Alston v. Redman, Wdn.

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-7-1994
Alston v. Redman, Wdn.
Precedential or Non-Precedential:
Docket 93-7423
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-7423
HAROLD S. ALSTON,
Appellant
v.
WALTER REDMAN, Warden; CHARLES M. OBERLY, III, Attorney General
of the State of Delaware; and the STATE OF DELAWARE,
Appellees
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 91-00441)
Argued May 2, 1994
BEFORE: GREENBERG and GARTH, Circuit Judges,
and ROBRENO, District Judge*
(Filed: September 7, 1994)
Robert E. Nicholson (argued)
155 Livingston Avenue
New Brunswick, NJ 08901
Attorney for appellant
Loren C. Meyers (argued)
Deputy Attorney General
Department of Justice
State Office Building
820 N. French Street
Wilmington, DE 19801
*
Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Attorney for appellees
OPINION OF THE COURT
EDUARDO C. ROBRENO, District Judge.
Harold S. Alston appeals the denial by the district
court of his petition for writ of habeas corpus. He argues that
his present incarceration by the state of Delaware is illegal
because his conviction was bottomed on self-incriminating
statements taken in violation of his constitutional rights. More
specifically, Alston claims that he was interrogated by the
authorities in violation of his right to counsel as established
by the Sixth Amendment and by Miranda v. Arizona, 384 U.S. 436
(1966). He also claims that his waiver of his Miranda right to
counsel was coerced. We find that the Sixth Amendment violation
was harmless error, that petitioner's invocation of his Miranda
right to counsel was anticipatory since it was made outside of
the context of custodial interrogation, and was thus ineffective,
and that his waiver was not coerced. We will therefore affirm.
I.
In the summer of 1985, police officers were
investigating a number of robberies that had taken place in and
around Wilmington, Delaware. At the scene of the robbery of
Allen Medkeff and Michelle Sands (the "Medkeff-Sands robberies"),
police recovered a fingerprint from an item touched by the
robber. Acting upon information provided by a confidential
informant linking petitioner Harold S. Alston to the Medkeff-
Sands robberies, the police compared the recovered fingerprint to
Alston's known prints, and established that the prints matched.
A warrant for Alston's arrest issued, charging him with first
degree robbery and second degree conspiracy, and he was arrested
in North Carolina on August 19th. Waiving extradition, he was
brought to Delaware on August 23rd, and was interrogated that
same day by Delaware State Police. The police gave Alston his
Miranda warnings, as required by Miranda v. Arizona, 384 U.S. at
444-45. He waived his Miranda rights and the police proceeded to
question him about the robberies, including the Medkeff-Sands
robberies. Though at first denying any involvement, Alston
eventually admitted to a number of robberies after the police
reminded him of the fingerprint that they had recovered at the
scene. In light of the offer by the police interrogators that
they would recommend to the prosecutor that Alston be charged
with only one count of robbery if he cooperated, Alston admitted
to participating in the Medkeff-Sands robberies, as well as six
other robberies committed during the summer of 1985. Alston was
taken before a Justice of the Peace on the robbery and conspiracy
charges and was committed to Gander Hill prison for pretrial
detention.
Three days later, on August 26, 1985, Alston was
interviewed by a person from the Public Defender's office, who
Alston assumed was an attorney.1 See App. at 227. During the
course of the interview, Alston signed a form letter, addressed
to the warden of the Gander Hill facility:
Dear Sir:
I am presently a detainee in this institution and
I will not speak to any police officer, law enforcement
officers, their agents, or representatives from the
Department of Justice, of any jurisdiction, without a
Public Defender being present at such a meeting.
I further do not wish to be removed from my [cell]
and brought to a meeting with the above-mentioned
officers for the purpose of discussing a waiver of my
constitutional rights in this regard.
Signed /s/Harold S. Alston
Date 8-26-85
App. at 4. The letter was never actually delivered to Gander
Hill's warden, since the established practice at Gander Hill was
that someone from the warden's office would call the Public
Defender's office when officers sought to question a prisoner,
and inquire whether such a form letter had been executed. If a
prisoner wished to speak to the authorities notwithstanding his
prior execution of the invocation of counsel form letter, he
1
. The testimony by an investigator from the Public Defender's
office at the suppression hearing held in the state trial court
suggested that the individual who met with Alston was an
investigator, and not an attorney. See App. at 71-72. The
outcome of this appeal, however, does not turn on the identity or
the status of the individual with whom Alston spoke.
would be asked to sign a form waiving his previous request to
have counsel present during an interrogation. Alston never
signed this second form.
On August 28th, Alston was indicted for the Medkeff-
Sands robberies. On August 29th, he was taken from Gander Hill
to the Wilmington police department for processing on the new
charges stemming from the six other robberies to which he had
confessed on the 23rd and for further questioning. The warden's
office made no inquiry of the Public Defender's office regarding
whether Alston had signed the invocation of counsel form. At the
police station, after the police read Alston his Miranda rights
and he waived them, Alston was questioned for a second time, six
days after his first interrogation on August 23rd. During this
second interrogation, Alston confirmed his prior confessions,
and, after prompting by one interrogator, confessed to another
robbery that he had not mentioned before. It is the legality of
the use of this second confession at his trial that forms the
core of petitioner's appeal.
Due to Alston's perceived lack of candor, the police
informed the prosecutor of the promise made, but declined to
recommend that Alston be charged with one count of robbery. The
grand jury subsequently delivered a superseding indictment
against Alston and a number of other defendants, indicting Alston
on nine counts of first degree robbery and nine counts of second
degree conspiracy.
Before trial, Alston sought to suppress the statements
he gave to the police on the 23rd and the 29th, claiming that
both of his statements were involuntary and, further, that his
second statement was taken in violation of his Sixth Amendment
right to counsel. The trial court denied the suppression motion.
See App. at 117-21. Alston proceeded to trial, where the state
introduced, inter alia, the fingerprint evidence, the
confessions, and the testimony of Medkeff and Sands, both of whom
identified Alston. Alston was found guilty on seven of the nine
robbery counts and on all of the conspiracy counts, including the
Medkeff-Sands robberies.
On direct appeal, the Delaware Supreme Court agreed
with Alston that the statement made during the August 29th
interrogation concerning the Medkeff-Sands robberies was taken in
violation of his Sixth Amendment right to counsel, but ruled that
the error was harmless, since there was substantial evidence
supporting the conviction. See Alston v. State, 554 A.2d 304,
308-09 (Del.), cert. denied, 490 U.S. 1101 (1989). The Court
also found that the statements were made voluntarily, that
Alston's waivers of his Miranda rights were proper, and that
Alston's execution of the form provided to him by the Public
Defender's office and never transmitted to the warden did not
serve to invoke his Miranda right to counsel. See id. at 307-08,
310-11. Finally, the Court reversed one of the conspiracy
convictions relating to the Medkeff-Sands robberies, since the
evidence showed only one agreement. See id. at 312. Alston's
petition for writ of certiorari was denied by the United States
Supreme Court, 490 U.S. 1101 (1989), as was his application for
state post-conviction relief, Alston v. State, 590 A.2d 502 (Del.
