Ira Nash, Jr. v. W. J. Estelle, Jr., Director, Texas Department of Corrections, Respondent , 597 F.2d 513 ( 1979 )

CHARLES CLARK, Circuit Judge:

Ira Nash, Jr., was convicted in a jury trial of murder with malice and sentenced to imprisonment for one hundred years. The district court, without holding an evidentiary hearing, granted Nash’s petition for a writ of habeas corpus on the grounds that a written confession introduced against Nash had been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964). A panel of this court reversed the grant of habeas corpus in a 2-1 decision. Nash v. Estelle, 560 F.2d 652 (5th Cir. 1978). On rehearing en banc, we reverse the grant of habeas corpus relief.

I.

Henry Moore, a taxi driver, was found shot to death in his cab on February 20, 1969, on an unimproved road near the outskirts of Tyler, Texas. Moore’s watch and money were missing. A witness placed the petitioner, Ira Nash, in Moore’s cab shortly before Moore’s body was discovered.

Nash was arrested on May 26, 1969, pursuant to a warrant, and was brought before a magistrate and informed of his Miranda rights. While in the custody of the deputy sheriff, Nash orally confessed to the murder of the cab driver. The oral confession was not introduced at Nash’s state trial and is not in dispute here. On the morning of June 2, 1969, Nash was brought into the office of Assistant District Attorney F. R. Files, Jr., to discuss the impending murder charge. During the course of their tape recorded conversation Nash again confessed to the murder; he later signed a written statement prepared from that recorded conversation. The next day Nash and Files drove to the murder scene and Nash confessed yet a third time to his crime. A written statement derived from that inspection was prepared and it too was signed by Nash.

II.

The dispute on appeal is whether District Attorney Files violated Nash’s right to the presence of counsel during the course of their initial June 2 conversation. Resolution of the issue turns on the interpretation to be placed on the following dialogue between Nash and Files:

FILES: Ira, my name is Buck Files. Files. It is written right here where you can see it. I work up here in this office. I am a lawyer. I want to talk to you this morning, if you wanted to talk to me. Before we talk, did you ever play any football? Baseball, or anything like that? Did you ever watch it played?

NASH: I played a little in High School.

FILES: You know, every ball game has some rules that you got to play by. Well, one of the rules is, of course, that I’ve got to tell you the same thing that that Judge told you the other day, before we can have any talking. You understand?

NASH: Yes, sir.

FILES: Please be sure and speak up loudly enough where that microphone can hear. Pull your old chair in a little bit. Okay. Now, before we start, let me tell you something. If you want to go to the bathroom, smoke a cigarette, you want some coffee, you let me know, because there is no problem on doing it. Now, the Judge read the whole pink paper to you the other day, and it is just a rule that I need to go over the same thing with you again. You understand that you have the right to remain silent; that anything that you say can and will be used against you in a Court of Law?

NASH: Yes, sir.

FILES: You understand?

NASH: Yes, sir.

FILES: You have the right to talk to a lawyer and have him present with you while you are being questioned. You understand that, don’t you?

NASH: Yes, sir.

FILES: If you can’t afford to hire a lawyer, one will be appointed to represent you before any questioning, if you want one. You understand that, don’t you?

NASH: Yes, sir.

FILES: And you can end this interview at any time. You understand?

NASH: Yes, sir.

FILES: If you get tired of talking to me, if you don’t like something I say, you don’t like it, you just don’t like anything about it, you can just tell me to be quiet, that you don’t want to talk to me any more. You understand?

NASH: Yes, sir.

FILES: Now, I want to talk to you about this shooting, where the taxicab driver got shot. This is what I am interested in. I am not interested in burglaries you may have committed some place. I’m not interested in any robberies. I am not interested in marijuana. I’m interested in that taxicab shooting. You understand?

NASH: Yes, sir.

FILES: Do you want to talk to me about this?

NASH: Yes, sir.

FILES: You understand everything I’ve told you?

NASH: Yes, sir.

FILES: And nobody downstairs has threatened you in any way to get you to come up here and talk to me?

NASH: No, sir.

FILES: Be sure and speak up loudly.

NASH: No, sir.

FILES: No one has promised you anything if you would come up and talk to me, have they?

