DocketNumber： 71-1682
Citation Numbers： 467 F.2d 1248
Judges： Dillin, Pell, Swygert
Filed Date： 11/9/1972
Status： Precedential
Modified Date： 11/4/2024
Ruben Williams appeals from a decision of the court below denying his petition for a writ of habeas corpus, brought pursuant to Title 28 U.S.C. § 2254. We reverse.
Appellant was convicted in the Circuit Court of Cook County, Illinois of the murder of Robert R. Fleming and sentenced to imprisonment for not less than thirty-five nor more than fifty years in the Illinois State Penitentiary. He appealed, primarily on the grounds that five statements, four oral and one written, were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and erroneously admitted into evidence in violation of his constitutional rights under the Fifth and Sixth Amendments. The judgment was affirmed. People v. Williams, 264 N.E.2d 901 (Ill.App.1970), leave to appeal denied 45 Ill.2d 592 (1971).
His state remedies exhausted, appellant petitioned the district court for a writ of habeas corpus, submitting the petition for consideration upon the state court record. That court denied the petition, ruling that the record established that appellant had been adequately warned of his rights under Miranda and had voluntarily and knowingly waived them. We likewise rely upon the state court record.
I
The record reveals that Fleming was killed sometime during the early morning hours of October 15, 1967, in his Chicago apartment. Appellant was first arrested and taken into custody, also in the early morning hours of October 15, 1967, following an automobile accident he had on the Indiana Toll Road while driving Fleming’s car. At the accident scene appellant presented Fleming’s registration and credit cards to an Indiana State Trooper when asked for identification. The trooper took appellant to a police station to administer a Breatholizer test. Prior to the test the trooper read to appellant the legend printed on a standard form used by the Indiana State Police.
On the evening of October 20, 1967, the same trooper learned that the automobile was connected to a Chicago homicide, and returned to the Laporte County Jail to question appellant. He read appellant the same warning and waiver of rights form, but this time appellant refused to sign or .mark it. Nevertheless, the trooper proceeded to interrogate appellant, eliciting from him that he was in fact Ruben Williams and that he had borrowed the accident vehicle from Robert Fleming. Under further questioning he admitted having met Fleming in a bar on the night of October 14, and later having had a homosexual relationship with him in a hotel room, ending with a disagreement between them. He then refused to answer additional questions.
Appellant challenges the adequacy of the advice of his right to an attorney, in light of the qualifying language, “We have no way of furnishing you with an attorney, but one will be appointed for you, if you wish, if and when you go to court.”
Miranda requires a clear and unequivocal warning to an accused of his constitutional rights, prior to the taking of any statement, whether exculpatory or inculpatory, during interrogation occurring after an accused is taken into custody. One of those rights is, of course, the right to the presence of counsel, hired or appointed, before and during any police questioning. Referring to the necessary warning of the right to appointed counsel at this crucial stage of the accusatory process, the Supreme Court said:
“The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.” Miranda, 384 U.S. 436 at 473, 86 S.Ct. 1602 at 1627, 16 L.Ed.2d 694 at 723.
We hold that the warning given here was not an “effective and express explanation;” to the contrary, it was equivocal and ambiguous. In one breath appellant was informed that he had the right to appointed counsel during questioning. In the next breath, he was told that counsel could not be provided until later. In other words, the statement that no lawyer can be provided at the moment and can only be obtained if and when the accused reaches court substantially restricts the absolute right to counsel previously stated; it conveys the contradictory alternative message that an indigent is first entitled to counsel upon an appearance in court at some unknown, future time. The entire warning is therefore, at best, misleading and confusing and, at worst, constitutes a subtle temptation to the unsophisticated, indigent accused to forego the right to counsel at this critical moment.
“ . . .if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that the they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that time.” Miranda, 384 U.S. 436 at 474, 86 S.Ct. 1602 at 1628, 16 L.Ed.2d 694 at 724.
Consistent with the above, many courts encountering similarly qualified warnings have recognized them as deficient. See United States v. Garcia, 431 F.2d 134 (9 Cir. 1970); Lathers v. United States, 396 F.2d 524 (5 Cir. 1968); Sullins v. United States, 389 F.2d 985 (10 Cir. 1968); Fendley v. United States, 384 F.2d 923 (5 Cir. 1967); Square v. State, 283 Ala. 548, 219 So.2d 377 (1969); Reese v. State, 462 P.2d 331 (Okl.Cr.1969); State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (Wash.1969).
If an interrogation is conducted without an attorney present and a statement results, the government has a heavy burden of proving that the defendant “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724; Escobedo v. Illinois, 378 U.S. 478 (1964); United States v. Jenkins, 440 F.2d 574 (7 Cir. 1971); United States v. Nielsen, 392 F.2d 849 (7 Cir. 1968). In other words, the record must contain strong, affirmative evidence of a knowing and intelligent waiver. Waiver may not be presumed from a silent record, from the silence of the accused after warnings, or from the fact that an accused answers a few questions or gives some information, particularly when in-custody interrogation is involved. Miranda, supra; Jenkins, supra; Nielsen, supra.
