Eutues White v. Fred Finkbeiner

Consequently, as I can find no “larceny.” Congress, WHITE, from I would

contrary directive Petitioner-Appellant, Eutues larceny given accepted must hold that FINKBEINER, meaning which common-law includes Fred Respondent-Appellee. deprive permanently. intent Maloney, Judge Hug dissent No. 79-1563. strictly the three choices available in listed Court of Appeals, construing larceny under section 1153: Seventh Circuit. 1. We could hold that § larceny, law Argued codification common Nov. suggests legislative history sever- Decided Dec. hold; al cases Rehearing In Rehearing and Banc 2. We could find that 661 does not § 15,1980. Denied Feb. punish larceny define and and thus look ; applicable

to the state law . . .

3. We could hold that 661 defines § punishes common law larceny as well conduct,

as other in which “the intent to

deprive permanently” requisite, is not but

that for purposes only, §

common larceny aspect law crime punished.

Maloney, (Hug, J., F.2d at dissent-

ing). Maloney, adopting As in requires

alternatives listed vacating above

defendant’s conviction. If section larceny

not define so that defendant should charged statute, been

have under a state fatally

then indictment was defective.

If section 661 does define common-law lar-

ceny, the conviction still should be reversed

because the trial court did not instruct

jury on the essential intent element. I judgment

would reverse the below. Altaha, February 10, (D.Ariz. punished by No. was not defined and CR-70-412 the federal 1971), reprinted Reply Defendant’s Brief statute entitled with intent to com- “[a]ssault 16, which held “assault with intent to kill” mit murder.” Jones, Appellate appeal, On the Illinois Appellate Kenneth L. Asst. State Court Defender, Ruebner, Ralph Deputy Appel- suppression hearing ordered a new Defender, 111., This Chicago, petitioner- hearing lant held.2 con- held appellant. again found fession was to be admissible.3 appeal, Appellate On the Illinois af- Court Lien, Gen., Atty. Asst. Chi- M. Kathleen judgment.4 firmed this The Illinois Su- 111., cago, respondent-appellee. for preme Court affirmed this decision5 and SWYGERT, SPRECHER, Before Supreme the United States Court denied WOOD, Judges. Circuit certiorari.6 Thereafter, petitioned White the district

SWYGERT, Judge. Circuit a corpus. court for writ of habeas Without holding hearing, a district court denied Petitioner-appellant Eutues ap- White the application appeal, a for writ. On this peals judgment from the of the district court an evidentiary hearing remanded for court which denied his claim for habeas 1) appellant determine: re- whether the corpus relief under 28 U.S.C. 2254. The § quested 2) custody; counsel when he was in petition basis of White’s is that a confession whether there was a waiver of the request admitted trial at his murder was obtained counsel; 3) for whether the officers acted in violation rights of his under the Fifth confession; good 4) in obtaining faith in Amendment interpreted in Miranda v. Powell, reasoning whether the of v. Arizona, Stone 436, 1602, 49 L.Ed.2d 1067 (1966). Specifically, White con- precludes corpus federal habeas relief.7 tends interrogation that the which led to his confession occurred he had made a On remand the district court held evi- request for counsel. presented The issues dentiary hearing. The district court made for decision are whether White made a re- findings of fact and conclusions of law. quest so, for counsel and if whether this The district court concluded that did White request was waived. We hold re- a request most, make for counsel. At quest made, for counsel was but that this the district court found that White stated request was waived. attorney.”8 “I’d rather see an district court also found confession I was voluntary. pe- Because no violation of n White was jury convicted of mur- rights titioner’s was found the district court der,1 prosecution with relying primarily declined to decide v. Stone Powell upon his suppression precludes confession. At a corpus hear- habeas relief violations ing prior trial, held challenged White of the Miranda rules. We judg- affirm the admissibility of this confession. The trial ment of district court but do so court denied the motion. grounds. different We conclude that re- judge People White, 1. The trial sentenced White to not 5. less 61 Ill.2d N.E.2d years years. (1975). than 199 but not more than 200 Originally, jury had recommended that imposed. death sentence be the trial Illinois, White judge impose chose not to that sentence. (1976). appellate 2. The court remanded for determi- Finkbeiner, 7. White v. rights given. nation of whether Miranda were People White, Ill.App.3d 295 N.E.2d Supreme 8. The Illinois Court held that White did indeed counsel but nonetheless 3. White was resentenced to not than less found that the confession was admissible. The years. nor more than 198 testimony court stated that unmistak- “[The] ably established that the defendant White, People Ill.App.3d disagreed 317 N.E.2d counsel.” The district court finding fact. conclusion During palm print. and a made but that White counsel waiver forms May signed 25 White request.9 waived this to other signed typed confessions also II separate interroga- Before each crimes.12 his gave White Miranda Louis, tion the officers East St. was arrested White he rights. indicated that understood 24,1969. The arrest was for May Illinois on again May White was rights. On to the murder these an offense unrelated rights, and interrogated, given his Miranda eventually ap- It he convicted. con- signed form and a occurred sometime waiver pears that the arrest interrogat- arriving typed out one of the morning. fession After station, were not aware ing read White officers. The officers Captain Johnson con- requesting At this time short remark rights. Miranda White’s between Johnson and now versation occurred nor did White at time state that he sought to de- Apparently Johnson nor that he had appointed White. wanted counsel he White and also asked was previously requested termine if knew counsel. There why he testimony if to talk about he when White was asked if White he wanted that words are not he in custody. responded in The exact substance was wanted certain, responded in substance lawyer.” signing but White “I After the don’t need attorney.” “I’d an John- re- that rather see White and several officers confession of this the other officers the reen- son never notified to the scene of crime and turned Apparently, it. nor made note of the acted crime. merely this an invoca- Johnson considered right remain silent.11