1991) (unpublished disposition).
Alston petitioned the district court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, claiming, inter alia,
that his execution of the invocation of counsel form letter was
sufficient to trigger his Miranda right to counsel, thus
rendering inadmissible at trial any statements made during the
August 29th interrogation. The petition was referred to a
magistrate judge, who recommended that the petition be denied.
The district court, after a de novo review of the record, adopted
the magistrate judge's Report and Recommendation and denied the
petition for habeas relief. A motions panel of this Court issued
a certificate of probable cause. See Fed. R. App. P. 22(b).
II.
The matter was properly before the district court, and
this Court has jurisdiction over petitioner's appeal. See 28
U.S.C. §§ 1291, 2253. The claims raised in the petition were
properly exhausted, having been fairly presented to the Delaware
Supreme Court. See Castille v. Peoples, 489 U.S. 346, 351
(1989); Wise v. Fulcomer, 958 F.2d 30, 33 (3d Cir. 1992). In
deciding this appeal, the Court exercises a mixed standard of
review. The district court's legal conclusions are subject to
plenary review, but factual conclusions are reviewed for clear
error. See Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert.
denied, ___ U.S. ___, 112 S. Ct. 2283 (1992). There is a
presumption that historical fact-finding by a state court,
whether trial or appellate, is correct.2 See 28 U.S.C.
§ 2254(d); Miller v. Fenton, 474 U.S. 104, 117 (1985); Sumner v.
Mata, 449 U.S. 539, 545-47 (1981).
2
. As this Court stated recently, there are "four prerequisites
for giving deference to state court findings: 1) a hearing on
the merits of a factual issue, 2) made by a state court of
competent jurisdiction, 3) in a proceeding to which the
petitioner and the state were parties, 4) evidenced by a written
finding, opinion or other reliable and adequate written indicia."
Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991) (citing 28
U.S.C. § 2254(d)), cert. denied, ___ U.S. ___, 112 S. Ct. 1679
(1992). There is no indication in the briefs or the record that
the review by the Delaware Superior Court and Supreme Court did
not satisfy the Reese requirements, and petitioner has not
questioned on appeal the correctness of the state courts'
findings of fact.
III.
Petitioner argues that his execution of the form
provided to him by the Public Defender's office was sufficient to
invoke his right to counsel and to thwart any further police-
initiated questioning, thereby rendering inadmissible the
statements he gave at the August 29th interrogation. Our
analysis of this claim must begin with a review of Miranda and
its progeny.
A.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court examined an individual's Fifth and Fourteenth Amendment
right to be free from compelled self-incrimination in the context
of custodial interrogation, and concluded that certain procedural
safeguards were necessary to "dissipate the compulsion inherent
in custodial interrogation and, in so doing, guard against
abridgement of [a] suspect's Fifth Amendment rights." Moran v.
Burbine, 475 U.S. 412, 425 (1986); see Miranda, 384 U.S. at 468;
see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (incorporating the
Fifth Amendment privilege against compelled self-incrimination
into the Fourteenth Amendment). These safeguards include certain
rights that an accused must be informed of, and must waive,
before interrogation can commence:
He must be warned prior to any questioning that he has
the right to remain silent, that anything he says can
be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires. Opportunity
to exercise these rights must be afforded to him
throughout the interrogation.
Miranda, 384 U.S. at 479. Only if there is a voluntary, knowing,
and intelligent waiver of the rights expressed in the warnings
can police question a suspect without counsel being present and
introduce at trial any statements made during the interrogation.
See id.; Fare v. Michael C., 442 U.S. 707, 724-25 (1979); Johnson
v. Zerbst, 304 U.S. 458, 464 (1938).
In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme
Court added a second layer of prophylaxis to the protections
dictated by Miranda. In Edwards, the defendant stated during the
course of interrogation that he wanted to negotiate a "deal," and
was provided with a phone and the number of the county attorney.
After calling the county attorney, defendant stated that he
wanted a lawyer before making any deal. See id. at 479. All
interrogation ceased and he was taken back to his cell. The
following day, interrogation was resumed without an attorney
being present and notwithstanding the defendant's assertion that
he did not wish to speak. During this second interrogation, the
defendant made incriminating statements, which were eventually
used against him and contributed to his conviction. See id. at
480. In reversing the conviction, the Supreme Court held that
once a suspect invokes his right to counsel, "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." Id. at 484. The
Court further held that once a suspect invokes the right, there
can be no further police-initiated interrogation "until counsel
has been made available to him, unless the [suspect] himself
initiates further communication." Id. at 484-85; see also
Minnick v. Mississippi, 498 U.S. 146, 153 (1990) (holding that
after counsel is requested, there can be no further police-
initiated interrogation without counsel being present). Thus,
once a suspect has asked for the assistance of counsel, "it is
presumed that any subsequent waiver that has come at the
authorities' behest, and not at the suspect's own instigation, is
itself the product of the 'inherently compelling pressures' [of
custodial interrogation] and not the purely voluntary choice of
the suspect." Arizona v. Roberson, 486 U.S. 675, 681 (1988); cf.
Michigan v. Mosley, 423 U.S. 96, 104-06 (1975) (finding no
Miranda violation when the police resumed questioning after the
suspect's invocation of his right to cut off questioning was
"scrupulously honored"). The Edwards protection is not offense-
specific. Rather, a suspect who has requested the presence of
counsel cannot be questioned concerning any crime, not just the
one that put him in custody. See Roberson, 486 U.S. at 683-84.
Further, the Edwards presumption focuses on the suspect's state
of mind, not the police's. "[C]ustodial interrogation must be
conducted pursuant to established procedures, and those
procedures in turn must enable an officer who proposes to
initiate an interrogation to determine whether the suspect has
previously requested counsel." Id. at 687. Thus, officers who
interrogate a suspect after the suspect has invoked his right to
counsel are charged with the knowledge of the prior invocation.
See, e.g., United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir.
1983) (holding that knowledge of request for counsel "is imputed
to all law enforcement officers who subsequently deal with the
suspect").
The remedy for a violation of Miranda or Edwards is
straightforward--any statement given in violation of the rules
established in these cases cannot be introduced into evidence in
the state's case-in-chief. See Miranda, 384 U.S. at 479; cf. New
York v. Quarles, 467 U.S. 649, 655-56 (1984) (recognizing a
"public safety" exception to Miranda); Harris v. New York, 401
U.S. 222, 225-26 (1971) (allowing the use of statements taken in
violation of Miranda for purposes of impeachment).
The notion that custodial interrogations, in and of
themselves, have an inherent coercive effect on an accused is the
essential predicate to the prescription contained in the Miranda-
Edwards line of cases, that counsel be present, if one is
requested, when an interrogation occurs in a custodial setting.