NASH: No, sir.

FILES: You understand that nobody can threaten you and nobody can promise you anything. You understand that, don’t you?

NASH: Yes, sir.

FILES: I’ve got a form here. I just read you the top half of it about the right to remain silent, a lawyer, end the interview and all that. And down here at the bottom it says, “I have been warned about my rights by” and there is a blank where we can fill in my name. And then this thing says, “I understand that I don’t have to tell him anything and what I do say can be used against me in Court. I do not want to have a lawyer present at this time— just what you told me, up here.

NASH: Yes, sir.

FILES: Now, if you want to talk to me about this thing, it’s just one of the rules I need you to fill in where it says that, and if you understand what I told you — this is sort of like going over it 17 times, but it is just a rule. If you understand that you don’t have to tell me anything and what you do say can be used against you in Court, and if you don’t want to have a lawyer present right now, then I need you to sign this. Okay?

NASH: Yes, sir.

FILES: Oh, let’s see if we can find a fountain pen. Here’s one. If you will put my name down there on this line just like it’s written. How far did you go in school, Ira?

NASH: I went to a senior, but I didn’t march through.

FILES: Where did you go to school? Emmett Scott?

NASH: I went to school in Dallas.

FILES: What school up there?

NASH: I went to Madison for a while, and then I went to Lincoln. Lincoln High.

FILES: F-i-l-e-s. I haven’t heard you read. Just to show me that you can read, I want you to read that thing out loud to me there.

NASH: I don’t read too well, you know.

FILES: Let’s see what you can do.

NASH: “I understand that I do — I don’t have to tell him anything, and what I say can be used against me in Court. I do not want to — I mean I do not want to have a lawyer present in Court, I mean at this time.

FILES: Then the place under that is—

NASH: If I want a lawyer present, I just put down I want him present?

FILES: Please just tell us about it. Any time we are talking and you decide that you need somebody else here, you just tell me about it and we will get somebody up here.

NASH: Well, I don’t have the money to hire one, but I would like, you know, to have one appointed.

FILES: You want one to be appointed for you?

NASH: Yes, sir.

FILES: Okay. I had hoped that we might talk about this, but if you want a lawyer appointed, then we are going to have to stop right now.

NASH: But, uh, I kinda, you know, wanted, you know, to talk about it, you know, to kinda, you know, try to get it straightened out.

FILES: Well, I can talk about it with you and I would like to, but if you want a lawyer, well, I am going to have to hold off, I can’t talk to you. It’s your life.

NASH: I would like to have a lawyer, but I’d rather talk to you.

FILES: Well, what that says there is, it doesn’t say that you don’t ever want to have a lawyer, it says that you don’t want to have a lawyer here, now. You got the right now, and I want you to know that. But if you want to have a lawyer here, well, I am not going to talk to you about it.

NASH: No, I would rather talk to you.

FILES: You would rather talk to me? You do not want to have a lawyer here right now?

NASH: No, sir.

FILES: You are absolutely certain of that?

NASH: Yes, sir.

FILES: Go ahead and sign that thing.

In granting Nash’s habeas petition, the district court ruled that Nash had invoked his constitutional right to the presence of counsel at the interrogation which produced his first written confession and that as a matter of law that right to counsel could not be waived.

III.

United States v. Priest, 409 F.2d 491, 493 (5th Cir. 1969), held:

Where there is a request for an attorney prior to any questioning, as in this case, a finding of knowing and intelligent waiver of the right to an attorney is impossible. . [T]he suspect has an absolute right to delay interrogation by requesting counsel. If such a request is disregarded and the questioning proceeds, any statement taken thereafter cannot be a result of waiver but must be presumed a product of compulsion, subtle or otherwise.

We construe Priest to bar inquiry as to waiver when, prior to any questioning, the suspect makes an unequivocal request for an attorney’s presence, as was done in Priest, and when the request is disregarded and the questioning proceeds. See United States v. Massey, 550 F.2d 300 (5th Cir. 1977). Our cases subsequent to Priest have also made it clear that Priest is inapplicable when a suspect spontaneously incriminates himself after questioning has ceased. When police stop interrogation as required, admissions that later come at the initiative of a suspect are subject to the traditional analysis for voluntariness. See United States v. Anthony, 474 F.2d 770 (5th Cir. 1973); United States v. Hodge, 487 F.2d 945 (5th Cir. 1973); United States v. Cavallino, 498 F.2d 1200 (5th Cir. 1974).