tion of the to Ill inquiry The initial is whether White May White was May 24 and Between The district attorney. during made a for counsel. given an that never interroga- unequivocal no “clear or to court found that subject he was several time officers, was made.13 But lineup, request” for counsel investigating tions course, he he told Johnson. At times said that affirm the district to Johnson our decision to 9. Of attorney” at of the Stone v. “I want to see an while court makes our resolution unnecessary. “I’d Powell issue time he said that he told Johnson another rather attorney.” see an testimony point is this in conflict. point testimony on this extreme- suppression hearing, At the from the Illinois held after remand ly find muddled. While the district court did Court, Captain Appellate John- attorney did not an it did that White said, response testified that son question White basically in sub- as a that White said find fact why to he as to he wished tell whether attorney.” stance “I’d rather see an incarcerated, was “I’d rather see an attor- that However, ney.” hearing at recess practice East Louis was of the St. 11. It that Johnson was recalled and testified department honor a for coun- to attorney anything but never said that Johnson voked hearing about an investigating notify of the all officers sel request. merely thought that White in- evidentiary At the to silence. during that this recess White testified appears that White was From the record it attorney. state’s Johnson conferred Thus, other crimes. never tried for these substantially his testimo- Johnson altered testimony evidentiary ny. at Johnson’s authority for the 13. The court cited no district hearing clarify point. this This added little to proposition must for counsel that understandable, considering that the incident is Johnson described occurred almost Indeed, language unequivocal.” "clear years ten Arizona, in Miranda v. contained ago. (1966) is to the L.Ed.2d 694 testimony Unfortunately, little did to White’s contrary. testify explicate did not at this matter. White for the determination hearing The standard of review suppression the Illinois the Appellate ordered finding of the whether the district court’s at trial White testified Court and Johnson being the conversation between facts to he not incarcer- that did even remember clearly evidentiary hearing is the erroneous standard. and White At the White testi- ated. fied that he White was However, made were whether the statements had actually request legal exactly is a deter- not he sure about what said lawyer). did for a appear that White state in some But in this instance White’s attorney.” attorney” see statement that “I’d see form that “I’d rather an rather an court, however, require was a not To The district did believe person custody specific to be even more an statement was actual ignore to would be in Miranda attorney for an but rather an invocation of quoted above. right to remain silent. Other courts have had to determine determining whether a a request for counsel has been made, language of counsel was Miranda Leon, made. United States De Arizona, (D. I.1976) the suspect V. unsuc (1966) is instructive. cessfully attempted lawyer. to call his If any indicates in manner [the accused] suspect then stated that he would like stage any process and at he speak lawyer but also stated he attorney wishes consult with before willing to make a statement. speaking can questioning. be no court stated that this assertion could be 444-45, at at (empha- interpreted willingness give as a a state added).14 sis attorney present ment after the or as a Thus, Miranda teaches that waiver of the invocation. With such stake, explicit. counsel need fundamental in the court terpreted light Rather it must be statement most determined if there was favorable the defendant and held that an indication “in manner” that requested. Mag counsel had been See also attorney. accused desired to consult with an (6th 1978) lio v. 580 F.2d 202 Cir. prosecution insists that the fo (“Maybe I attorney” should have an con cus inquiry totality of the be on the should request sidered a for lawyer); a United of the circumstances in which the statement Clark, 1974) States v. 499 F.2d 802 Cir. was uttered —Johnson did not have the di (“I had lawyer” better talk a considered rect responsibility investigating the case request lawyer). a for a spoke and only to White for a short amount sig Those cases which have discussed the of agreed time. district court with this request of nificance a aby suspect for the analysis and concluded that under cir the lawyer of a inapposite. recommendation are cumstances, Johnson’s conclusion an that See, g., e. Fogg, Collins v. attorney was requested not was reasonable. (E.D.N.Y.), aff'd, (2d Cir.), reject We application the approach this 869, 210, cert. 434 U.S. S.Ct. to the facts before us. approach places This The statement in the too much emphasis on subjective the inter present case much was more of an affirma pretation police of the ignores officer and tive request request the than mere for a import of the by words uttered White. attorney. recommendation an We thus may There be certain instances where the hold request that White made a may officer properly have concluded that a statement was not a IV for a lawyer. Botero, States v. prosecution argues that even if 1978), 944, 441 U.S. there was a this 2162, (1979) 60 L.Ed.2d 1045 (request was later waived. As preliminary a matter

