Timothy Dale Bunch v. Charles Thompson, Warden, (Two Cases) , 949 F.2d 1354 ( 1991 )

SPROUSE, Circuit Judge,

dissenting:

I concur in all of the majority opinion except Part II.A. to which I respectfully dissent.

The majority believes that the language used by the Supreme Court in Edwards was confusing and that the Edwards rule was neither bright nor linear. It is the majority's view that not until Solem was Edwards clarified as establishing “a bright-line rule that before a suspect can waive his invoked right to counsel he must be the party to initiate subsequent communication.”

In my view, the bright-line rule was clearly announced in Edwards. Solem did not alter or modify the Edwards rule. Since the parameters of the waiver of counsel requirements were established in Edwards, consideration of Teague’s retroac-tivity principles is simply misplaced. Accordingly, the Virginia courts should have observed Edwards and suppressed Bunch’s statement to Cahill. Although the Edwards majority was challenged within the Supreme Court by two separate opinions, the majority rejected those challenges and, as shown in Bradshaw, and Solem, persisted in its view that once a defendant invokes his right to counsel, the accused must initiate conversation to establish a valid waiver.

The Supreme Court in Edwards, realizing that additional safeguards were necessary to protect an accused’s request for counsel, held that:

when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Id. 451 U.S. at 484-85, 101 S.Ct. at 1884-85 (emphasis added). The six-justice majority could not have been any clearer in its holding that once a suspect invokes his right to counsel, only communication initiated by the accused can provide the basis for further interrogation.

Chief Justice Burger concurred only in the judgment because he disagreed with the majority about the need for a “special” rule concerning the waiver of a right to be free from interrogation — opining that the validity of such waivers should be determined under the particular facts and circumstances standard of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Justice Powell also refused to join the majority. Like Justice Burger, he was of the view that the issue of Edwards’ waiver of counsel should have been considered under the Zerbst standard. Justice Powell also criticized “what appears to be an undue, and undefined, emphasis on a single element: ‘initiation.’ ” Id. 451 U.S. at 491-92, 101 S.Ct. at 1888.

The majority here claims Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), decided six days after Bunch’s state appeal, demonstrates that Edwards was an uncertain rule. In Bradshaw, however, eight members of the Supreme Court restated that the waiver ruling in Edwards was absolute. The plurality opinion stated:

We think the Oregon Court of Appeals misapprehended the test laid down in Edwards. We did not there hold that the “initiation” of a conversation by a defendant such as respondent would amount to a waiver of a previously invoked right to counsel; we held that after the right to counsel had been asserted by an accused, further interrogation of the accused should not take place “unless the accused himself initiates further communication, exchanges, or conversations with the police.”

Id. 462 U.S. at 1044, 103 S.Ct. at 2834 (citations omitted). Four dissenting justices agreed. The dissent stated, “To establish a waiver, it would thus be a necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Id. at 1053, 103 S.Ct. at 2839 (internal quotations, emphasis, and citations omitted). Although the justices disagreed as to whether the defendant had in fact initiated conversation, both the plurality and the dissent agreed the defendant must be the one to initiate conversation for a valid fifth amendment waiver.

The issue in Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), was whether Edwards established a “new rule” so as to apply retroactively to a state court decision rendered before Edwards. Justice White, for a five-member majority, wrote:

Edwards established a bright-line rule to safeguard preexisting rights, not a new substantive requirement ... Edwards established a new test for when that waiver would be acceptable once the suspect had invoked his right to counsel: the suspect had to initiate subsequent communication____

Before Edwards, the question whether the authorities could resume questioning after a defendant has asked for an attorney was acknowledged to be unsettled.

Solem, 465 U.S. at 646, 648, 104 S.Ct. at 1343, 1344. The Solem court held that since Edwards established a “new rule,” it was not to be retroactively applied. Re-troactivity, not the parameters of Edwards, was the issue in Solem. In fact, whether the treatment of defendant Stumes violated Edwards was not even an issue for decision. “We ... assume for present purposes that the conduct at issue here violated Edwards.” Id. 465 U.S. at 642, 104 S.Ct. at 1341. Therefore, Solem could not have established a new rule because it neither extended nor modified Edwards.

The majority here holds that the Virginia Supreme Court could have reasonably interpreted Edwards to sanction the type of reinterrogation conducted by Officer Cahill, because not until Solem was it clear that the interrogation violated the rule established in Edwards. Because Solem announced a new rule, the majority reasons, it is not to be applied retroactively to Bunch. I disagree.

In Teague, Justice O’Connor defined a “new rule:”

[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government____ To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.

Teague 489 U.S. at 301, 109 S.Ct. at 1070. It is true that the Supreme Court in considering the “new rule” principle of Teague stated: “The ‘new rule’ principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler, 494 U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (March 5, 1990). Not even in the most generous recognition of comity, however, could we suggest that a state court’s interpretation of a United States Supreme Court decision on federal constitutional law is reasonable when the United States Supreme Court has clearly reached a contrary conclusion.

The majority here relies on the opinion of various state courts to illustrate that other state courts’ interpretation of Edwards was similar to that of the Virginia Supreme Court in this case. The problem I have with that approach is that a majority of the United States Supreme Court justices have expressed views inconsistent with those expressed by these state appellate bodies. Although the majority here may take some comfort from the concurrence of Justice Powell in Edwards that he found the majority opinion confusing, it goes without saying that if the majority of the Supreme Court holds the Edwards opinion to be clear — it is clear.

In collateral review cases, the Supreme Court, of course, is always sensitive to the effect of its opinions on the administration of criminal justice in state courts. Teague 489 U.S. at 308, 109 S.Ct. at 1073. Whether or not this comity concern is really another aspect of the sometime tension between concerns of finality on the one hand and fundamental fairness and protection of truth-finding procedures on the other, state court decisions cannot undermine the finality of decisions of the United States Supreme Court, under any of the various formulations for determining issues of re-troactivity. See Teague; Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). The majority opinion here, however, would interpret Teague as allowing lower courts to render a clear decision of the Supreme Court unclear; the result produces the very lack of finality the majority panel here decries.

So no matter how respectable state judicial authorities might be, we are concerned here with a federal constitutional issue. Although some state courts have reacted to Edwards as if its intentions were unclear and the announced test confusing, a majority of the Supreme Court has consistently treated it as announcing a bright-line test. The test in Solem is no different than in Edwards. Its results were dictated by the existing precedent of Edwards. Edwards clearly held that once a suspect invokes the right to counsel, police interrogation must not be renewed unless the suspect initiates the conversation.

Here Detective Cahill asked Bunch “if he felt he was ready to sit down and go over the case” — clearly Cahill, not Bunch, initiated the conversation leading to the subsequent interrogation at the Prince William County police station. That was a violation of Bunch’s fifth and fourteenth amendment rights defined by Edwards. In affirming the state trial court’s denial of suppression, the Virginia Supreme Court committed constitutional error. Accordingly, I dissent on this issue.