"In essence, Miranda counsel is a buffer against the power of a
state tempted to force incriminating statements from an unwilling
suspect." James J. Tomkovicz, Standards for Invocation and
Waiver of Counsel in Confession Contexts, 71 Iowa L. Rev. 975,
989 (1986); see also Miranda, 384 U.S. at 460 (recognizing that
"the constitutional foundation underlying the privilege [against
compelled self-incrimination] is the respect a government--state
or federal--must accord to the dignity and integrity of its
citizens"). As one commentator has noted, "[t]he [Supreme] Court
presumes that the confluence of interrogation and custody
generate an intolerable degree of pressure upon a criminal
suspect. Thus, the combined impact of interrogation and custody
make[s] counsel's compulsion-dispelling presence--or, at least,
the opportunity to claim that presence--essential." Tomkovicz,
supra, at 991 (footnotes omitted). Providing an accused the
option of having a lawyer present during a custodial
interrogation was the Miranda Court's practical accommodation of
the need to shelter an accused's constitutional right to be free
from compelled self-incrimination, with the public's legitimate
interest in the interrogation of suspected criminals.3 See
Moran, 475 U.S. at 426 ("Admissions of guilt are more than merely
'desirable'; they are essential to society's compelling interest
in finding, convicting, and punishing those who violate the
law.") (citation omitted); Miranda, 384 U.S. at 479-81. It is
Miranda's role in protecting the Fifth Amendment privilege in the
singular context of custodial interrogation that is its "only
3
. In contrast, the Miranda Court could have completely
forbidden custodial interrogation, or could have required that
all such interrogation be conducted with a judge present. Cf.
Davis v. United States, ___ U.S. ___, ___, 114 S. Ct. 2350, 2358
(1994) (Scalia, J., concurring) (suggesting that 18 U.S.C. § 3501
abrogates the Miranda safeguards in federal criminal prosecutions
and requires only a determination of voluntariness); State v.
Scales, ___ N.W.2d ___, ___, 1994 WL 315702, at *5 (Minn. June
30, 1994) (requiring that "all custodial interrogation . . .
shall be electronically recorded where feasible" and holding that
statements taken in violation of the requirement shall be
suppressed if the violation is "substantial"). A complete
prohibition, however, might have cut too broadly, since it is
only compelled self-incrimination, not self-incrimination per se,
that is forbidden by the Fifth Amendment. See Miranda, 384 U.S.
at 478; Tomkovicz, supra, at 989 n.55.
source of legitimacy." Moran, 475 U.S. at 425.4 Because the
presence of both a custodial setting and official interrogation
is required to trigger the Miranda right-to-counsel prophylactic,
absent one or the other, Miranda is not implicated.5 See
Miranda, 384 U.S. at 477-78; United States v. Mesa, 638 F.2d 582,
584-85 (3d Cir. 1980); see also Illinois v. Perkins, 496 U.S.
292, 297 (1990) ("It is the premise of Miranda that the danger of
coercion results from the interaction of custody and official
interrogation.").
4
. As the Supreme Court has repeatedly noted, the Miranda
safeguards are not constitutionally mandated and serve only to
protect the privilege against compelled self-incrimination in the
context of custodial interrogation. See, e.g., Connecticut v.
Barrett, 479 U.S. 523, 528 (1987); Moran, 475 U.S. at 424-25; New
York v. Quarles, 467 U.S. 649, 654 (1984); Michigan v. Tucker,
417 U.S. 433, 444 (1974); see also Giuffre v. Bissell, No. 93-
5541, slip op. at 26 (3d Cir. August 4, 1994) (recognizing that
the Miranda right to counsel is "a procedural safeguard, and not
a substantive right").
5
. Hence, the focus in much of the Court's Miranda jurisprudence
on the legal contours of "custody," see, e.g., Stansbury v.
California, ___ U.S. ___, ___, 114 S. Ct. 1526, 1528-29 (1994)
(per curiam); Berkemer v. McCarty, 468 U.S. 420, 441-42 (1984);
Orozco v. Texas, 394 U.S. 324, 325-26 (1969), and
"interrogation," see, e.g., Arizona v. Mauro, 481 U.S. 520, 526
(1987); Estelle v. Smith, 451 U.S. 454, 468-69 (1981); Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980), and the requirement
that both be present for the Miranda protections to attach.
B.
In the instant case, the magistrate judge found, and
the district court agreed, that petitioner's execution of the
invocation form was insufficient to trigger his Miranda right to
counsel. The magistrate found that the attempt to invoke the
right to counsel was made outside of the context of custodial
interrogation, and was thus ineffective. Petitioner argues that
this case satisfies both prongs of Miranda, pointing out that he
was already in custody, he was a suspect in a number of
robberies, and he had already been interrogated at the time that
he made his request for counsel. All of these circumstances
taken together, concludes petitioner, created the "atmosphere of
coercion," Br. at 18, that Miranda and progeny seek to protect
against, and mandates a finding that his invocation of his right
to counsel was proper. We disagree.
As evidenced by the Supreme Court's repeated rehearsal
of the issue, the term "custodial interrogation" defies easy
definition. We have recognized that such a determination
requires individualized analysis on a case-by-case basis. See
United States v. Mesa, 638 F.2d 582, 584 (3d Cir. 1980).
Assuming, arguendo, that petitioner was in custody for purposes
of Miranda analysis,6 we disagree that at the time petitioner
6
. When he signed the request for counsel form on August 26th,
Alston was obviously in custody in the physical sense, given that
he was being held in a prison. However, "[w]hile Miranda may
apply to one who is in custody for an offense unrelated to the
interrogation, incarceration does not ipso facto render an
interrogation custodial." Leviston v. Black, 843 F.2d 302, 304
(8th Cir.) (citations omitted), cert. denied, 488 U.S. 865
(1988); see, e.g., Cervantes v. Walker, 589 F.2d 424, 428-29 (9th
requested counsel he was being interrogated, or that
interrogation was imminent. Petitioner was questioned on August
23rd and again on August 29th. There is no evidence in the
record to suggest that he had been questioned on the 26th, the
date on which he made his request for counsel, or that there was
a continuous interrogation during the period from August 23rd to
August 29th. His putative invocation of his right to counsel on
August 26th was made while he was sitting in his jail cell
speaking with a representative of the Public Defender's office,
far removed from the strictures of custodial interrogation feared
by the Miranda Court. See id. at 590 n.1 (Adams, J., concurring)
("In Innis the Court indicated that "interrogation," as
conceptualized in the Miranda opinion, must reflect a measure of
compulsion above and beyond that inherent in custody itself.").
Absent the "interaction of custody and official interrogation,"
Perkins, 496 U.S. at 297, the petitioner's Miranda right to
counsel had simply not attached when petitioner signed the
invocation form in his cell.
(..continued)
Cir. 1978) (finding that inmate questioned during a search of his
cell was not in custody because there was no greater restraint on
his freedom than usual). Though Alston was in custody as a
suspect in the Medkeff-Sands robberies, he was not necessarily
"in custody" for Miranda purposes as to interrogation on the
other robberies. Since we decide Alston's appeal on other
grounds, we need not reach the issue of whether he was in custody
for Miranda purposes when he requested counsel.
C.