The record here is totally barren of evidence of a knowing and intelligent waiver. There is no evidence to support an inference that the statements were spontaneous or volunteered. We accordingly hold that the October 15 and October 20 Indiana statements were inadmissible for lack of an adequate warning and for failure of proof of a knowing and intelligent waiver.
II
In addition to the two Indiana statements, appellant gave two oral statements to Chicago police and a written statement to the assistant state’s attorney for Cook County, Illinois.
As aforesaid, on October 20 the appellant gave Indiana authorities an oral statement which thoroughly implicated him in the death of Robert Fleming. This information was transmitted to the Chicago police who promptly took him into custody the next day (without benefit of extradition proceedings) and, armed with knowledge of his Indiana statement, continued his interrogation at a Chicago police station. This questioning resulted in two more oral statements, culminating in appellant’s admission that he had struck Fleming with a lamp. An assistant state’s attorney was then called, who proceeded to take a written statement.
Although there was a conflict in the testimony as to whether or not appellant was informed of his constitutional rights by the Chicago detectives, we assume that some warnings were given. It is by no means clear from the record, however, exactly what those warnings were. The record reflects four different versions — two by each detective. Only if all four versions were considered together, could we find that an adequate warning was given and this without regard to the fact that appellant had been erroneously informed of his rights just the
Regarding the failure to provide counsel, once appellant requested it, that omission is sufficient by itself to require suppression of the written statement. As noted above the authorities do not have the option of not providing a lawyer and continuing their interrogation. Miranda expressly states:
“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” Miranda, 384 U.S. 436 at 474, 86 S.Ct. 1602 at 1628, 16 L.Ed.2d 694 at 723.
Finally, it is obvious that the three statements taken from appellant in Chicago are the direct and tainted fruits of the illegally obtained statement taken in Indiana the day before. Appellant was in the continuous custody of police from the moment of his arrest on October 15, 1967, through October 21, 1967. The lapse of only a few hours in the interrogation and the removal of appellant a few miles to the jurisdiction of another police authority certainly did not constitute a sufficient break in the stream of events to insulate the October 21 statements from the illegally obtained statement of the previous day. Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Wainwright v. LaSalle, 414 F.2d 1235 (5 Cir. 1969). Their admission was constitutional error.
Ill
Appellant also requests this Court for a ruling that his testimony on trial, given after his five statements were received in evidence — illegally, as we have found — may not be used against him on a second trial of this cause in the state court. We hesitate to give what would amount to an advisory opinion, but deem it appropriate to observe that the holding of Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), would be as binding upon the state trial court as it would be upon this court with regard to use of such testimony as a part of the State’s case in chief. As to use for impeachment purposes, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), appears to state the present rule.
We are not unmindful of the fact that a warning identical to that here used by the Indiana trooper has been approved by a divided Supreme Court of Indiana in related cases of Jones v. State, 252 N.E.2d 572 (1969), and Rouse v. State, 266 N.E.2d 209 (1971). As above noted, it was likewise approved by the Appellate Court of Illinois in the appeal of the Illinois conviction here involved. People v. Williams, supra. Further, a warning including the phrase that a lawyer would be appointed for the defendant “if and when you go to court,” has been given approval by this Court, although the opinion does not set out the entire warning.
In view of the foregoing, we have considered our holding in accordance with the criteria set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and have determined that this decision should be given a prospective application. See United States v. Dickerson, 413 F.2d 1111 (7 Cir. 1969). Our holding, therefore, will apply only to interrogations taking place after the date of this decision.
We reverse the district court order denying the petition for the writ and remand with direction to grant the relief prayed for in the petition unless the Illinois authorities grant Williams a new trial within a reasonable period to be fixed by the district court.
. The form reads: “Warning as to Rights
“Before we ask you any questions, it is our duty as police officers to advise you of your rights and to warn you of the consequences of waiving your rights.
“You have the absolute right to remain silent.
“Anything you say to us can be used against you in court.
“You have the right to talk to an attorney before answering any questions and to have an attorney present with you during questioning.
“You have this same right to the advice and presence of an attorney whether you can afford to hire one or not. We have no way of furnishing you with an attor
“If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time. You also have the right to stop answering any time until you talk to an attorney.
“Waiver
“I have read the above statement of my rights, and it has been read to me. I understand what my rights are. I wish to make a voluntary statement, and I do not want an attorney. No force, threats, or promises of any kind or nature have been used by anyone in any way to influence me to waive my rights. I am signing this statement after having been advised of my rights before any questions have been asked of me by the police.”
. “. . . Well, Ruben, I told you about ■ a lawyer and I told you if you haven’t got the money, the judge or someone of the officers will appoint a lawyer to defend you, but we are out here, we have no lawyer here. But your case will come up in court Monday, maybe and you can ask for a lawyer there and the judge will give you a lawyer. Now, you still want to make the statement without a lawyer being present here?”