The same principle governs when, as here, a suspect who has been informed of his rights expresses both a desire for counsel and a desire to continue the interview without counsel. Where the suspect’s desires are expressed in such an equivocal fashion, it is permissible for the questioning official to make further inquiry to clarify the suspect’s wishes.

Miranda itself contemplated that when confronted with his options a suspect might be indecisive on whether an attorney is desired:

“ ‘If [a suspect] is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent.’ ”

384 U.S. at 485, 86 S.Ct. at 1633. While the suspect has an absolute right to terminate station-house interrogation, he also has the prerogative to then and there answer questions, if that be his choice. Some persons are moved by the desire to unburden themselves to confessing their crimes to police, while others want to make their own assessment of what to say to their custodians. “[A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.” Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). When, as in the case at bar, a desire for immediate talk clearly appears from the suspect’s words and conduct, but he also states he wants a lawyer (j. e., “I would like to have a lawyer, but I would rather talk to you”), it is sound and fully constitutional police practice to clarify the course the suspect elects to choose. The precedent of Priest does not bar this clarification.

This is not to say that an interrogating officer may utilize the guise of clarification as a subterfuge for coercion or intimidation. As the Supreme Court reiterated in Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977), in examining an alleged waiver of the right to counsel “courts indulge in every reasonable presumption against waiver.” Miranda stated that a suspect may waive effectuation of his rights but only if “the waiver is made voluntarily, knowingly and intelligently.” 384 U.S. at 444, 86 S.Ct. at 1612. The critical factor is whether a review of the whole event discloses that the interviewing agent has impinged on the exercise of the suspect’s continuing option to cut off the interview.

Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.

Michigan v. Mosley, 423 U.S. at 103, 96 S.Ct. at 321, 326. See also North Carolina v. Butler, - U.S. -, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

IV.

Since Priest does not apply to a suspect who voluntarily chooses not to invoke his right to the presence of an attorney during interrogation, the outcome of Nash’s habeas petition turns on a factual analysis of his interview with Files. Solely on the basis of reading the interview transcript, the district court concluded that Nash asked for an attorney to be present during questioning. Reading the same transcript, we disagree with the inferences drawn by the district court, and conclude that Nash never requested an attorney’s presence during questioning, but merely sought assurances that his right to counsel at later stages of the criminal process would not be waived if he followed his desire to discuss his involvement in Moore’s death with Files. Since the district court had nothing more before it than the same transcript we now review, our interpretation of the interview is unconstrained by the usual strictures of the clearly erroneous standard. Datamedia Computer Service, Inc. v. AVM Corporation, 441 F.2d 604, 608 (5th Cir. 1971); Caradelis v. Refinería Panama, S.A., 384 F.2d 589 (5th Cir. 1967); Hillard v. Commissioner of Internal Revenue, 281 F.2d 279, 282 (5th Cir. 1960).

At the outset of our analysis of the Nash-Files interview, we note that Files, as an officer of the court and an official in the district attorney’s office for the State of Texas, is entitled to a presumption that he discharged his duties with regularity and in compliance with the Constitution. It is axiomatic that a “presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926). See also Citizens To Preserve Over-ton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). The presumption has been frequently applied to the actions of all sorts of governmental officials, and the Supreme Court has specifically noted its application to state prosecutors. Dombrowski v. Pfister, 380 U.S. 479, 484, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965).

The circumstances surrounding Files’ interview of Nash fully support the assumption of both subjective good faith and objectively proper conduct during his colloquy with Nash concerning the right to counsel. It was Files’ choice to make a permanent record of every word exchanged between the two men. Nash was a man who had already orally confessed to murdering Henry Moore when he came into Files’ office for the purpose of making an official written declaration of the events concerning his crime. Nash’s apparent willingness to talk negates the existence of any motive for manipulation by Files. Moreover, it would have been simple-minded for Files to have attempted to work some insidious stratagem during an interrogation he deliberately chose to preserve on magnetic tape.