In essence, Alston asks this Court to adopt, as an
extension of the reach of Miranda, a rule allowing a suspect to
invoke the right to counsel in cases where the suspect is in
custody, has already been interrogated, and may be reinterrogated
at some point in the future. We decline the invitation. As did
the district judge, we find the Supreme Court's opinion in McNeil
v. Wisconsin, 501 U.S. 171 (1991), to have presaged the result in
this case. In McNeil, the petitioner was arrested on a charge of
armed robbery. After a bail hearing on the armed robbery charge,
at which he was represented by an attorney, he was repeatedly
questioned by police officers concerning a different crime, and
he eventually made an inculpatory statement. See 501 U.S. at
173-74. After his conviction at trial, at which his statement
was used against him, petitioner filed for a writ of habeas
corpus, arguing that his appearance at the bail hearing,
accompanied by an attorney, was sufficient to invoke his Miranda
right to counsel, thus invalidating the police-initiated
interrogation under the operation of Edwards. See id. at 174-75.
After carefully distinguishing the differing objectives of the
right to counsel under Miranda and the Sixth Amendment, the Court
rejected the argument that the assertion of the Sixth Amendment
right to counsel was an explicit or implicit assertion of the
Miranda right to counsel, holding that "[t]he rule of [Edwards]
. . . requires, at a minimum, some statement that can reasonably
be construed to be expression of a desire for the assistance of
an attorney in dealing with custodial interrogation by the
police." Id. at 178. The Court explicitly rejected the "bright-
line" rule proposed by McNeil--"no police-initiated questioning
of any person in custody who has requested counsel to assist him
in defense or interrogation"--which was similar to the one
advocated by the instant petitioner. See id. at 181.
Of particular interest to the case sub judice is the
majority's reply to the dissent's prediction that the decision
would be circumvented by the explicit invocation of the Miranda
right to counsel at preliminary hearings. See id. at 184
(Stevens, J., dissenting). The majority noted that premature
invocation of the Miranda right to counsel would be
impermissible:
We have in fact never held that a person can invoke his
Miranda rights anticipatorily, in a context other than
"custodial interrogation"--which a preliminary hearing
will not always, or even usually, involve. If the
Miranda right to counsel can be invoked at a
preliminary hearing, it could be argued, there is no
logical reason why it could not be invoked by a letter
prior to arrest, or indeed even prior to identification
as a suspect. Most rights must be asserted when the
government seeks to take the action they protect
against. The fact that we have allowed the Miranda
right to counsel, once asserted, to be effective with
respect to future custodial interrogation does not
necessarily mean that we will allow it to be asserted
initially outside the context of custodial
interrogation, with similar future effect.
Id. at 182 n.3 (citations omitted) (emphasis added). Though this
passage in McNeil is essentially dicta, being a response to a
hypothetical posed by the dissent, we must consider it with
deference, given the High Court's paramount position in our
"three-tier system of federal courts," Casey v. Planned
Parenthood, 14 F.3d 848, 857 (3d Cir. 1994), and its limited
docket. See Town Sound & Custom Tops, Inc. v. Chrysler Motors
Corp., 959 F.2d 468, 495 n.41 (3d Cir.) (in banc), cert. denied,
___ U.S. ___, 113 S. Ct. 196 (1992); accord Doughty v.
Underwriters at Lloyd's, London, 6 F.3d 856, 861 & n.3 (1st Cir.
1993); Hendricks County Rural Elec. Membership Corp. v. N.L.R.B.,
627 F.2d 766, 768 n.1 (7th Cir. 1980) ("A dictum in a Supreme
Court opinion may be brushed aside by the Supreme Court as dictum
when the exact question is later presented, but it cannot be
treated lightly by inferior federal courts until disavowed by the
Supreme Court.") (citing 1B Moore's Federal Practice ¶ 0.402, at
112 & n.3), rev'd on other grounds, 454 U.S. 170 (1981). The
footnote strongly supports the proposition that, to be effective,
a request for Miranda counsel must be made within "the context of
custodial interrogation" and no sooner. See United States v.
Wright, 962 F.2d 953, 955 (9th Cir. 1992); United States v.
Barnett, 814 F. Supp. 1449, 1454 (D. Alaska 1992).
The antipathy expressed in McNeil towards the
anticipatory invocation of the Miranda rights is consistent with
Miranda's underlying principles. The Miranda right to counsel is
a prophylactic rule that does not operate independent from the
danger it seeks to protect against--"the compelling atmosphere
inherent in the process of in-custody interrogation"--and the
effect that danger can have on a suspect's privilege to avoid
compelled self-incrimination. Miranda, 384 U.S. at 478. To
allow an individual to interpose Miranda in a situation outside
the custodial interrogation context would represent an
unwarranted extension of Miranda's procedural safeguards, an
extension best left to the discretion of the Supreme Court, which
devised the Miranda safeguards in the first place and which has
quite recently expressed disinterest in expanding them. See,
e.g., Davis v. United States, ___ U.S. ___, ___, 114 S. Ct. 2350,
2355 (1994) (declining "to extend Edwards and require law
enforcement officers to cease questioning immediately upon the
making of an ambiguous or equivocal reference to an attorney");
McNeil, 501 U.S. at 182; Quarles, 467 U.S. at 658 ("At least in
part in order to preserve its clarity, we have over the years
refused to sanction attempts to expand our Miranda holding.");
see also Barnett, 814 F. Supp. at 1454 (assuming that footnote 3
in McNeil "accurately predicts that the . . . Supreme Court will
hold that an accused cannot invoke his Fifth Amendment right to
counsel until he is taken into custody, and prior to
interrogation, warned of those rights"). As the Supreme Court
recognized in Innis, "[i]t is clear . . . that the special
procedural safeguards outlined in Miranda are required not where
a suspect is simply taken into custody, but rather where a
suspect in custody is subjected to interrogation." 446 U.S. at
300.7
7
. Petitioner points to language in Miranda itself that, read in
isolation, would seem to allow invocation of the right to counsel
in the manner he proposes:
If, however, [the defendant] indicates in any manner
and at any stage of the process that he wishes to
consult with an attorney before speaking there can be
no questioning.
384 U.S. at 444-45. Read in context, however, it is clear that
the "process" referred to by the Court is the actual process of
custodial interrogation.
The McNeil footnote also reflects the general
proposition, consistent with recent Supreme Court jurisprudence,8
that the rights guaranteed by the Constitution of the United
States are primarily negative in character, standing guard as
vigilant sentinels at the perimeter of permissible state conduct.
See Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.
1983), cert. denied, 465 U.S. 1049 (1984); David P. Currie,
Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev.