to call girlfriend not construed as we must Michigan decide if Miranda and Thus, finding get lawyer any mination. the district court’s on think I had better a before I talk this matter is not due the same inapplicable deference more.” The rule Miranda was findings of fact. to Frazier since the trial in Frazier had been held before Miranda was decided. 731, Cupp, In Frazier v. 89 S.Ct. applicable the Court noted that if Miranda were (1969) Supreme L.Ed.2d Court might it conclude that was a this for a discussed, dictum, in obiter what words were lawyer. sufficient to invoke a for counsel under suspect Miranda. The in Frazier “I stated that going per approach a se too tary, 46 L.Ed.2d Mosley, 423 U.S. per requiring rule (1975) a se at stake. protecting construct far toward of a sus- questioning no there can be provided that a se rule perA requested.15 is pect after counsel for coun- never waive could privileg- in his imprison would sel should be a determining California, is 422 U.S. rule, analysis Faretta se es. Cf. per touchstone (1975) (cannot “If the individu- in Miranda. 45 L.Ed.2d 95 S.Ct. attorney, an that he wants al states who wishes force trial counsel defendant attorney until interrogation must cease counsel). This is proceed without at 86 S.Ct. present.” is 384 U.S. interrogation say continued causing to waive coercion per Instead, of a creation support Further request need condoned. language contained prohibition se acknowledgement cer- merely is an Michigan Mosley, reasons, instances, person for various tain con- Mosley custody previously who has suspect who of a cerned the voluntarily de- may knowingly and silent. The to remain had invoked repre- longer wishes to be that he no cide interrogate could held that the Court sented invoked his previously who had per se rule would cause The creation of resumption of This right to remain silent. purpose touch with courts lose suspect’s if the was questioning proper decision —a policies behind the Miranda scrupulously hon- right to remain silent knowing free of constitutional exercise rule, however, stating ored. se Adoption per of a rule would rights.16 procedure utilized note that the Court did to the resolu- present- approach to mechanical initial lead after an case, That the Court we particular ed a different matter. cases face. tion stated, requirement governed per rule and instead we eschew the se question- set down in Miranda —no further case-by-case analysis in adopt choose present. ing attorney the is until are reflected in which the concerns which Mosley incorporated into Miranda and are behind the Court’s

