession improperly admitted into evidence.

The District Court also found, and we agree, that admission of the confession and its derivative evidence was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Court found first that “[petitioner's taped confession was merely a reiteration of his first confession and therefore cumulative.” District Court Opinion at 16. It also stated that because in his testimony petitioner had admitted having had the wallet, its admission at trial was not material. The Court noted the incriminating testimony of three witnesses at trial, and held that “[c]ontrasting the amount of prejudice against the quantum of evidence, this Court is constrained to find the errors harmless beyond a reasonable doubt.” Id. at 17-18 (citing Bailey v. Hamby, 744 F.2d 24 (6th Cir.1984)). The Court separately addressed the admission of the tool check into evidence and held that, although the question was a close one, its admission was also harmless. We find the analysis of the District Court to be correct and affirm its decision regarding petitioner’s second claim.

III.

Petitioner next asserts that his confessions were involuntary. He cites the fact that at the time he was twenty-two years old, had a ninth grade education, and was barely able to read or write. He testified at trial that he was never advised of his rights in accordance with Miranda and was told by police officers that he would certainly receive a life sentence if he did not confess. He also asserts that he asked the interrogating officer when he would receive an attorney. Contrary to petitioner's testimony, the interrogating officer, Officer Bradley, testified that petitioner had been advised of his rights, had not been promised anything or threatened, and had not requested to see an attorney. The state trial court found that petitioner had been advised of his rights and that the confession was admissible. The state court of appeals affirmed these findings.

We affirm the District Court’s finding that petitioner did not meet his burden of proving that the confession was involuntary. In a federal habeas action, the burden of proving that the confession was involuntary rests with the petitioner. Jurek v. Estelle, 623 F.2d 929, 937 (5th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). Furthermore, voluntariness need only be proven by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). In this case, the trial court and the state appellate court disbelieved petitioner’s claims that he had never been advised of his rights, that he had been threatened, and that he asked for an attorney. The state court’s findings of fact are conclusive if fairly supported by the record. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 453, 88 L.Ed.2d 405 (1985). The District Court found, and we agree, that the state court’s findings were supported by the record and it held that petitioner’s confessions were not involuntary.

IV.

Petitioner finally challenges the jury selection process. He claims that his constitutional right to a fair and impartial jury was violated because the prosecutor used her peremptory challenges to systematically exclude blacks from the jury. The District Court dismissed this claim on the basis of Swain v. Alabama, in which the Supreme Court held that a defendant could not establish a violation of the Equal Protection Clause solely on proof of the prosecutor’s action at defendant’s trial. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The Supreme Court in Batson v. Kentucky, — U.S. -, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), announced a new standard for proving unconstitutional abuse of peremptory challenges. We affirm the District Court’s dismissal of petitioner’s claim, however, because the Supreme Court recently held that Batson should not be applied retroactively on collateral review of convictions that became final before Batson was announced. Allen v. Hardy, — U.S. -, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). Because petitioner’s conviction was final prior to the announcement of the new standard, the standard in Swain would control in petitioner’s case. We affirm the District Court’s dismissal of petitioner’s challenge on the basis of Swain.

V.

We affirm the District Court’s denial of petitioner’s petition for writ of habeas corpus.