864 (1986). But see Susan Bandes, The Negative Constitution: A
Critique, 88 Mich. L. Rev. 2271, 2273-78 & n.20 (1990)
(critiquing the prevailing view of the Constitution as "a charter
of negative liberties" and collecting scholarly sources espousing
a similar view). It is only at the time that the state seeks to
invade this citadel of individual liberty that these
constitutional guarantees can be summoned to battle. This
position has strong textual support in the Bill of Rights. The
right of free speech, the right to be free from unreasonable
searches and seizures, the right to be free from double jeopardy,
the right to due process under the Fifth Amendment, all of these
are framed as prohibitions on state conduct, rather than as
8
. In the context of the Due Process Clause, the negative nature
of constitutional rights is viewed as imposing on the state no
positive obligation to act absent some special circumstance such
as custody. See Collins v. City of Harker Heights, ___ U.S. ___,
___, 112 S. Ct. 1061, 1069 (1992); DeShaney v. Winnebago County
Dep't of Social Servs., 489 U.S. 189, 195-200 (1989); Harris v.
McRae, 448 U.S. 297, 317-18 (1980); D.R. by L.R. v. Middle Bucks
Area Vocational Technical Sch., 972 F.2d 1364, 1368-69 (3d Cir.
1992) (in banc), cert. denied, ___ U.S. ___, 113 S. Ct. 1045
(1993).
commandments for state action. Similarly framed is the
prohibition against compelled self-incrimination that is involved
in this case. U.S. Const. amend. V ("nor shall [any person] be
compelled in any criminal case to be a witness against
himself").9 To require that the Government first act to compel
an individual to incriminate herself before that individual can
assert her right to remain silent is merely to recognize that the
privilege against compelled self-incrimination acts as a shield
against state action rather than as a sword, and that the shield
may only be interposed when state action actually threatens.10
9
. In fact, the entire Fifth Amendment is written in similar
vein:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.
U.S. Const. amend. V.
10
. That Miranda imposes an affirmative obligation on
interrogators to inform a suspect of his rights, indeed, to
provide the suspect a lawyer if one cannot otherwise be afforded,
does not change the basic negative nature of the Miranda
protections, because the true protection of Miranda, the
suppression of statements given without a valid waiver by the
suspect of her Miranda rights, only arises if the state chooses
to question a suspect without providing the Miranda warnings and
attempts to introduce those statements in evidence. See Miranda,
384 U.S. at 479. Until the attempt is made, the Miranda right,
and the corresponding Fifth Amendment right it prophylactically
protects, essentially lies dormant. If the state never
interrogates a suspect, Miranda is not implicated.
Our decision also finds support in the Ninth Circuit's
opinion in United States v. Wright, 962 F.2d 953 (9th Cir. 1992).
Wright presented a real-life example of the hypothetical posited
by Justice Stevens in his McNeil dissent, the anticipatory
invocation of the Miranda right to counsel. Wright was arrested
and pled guilty to armed robbery. At the plea hearing, his
attorney stated that she wanted to be present at any interviews
with her client. See id. at 954. Shortly thereafter, Wright was
interrogated, without counsel being present, as to an unrelated
bank robbery. He confessed, a confession that he moved to
suppress. When that was unsuccessful, he entered a conditional
guilty plea and appealed on the basis that his counsel's
statement at the hearing triggered the Edwards presumption
concerning further police-initiated questioning. See id.
The Ninth Circuit rejected the claim, holding that a
request by counsel, during a plea hearing, to be present at any
further "interviews" with a suspect did not trigger Edwards. See
id. at 956. As explained by the court, McNeil compelled this
conclusion:
McNeil strongly suggests that Miranda rights may not be
invoked in advance outside the custodial context.
Wright's request through his attorney would do just
that if it were more broadly effective than to assure
counsel's presence at interviews having to do with the
robbery. The Court has never held that Miranda rights
may be invoked anticipatorily outside the context of
custodial interrogation; we see no reason, apart from
those already rejected in McNeil, to do so here.
Id. at 955. Though arguably distinguishable, since Wright was at
a plea hearing, not "in custody," when he made his request for
the presence of counsel at future interviews, the opinion is an
affirmation of the principle expressed in footnote three of
McNeil that there must be both custody and interrogation before
the right to counsel can be invoked.
We recognize that some courts, post-McNeil, have found
a proper invocation of the Miranda right to counsel when a
suspect has requested counsel prior to interrogation or to the
reading of the Miranda rights. In United States v. Kelsey, 951
F.2d 1196 (10th Cir. 1991), petitioner Joseph Kelsey arrived at
his home late one night to find eighteen members of a police
narcotics task force conducting a search for contraband. See id.
at 1198. He was searched and arrested before entering the house,
and was placed on a couch alongside three others who had been
arrested during the raid. Kelsey asked to see his lawyer three
or four times, but the police only responded that "if they
'allow[ed] him to see [his] lawyer now, then they would not be
able to ask [him] any further questions and would have to take
[him] to jail.' . . . The police also told [Kelsey] that 'if [he]
was to cooperate and talk with the officers, then they'd take it
easy on [him] . . . .'" Id. (alteration in original). Kelsey
was not questioned at this point, nor was he read his Miranda
rights. He was later questioned in his home and made
incriminating statements during the interrogation. See id.
The Tenth Circuit held that the request by Kelsey for
his lawyer was sufficient to invoke the protections of Edwards,
even thought the request was made before questioning or the
reading of Miranda rights. See id. at 1198-99. Mindful of the
requirement that there be "some statement that can reasonably be
construed to be expression of a desire for the assistance of an
attorney in dealing with custodial interrogation by the police,"
McNeil, 501 U.S. at 178 (emphasis omitted), the Court held that
Kelsey's request for counsel after being arrested, when it was
"clear from the exchange between Kelsey and the police . . . that
the police intended to question Kelsey at some point at his home,
and that the police understood Kelsey to be invoking his right to
counsel during questioning," Kelsey, 951 F.2d at 1199, was
sufficient to trigger Edwards. The Court rejected the
Government's argument that Rhode Island v. Innis required that
there be questioning before the invocation of the right to
counsel, finding that the fact that Kelsey asked for an attorney
"before the police were required to inform him of that right
[was] irrelevant." Id. at 1199.
In State v. Torres, 412 S.E.2d 20 (N.C. 1992), the
North Carolina Supreme Court examined a similar issue. Georgia
Torres was a battered spouse who one night, in the midst of an
altercation with her intoxicated husband, shot him to death.
Though not placed under arrest, she was transported by a police
officer to the sheriff's department, and was detained in a
conference room by a deputy from 7 P.M. to 10 P.M., pending
questioning concerning the shooting of her husband. At around 10
P.M., she was taken into the sheriff's office, and the sheriff
informed her that she would be shortly questioned by two other
police officers. See id. at 24. At two points, while
sequestered in the conference room and while meeting with the
sheriff, Torres asked if she needed an attorney, and was told
both times that she did not. See id. at 23. At 10:35, she was
given her Miranda warnings, which she waived, was interrogated,
and gave an incriminating statement. See id. at 25. She was
thereafter convicted of murder.
On appeal, Torres argued that her interrogation
violated Edwards, since she had made a request for counsel before
the police initiated her interrogation. The Court accepted her
argument, finding that Edwards had been violated even though she
was not being questioned at the time she requested an attorney:
. . . [T]he State argues that defendant could not
have invoked her right to counsel because she was not
being questioned at the time she inquired about an
attorney.