We are not, as the district judge was not, required to determine what took place at the interview from conflicting testimony of those who were present. There is no dispute as to the exchange that took place between Files and Nash. The tape recording settles those facts, and each party relies upon the accuracy of that record. Nothing contained in this opinion shall be taken as authorizing the fact finder to accord the testimony of a government lawyer or law enforcement officer any particular weight on account of his office or to assume that his version of regularity is true when the resolution of conflicts in evidence is required.

From the beginning to the end of the transcript, Files’ conduct reveals a proper sensitivity to Nash’s rights. The transcript records that Nash never had an intention of doing anything other than making formal his prior oral confession to the murder of Henry Moore. Files made it amply clear that Nash could cut off questioning at any point and consult an appointed lawyer. He repeatedly explained that option to Nash and even took the precaution of having Nash read the written statement of rights aloud. While reading the statement of his rights, Nash reached the portion describing his rights to counsel and asked:

If I want a lawyer present, I just put down I want him present?

Files’ response was:

Please just tell us about it. Any time we are talking and you decide that you need somebody here, you just tell me about it and we will get somebody up here.

Taken in its entirety, this response cannot fairly be interpreted as a subtle attempt to dissuade Nash from exercising his right to immediate counsel. “Please just tell us about it” was followed with yet another reminder that counsel was promptly available for the asking.

These exchanges about a lawyer followed:

NASH: Well, I don’t have the money to hire one, but I would like, you know, to have one appointed.

FILES: You want one to be appointed for you?

NASH: Yes, sir.

FILES: Okay. I had hoped that we might talk about this, but if you want a lawyer appointed, then we are going to have to stop right now.

NASH: But, uh, I kinda, you know, wanted, you know, to talk about it, you know, to kinda, you know, try to get it straightened out.

FILES: Well, I can talk about it with you and I would like to, but if you want a lawyer, well, I am going to have to hold off, I can’t talk to you. It’s your life.

NASH: I would like to have a lawyer, but I’d rather talk to you.

FILES: Well, what that says there is, it doesn’t say that you don’t ever want to have a lawyer, it says that you don’t want to have a lawyer here, now. You got the right to have that lawyer here right now, and I want you to know that. But if you want to have a lawyer here, well, I am not going to talk to you about it.

NASH: No, I would rather talk to you.

FILES: You would rather talk to me? You do not want to have a layer here right now?

NASH: No, sir.

FILES: You are absolutely certain of that?

NASH: Yes, sir.

FILES: Go ahead and sign that thing.

Nash did not enter Files’ office fresh from an initial apprehension. Files began the conversation with'the expectation that Nash would repeat his confession. Obviously, Files must have been surprised by Nash’s statement that he wished to have an attorney appointed. If the word “lawyer” were to be endowed with talismanic qualities, Files would have had to order Nash removed from his office without another word when “lawyer” fell from Nash’s lips. However, it is cle?r from the context of this colloquy that such unrealistic conduct would have denied to Nash his true desire to explain himself and to continue with the interview. Only by improperly assuming that Files was a devious trickster, who desired to subtly manipulate Nash, can the dialogue between Nash and Files be regarded as forestalling Nash’s rights. After he was assured by Files that the waiver of a lawyer at the interview did not waive his right to be represented by counsel at arraignment, plea bargaining or trial, and sentencing, Nash twice restated his desire to talk to Files at that very moment.

The presumption of regularity accorded to Files’ conduct prevents a parsing of his extemporaneous response for some hint of the “insidious prosecutorial stratagem” discerned by the district court. This is the verbatim transcript of a conversation between a man who knew from the outset that he possessed the right to halt the proceeding at any point and a man who we must presume had a good heart. When read in light of that presumption instead of the incorrect contrary assumption that Files acted on base motives, the transcript discloses he fairly and evenly apprised Nash of his rights. In the bright light of hindsight, different dialogues could be suggested either to fault Files’ responses or to put them beyond question as proper. That is not our responsibility. We must assay the event that actually occurred with the recollection that it took place between real people in a real world. Considering the actors and the setting, the exchange is not infected with a sinister undertone. Files did not violate any right accorded Nash by Miranda or Priest. The district court erred in granting the writ.

REVERSED.