. . . If defendant "at any stage of the process"
indicates her desire to consult with counsel, all
questioning must cease. . . . [A]lthough an individual
cannot waive her right to counsel prior to receiving
Miranda warnings, a suspect in custody can certainly
assert her right to have counsel present during her
impending interrogation prior to Miranda warnings and
the actual onset of questioning.
Id. at 25 (citations omitted). The Court distinguished footnote
three in the McNeil opinion by noting that "[t]he examples of
'anticipatory invocation' cited by the Court in that . . .
footnote . . . make clear that the Court had in mind situations
in which a person was not in custody at the time of her
invocation." Id. Thus, for the Torres court, it was sufficient
for Miranda and Edwards purposes that the suspect was in custody
and awaiting interrogation when she invoked her right to counsel.
See id. at 26 ("It would make little sense to require a defendant
already in custody to wait until the onset of questioning or the
recitation of her Miranda rights before being permitted to invoke
her right to counsel.").
The decisions in Kelsey and Torres are distinguishable
from our decision in this case. The suspects in both of those
cases, though not being interrogated when they requested counsel,
were faced with "impending interrogation." Torres, 412 S.E.2d at
26 (emphasis added); Kelsey, 951 F.2d at 1199. Kelsey had just
been arrested in his home, and the dialogue between him and his
captors indicated he would be interrogated in his home. See id.
Torres had been taken to the police stationhouse immediately
after shooting and killing her husband, and she was sitting in a
conference room awaiting imminent questioning. See 412 S.E.2d at
25-26. In no manner can Alston's situation be analogized to
Kelsey and Torres. In fact, when Alston requested counsel, he
was in his cell, with no state official present, speaking to a
representative of the Public Defender's office, having already
been interrogated three days earlier, with no further
interrogation pending, and without any indication that he was to
be reinterrogated. Whatever the merits of the position taken in
those cases, i.e., an accused may invoke the right to counsel
anticipatorily when an interrogation is imminent, the instant
case falls outside the ambit of their reasoning. Given that
Alston was not being interrogated when he signed the invocation
form, and that no interrogation was impending or imminent, we
hold that Alston was not within the "context of custodial
interrogation" when he signed the invocation form, and therefore
that the prophylactic rules of Miranda and Edwards did not render
inadmissible the statement taken on August 29th.11
D.
Even if we were to conclude that Alston could invoke
his Miranda right to counsel when an interrogation was impending
or imminent, we cannot conclude that the method used by Alston,
i.e., advising the warden of his decision, was sufficient to
trigger the protections of Miranda-Edwards and of Arizona v.
Roberson, 486 U.S. 675 (1988). In Roberson, the Supreme Court
rejected the contention that an interrogator's lack of knowledge
concerning a previous invocation of the Miranda right to counsel
vitiated the Edwards prophylactic:
In addition to the fact that Edwards focuses on the
state of mind of the suspect and not of the police,
custodial interrogation must be conducted pursuant to
established procedures, and those procedures in turn
must enable an officer who proposes to initiate an
interrogation to determine whether the suspect has
previously requested counsel. . . . [W]hether the same
or different law enforcement authorities are involved
in the second investigation, the same need to determine
whether the suspect has requested counsel exists. The
police department's failure to honor that request
cannot be justified by the lack of diligence of a
particular officer.
11
. Additionally, we note that the extension of Miranda and
Edwards implicitly requested by petitioner, i.e., allowing him to
invoke the right to counsel outside of the context of custodial
interrogation, would diminish the "bright-line" nature of the
Supreme Court's Miranda jurisprudence, often cited by the Court
as one of qualities of that body of law. See Jackson, 475 U.S.
at 634; Smith v. Illinois, 469 U.S. 91, 98 (1984); Quarles, 467
U.S. at 658; Fare, 442 U.S. at 718.
Roberson, 486 U.S. at 687-88 (footnote omitted). Applying this
language on direct appeal, the Delaware Supreme Court held that
the investigating officers who interrogated Alston on August 29th
could not be charged with "constructive knowledge" of an
invocation contained in "records which are merely accessible to
other state agents who function at the custodial level." Alston,
554 A.2d at 310. The court therefore concluded that the
interrogation of August 19th did not run afoul of Roberson. We
agree, though on different grounds. While the holding of the
Delaware Supreme Court is based on a determination that the
warden of Gander Hill prison never had possession, and thus never
had knowledge, of Alston's pro forma invocation, see id., our
decision turns on the inapplicability of Roberson to a non-
investigating state official such as a warden.12
12
. Because the Delaware Supreme Court rested its decision on
this point, i.e., that the warden never had knowledge because he
had no possession, we feel compelled to address it. We believe
that basing the decision in this case on these grounds goes too
far. If the state puts into place a record-keeping system that,
as an essential element, contemplates that records will be
maintained by a third-party, e.g., the Public Defender's office,
it would be inequitable to allow the state official charged with
administering the system to disclaim at least constructive
knowledge of the information contained in those records. We
therefore do not find the warden's lack of actual possession of
Alston's letter to be dispositive.
We also note in passing that petitioner neither here nor
below argued that the state should be estopped from questioning
the validity of his pro forma invocation, due to the warden's
establishment of and participation in the procedure employed in
Gander Hill. While we do not reach the issue, we do not mean to
diminish any due process considerations that may accompany
official conduct that actively misleads an accused in the
exercise of her Miranda rights. Cf. Tukes v. Dugger, 911 F.2d
508, 516 n.11 (11th Cir. 1990) (rejecting, in dicta, the
contention that the state can disregard a suspect's invocation of
the right to counsel that is made after he has been given his
The Supreme Court's opinion in Roberson focused on
multiple interrogations concerning different crimes, principally
holding that the Miranda right to counsel was not offense-
specific. See 486 U.S. at 682-85. As a corollary to that
holding, the Court directed that "custodial interrogation must be
conducted pursuant to established procedures, and those
procedures in turn must enable an officer who proposes to
initiate an interrogation to determine whether the suspect has
previously requested counsel." Id. at 687 (emphasis added).
Later interrogators are thus charged with the knowledge of what
occurred during prior interrogations, not what occurred during
other time periods, i.e., while the suspect was sitting in his
cell speaking with a representative from the Public Defender's
office. The practical implication of this conclusion is that
noninvestigatory officials charged with the mere custody or care
of a suspect, e.g., jailers, doctors, vocational instructors,
should not be considered state agents capable of accepting a
suspect's invocation of his Miranda rights.13 Any other
interpretation of Roberson would not provide serviceable guidance
to law enforcement officials seeking to administer the Miranda-
Edwards protections, since, in effect, they would become
absolutely liable for any statement made by an incarcerated
(..continued)
Miranda warnings, even if the suspect is not yet in custody),
cert. denied sub nom. Singletary v. Tukes, ___ U.S. ___, 112 S.
Ct. 273 (1991).
13
. With the caveat that someone acting as an investigatory
official's agent in conducting an interrogation would likely
assume the status of her principal.
suspect to his jailer.14 This conclusion is consistent with our
rejection supra of anticipatory invocations. If Alston cannot
assert his Miranda rights anticipatorily, it would make little
sense to permit him to assert them to the warden, a
noninvestigatory state official.
Petitioner cites to no case law, other than Roberson
itself, supporting his contention that the knowledge of his
putative invocation on the 26th must be imputed to the officers
who interrogated him on the 29th, and the Court's research has
likewise failed to unearth any such support. On the contrary,
the courts that have applied Roberson were dealing with
defendants who were reinterrogated notwithstanding earlier
requests for counsel that were made to law enforcement officers.
See, e.g., United States v. Lucas, 963 F.2d 243, 244-45 (9th Cir.
1992); United States v. Lenfesty, 923 F.2d 1293, 1297 (8th Cir.
1991); Balfour v. State, 598 So. 2d 731, 736, 745-46 (Miss.
1992); State v. Schuster, 502 N.W.2d 565, 570 (S.D. 1993); cf.
People v. Young, 607 N.E.2d 123, 126-28 (Ill. 1992) (refusing to
impute knowledge from a Wisconsin law enforcement agency to an
Illinois law enforcement agency). We conclude that knowledge of
14
. Petitioner's focus on Roberson's admonition that Edwards
"focuses on the state of mind of the suspect," 486 U.S. at 687,
does not change the result. In Edwards, there was no question
that there had been a proper invocation of the right to counsel.
See Edwards, 451 U.S. at 479 (suspect stated during custodial
interrogation that "I want an attorney before making a deal").
Absent such a proper invocation, the suspect's state of mind is
essentially irrelevant, because a suspect cannot "believe" a
right into existence. Since Alston's initial invocation was
insufficient, the fact that he believed he had invoked his right
to counsel is beside the point.
the letter "sent" by Alston to the warden of the Gander Hill
facility cannot be imputed to the police officers who
interrogated Alston on the 29th, and that the interrogation was
therefore not violative of Miranda, Edwards, or Roberson.15
* * *
We decline to extend the reach of Miranda-Edwards to
encompass a suspect sitting in his cell, free of any
interrogation, impending or otherwise. As the Supreme Court
stated in rejecting the McNeil petitioner's proposal to expand
Miranda, "[i]f a suspect does not wish to communicate with the
police except through an attorney, he can simply tell them that
when they give him the Miranda warnings." McNeil, 501 U.S. at
180. We add no more.
15
. Alston's argument that the absence of a waiver of counsel
form on file in the warden's office is notice of an invocation of
the right to counsel is also without merit. The presence or
absence of forms in a custodial state agent's files cannot
suffice for the imputation of knowledge to investigatory
officials.
IV.
Petitioner also argues that the magistrate and district
judges erred in concluding that the admission of the statements
taken in violation of his Sixth Amendment right to counsel was
harmless error. Before the Delaware state courts, and before
this Court, the respondents have acknowledged that the statements
of August 29th concerning the Medkeff-Sands robberies were
impermissibly taken, since Alston's Sixth Amendment right to
counsel had attached once the indictment of August 28th was
returned, and he was interrogated without his lawyer being
present. See Michigan v. Jackson, 475 U.S. 625, 636 (1986)
(applying the Edwards presumption concerning police-initiated
interrogations to the Sixth Amendment right to counsel); United
States v. Gouveia, 467 U.S. 180, 198 (1984); Massiah v. United
States, 377 U.S. 201, 206 (1964).16 The state courts and the
district court found that this error, however, was harmless,
since there was sufficient evidence introduced during trial to
convict Alston regardless. We agree.
In Deputy v. Taylor, 19 F.3d 1485 (3d Cir.), cert.
denied, ___ U.S. ___, 114 S. Ct. 2730 (1994), we recently held
that admission of a statement taken in violation of the Sixth
Amendment right to counsel is "trial type error," requiring on
collateral review application of the harmless error standard
16
. Under Maine v. Moulton, 474 U.S. 159, 180 & n.16 (1985),
interrogation concerning the other crimes was permissible,
notwithstanding the attachment of the Sixth Amendment right to
counsel as to the Medkeff-Sands robberies. This point is not
contested on appeal.
utilized in Brecht v. Abrahamson, ___ U.S. ___, 113 S. Ct. 1710
(1993). See Deputy, 19 F.3d at 1495-96; see also Arizona v.
Fulminante, 499 U.S. 279, 307-08 (1991) (opinion of Rehnquist,
C.J., for the Court) (characterizing a "confession obtained in
violation of Massiah" as a "trial error"). Under Brecht, "where
a constitutional error is a 'trial type error' which implicates
the weight and effect of evidence presented to the jury, we must
ask whether the error had 'substantial and injurious effect or
influence in determining the jury's verdict.'" Deputy, 19 F.3d
at 1496 (quoting Brecht, 113 S. Ct. at 1722). The analysis
"'must take account of what the error meant to [the jury], not
singled out and standing alone, but in relation to all else that
happened.'" Brecht, 113 S. Ct. at 1724 (Stevens, J., concurring)
(quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)).
Only if the error was not harmless can the writ of habeas corpus
issue.
The evidence at trial concerning the Medkeff-Sands
robberies was substantial. Both victims identified Alston as the
perpetrator, Alston's fingerprint was recovered at the scene, and
Alston confessed to the crime during the interrogation of August
23rd. The evidence introduced concerning the August 29th
confession, consisting of the testimony of one of the
interrogators as well as a transcript of the confession, which
had been recorded, was in essence cumulative. Viewed in relation
to the other evidence in the case as to the Medkeff-Sands
robberies, the Court finds that the August 29th statements did
not have a "substantial and injurious effect" on the jury's
verdict, and their introduction into evidence was therefore
harmless error.17
17
. The Delaware Supreme Court applied the higher standard
announced in Chapman v. California, 386 U.S. 18, 23-24 (1967),
finding that the error was "harmless beyond a reasonable doubt."
Alston, 554 A.2d at 309. Were the Court required to apply this
standard, we would reach the same conclusion.
V.
Petitioner's final point of appeal is that the
interrogation of August 29th somehow denied him "fundamental
fairness," and was therefore violative of the Fourteenth
Amendment's Due Process clause. In support of this argument,
petitioner states that he "could not resist the pressures of
custodial interrogation," and argues that this is the only
possible conclusion "because, otherwise, it is incomprehensible
why a 28 year [old] literate man with three prior felonies would
so readily incriminate himself." Pet. Br. at 32. Petitioner
apparently claims that his waiver of his Miranda rights at the
beginning of the August 29th interrogation was somehow faulty,
and he was therefore deprived of his right to counsel. See
Miranda, 384 U.S. at 444 (providing that the Miranda safeguards
may be waived, "provided the waiver is made voluntarily,
knowingly and intelligently"); Ahmad v. Redman, 782 F.2d 409,
412-13 (3d Cir.), cert. denied, 479 U.S. 831 (1986). The
respondents argue that this issue was initially raised in
petitioner's objections to the magistrate's report, was therefore
not properly before the district court, and ipso facto is not
properly before this Court. Whatever merit respondent's position
may have, the record in this case indicates that the magistrate
judge addressed petitioner's Fourteenth Amendment claim, see
Report & Recommendation at 12, and we will do likewise.
"[T]he voluntariness of a defendant's waiver of Miranda
rights is a mixed question of law and fact, subject to plenary
review by federal habeas courts." Ahmad, 782 F.2d at 413.
Though we do not treat with deference the legal conclusions
reached by the state court, the underlying factual findings, upon
which the court based its conclusions, if fairly supported by the
record, are entitled to the statutory presumption of correctness
provided by 28 U.S.C. 2254(d). See McAleese v. Mazurkiewicz, 1
F.3d 159, 166 (3d Cir.), cert. denied, ___ U.S. ___, 114 S. Ct.
645 (1993); Reese v. Fulcomer, 946 F.2d 247, 254 (3d Cir. 1991),
cert. denied, ___ U.S. ___, 112 S. Ct. 1679 (1992). In assessing
the validity of the waiver, we must determine whether it was
voluntary, i.e., free of coercion or deception, and whether it
was knowing. "Only if the 'totality of the circumstances
surrounding the interrogation' reveal both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived." Moran, 475
U.S. at 421 (quoting Fare v. Michael C., 442 U.S. at 725); see
United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989),
cert. denied, 494 U.S. 1017 (1990).
The Delaware courts found that Alston understood his
Miranda rights when he signed the waiver form proffered to him at
the beginning of the August 29th interrogation. See App. at 118,
254. This finding has a basis in the record, given defendant's
execution of the waiver form and the testimony of the
interrogating officers concerning their recitation of the rights
and Alston's acknowledgement that he understood them. Cf.
Collins v. Brierly, 492 F.2d 735, 739 (3d Cir.) (in banc) ("It
may be assumed that [a written waiver's] main purpose is
evidentiary, to establish with a minimum of difficulty and a
maximum of certainty that the police gave the warnings and that
the suspect had agreed--preliminarily--to answer questions."),
cert. denied, 419 U.S. 877 (1974). There is also no contention
that Alston did not understand his Miranda rights when he waived
them during the interrogation of August 23rd. Given the
presumption of correctness, we are satisfied that Alston
understood his Miranda rights, and that he did knowingly waive
them at the August 29th interrogation.
As to the question of voluntariness, the only
indication in the record of any coercion on the part of the
interrogators is the offer to Alston to make a plea
recommendation to the prosecutors if Alston cooperated fully in
the interrogation. "That a law enforcement officer promises
something to a person suspected of a crime in exchange for the
person's speaking about the crime does not automatically render
inadmissible any statement obtained as a result of that promise."
United States v. Walton, 10 F.3d 1024, 1028 (3d Cir. 1993); see
Miller v. Fenton, 796 F.2d 598, 604-08 (3d Cir.), cert. denied
sub nom. Miller v. Neubert, 479 U.S. 989 (1986). The question of
voluntariness ultimately turns on whether the totality of the
circumstances indicates that the will of the suspect was
overborne by government coercion. See Colorado v. Connelly, 479
U.S. 157, 169-70 (1986); Moran, 475 U.S. at 421; Walton, 10 F.3d
at 1028. In making its assessment, the Court must evaluate the
events that occurred, as well as the suspect's background and
experience, including prior dealings with the criminal justice
system. See Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)
(plurality opinion); United States v. Cruz Jimenez, 894 F.2d 1,
7-8 (1st Cir. 1990); Velasquez, 885 F.2d at 1086.
The Delaware Supreme Court made the following findings
of fact concerning Alston's background:
Alston was 28 years old at the time of his arrest and
had previously been convicted of three felonies.
Alston had completed the tenth grade and was able to
read and write. At the time his statements were made
he was alert and did not appear to be under the
influence of alcohol or drugs. The interviews were
during the day, and each interview lasted approximately
one to one and one-half hours. Although in custody,
Alston was not handcuffed during either session.
Alston, 554 A.2d at 307. We find no reason, and Alston makes no
claim, to disturb these findings. See 28 U.S.C. § 2254(d);
Reese, 946 F.2d at 254.
As to the promise, the investigators promised Alston
during the interrogation of August 23rd that they would recommend
to the prosecutor that Alston be allowed to plead to one count of
first degree robbery, a promise conditioned on Alston's full
cooperation. The promise was made with the caveat that the
recommendation was in no way binding on the prosecutor. App. at
41-42, 54-55. During the course of the first interrogation,
Alston did not mention a robbery that the police suspected him
in, a robbery to which Alston confessed during the second
interrogation after the police prompted him. Due to this failure
to cooperate, as well as the police's strong belief that Alston
had been involved in other crimes as to which he did not confess
at either interrogation, the police informed the prosecutor of
the proposal made to Alston, but did not make the recommendation.
App. at 102-03. As already noted, Alston was then indicted on
nine counts of first degree robbery and nine counts of second
degree conspiracy.
In light of Alston's age, literacy, and prior
experience with the criminal justice system, as well as the
limited nature of the promise made by the investigators, a
promise to make a non-binding recommendation to the prosecutor,
the Court finds that Alston's written waiver of his Miranda
rights on August 29th was not coerced. Alston's three prior
convictions indicate that he was not "an 'uninitiated novice,'
susceptible to coercive pressure or threats by law enforcement
officers." Cruz Jimenez, 894 F.2d at 8. If anything, his
dealings with the criminal justice system would have allowed him
to fully comprehend the serious situation in which he found
himself, as well as the nature of the circumscribed promise made
to him. Faced with substantial charges, implicated in the
Medkeff-Sands robberies by fingerprint evidence, and incriminated
by his confession of August 23rd, a confession that he does not
challenge, Alston's decision on August 29th to waive his Miranda
rights and cooperate with the authorities was a reasonable one,
and there is nothing in the record to indicate that the promise
made coerced him into waiving his rights.
As Chief Justice Burger noted in his concurrence in
Edwards, the Supreme Court "consistently has 'rejected any
paternalistic rule protecting a defendant from his intelligent
and voluntary decisions about his own criminal case.'" Edwards,
451 U.S. at 490-91 (Burger, C.J., concurring) (quoting Mosley,
423 U.S. at 109 (White, J., concurring)). We find that Alston
made just such an autonomous decision when he waived his Miranda
rights and spoke with the police on August 29th, and that he was
not denied in any way the "fundamental fairness" guaranteed him
by the Fourteenth Amendment.
VI.
This petition has raised some significant questions
concerning the efficacy of the procedures used in Delaware's
Gander Hill prison facility. Perhaps if this Court were charged
with crafting a procedure for the recordation and maintenance of
a suspect's invocation of his right to counsel, we would devise a
less cumbersome system than the one applied to the petitioner.
But it is not our task to develop such a system, nor do we sit as
an ecumenical overseer of the state's detention procedures. We
are solely charged with determining whether petitioner is being
held in violation of his constitutional rights. Limited as we
are to this jurisdictional grant, we find that there was no
deprivation of Alston's constitutional rights, and will affirm
the district court's denial of Alston's petition.