While the basic idea Rodriguez- analysis. v. Mosley salu- the United States in Miranda and is discussion sign that he would not a sen the accused stated White relies United States ex rel. Wil on 1972) lawyer. Twomey, (7th liams F.2d Cir. he his v. 467 1248 form until could talk to waiver creating per Thereafter, suspect the as such a se rule. Williams talk to the the continued to lawyer suspect a stated he would like agents willingness that expressed a to F.B.I. making a The state’s attor before statement. apparently the case as This court treated talk. ney appellant having law dissuaded the from a invocation of the to silence. stating yer. The court excluded this statement indicating language in that the is the case prosecution cannot its inter that continue right to counsel can be waived. rogation appoint and not interpreted been as set While Williams has hypothetical might demonstrate A case rule, ting per rel forth a United States ex se folly per of a se rule. the case where Consider Rowe, (N.D.Ill. Sanders v. 460 1128 put suspect requests is in a counsel and then 1978), explicitly hold that this court did not suspect happens guard who cell. tells a Indeed, waiver could be obtained. never changed pass mind. He his he his cell that has presented issue in Wil of waiver was not even lawyer says not and would that he does want Rather, to determine liams. the court had Certainly it serves no valid like to confess. questioning a re the continued accept policy to refuse to behind Miranda required certain state that Indeed, in Mi it the idea waiver. contravenes that to now hold ments inadmissible. able should be an individual randa —that require per that there is no rule not se does rights. freely exercise clearly is dis Williams be overruled. case presented in are the facts While these tinguishable. they the harm our case do illustrate how hard understand would be per future could do in per of a se rule in creation se rule Williams could have created light v. in United States cases faced in this circuit. of this court’s decision Nielsen, (7th 1968). Niel 392 849 F.2d Cir. 192

Gastelum, (9th (1938). (en banc), 569 482 Cir.) F.2d 1461 Besides consideration of the denied, 919, 2266, cert. 98 experience, 436 U.S. S.Ct. 56 background, and conduct accused, have courts which had to deter mine if a has been Mosley relies on attempted waived have focus on other dictum, reaffirmed, which procedure factors in analyzing the content of the set forth in Miranda. We do not read that Rodriguez Johnson test. United States language in Mosley governing this issue. Gastelum, (9th Cir.), 569 F.2d 482 cert. de message Instead we note broader nied, 919, 2266, 436 98 S.Ct. 56 U.S. L.Ed.2d decision; pervades Mosley is—the 760 procedures Miranda are flexible and are not specific language controlled in that One suspect such factor is whether the Thus, looking decision. broader im- initiated contact which led to the state port Mosley, we refuse read that being Maglio case ment made. See 580 as constructing per (6th 1978); se rule. United F.2d Cir. United States v. Pheaster, (9th Grant, States v. denied, F.2d 353 Cir. (4th Cir.), cert. U.S. S.Ct. 53 L.Ed.2d 1081 (1977). The concern reflected these cases Those courts confronted with the issue of is that when not initiate per whether a se prohibition post-request police, contact with the likely it more statements should attach overwhelmingly previous the decision to waive the have held that per there is no se rule. quest will pres be the result of coercion United Rodriguez-Gastelum, States v. suring. (9th Cir.) (en banc), F.2d 482 denied, cert. 56 L.Ed.2d 760 Yet there nois reason to conclude that as (1978); Estelle, Nash prerequisite waiver, F.2d must 1979) (en banc); Cir. always po- States v. have initiated contact Grant, (4th Cir.), cert. lice.18 There be instances where for L.Ed.2d 1081 some valid reason the must contact (1977); Robinson, Cobbs v. accused, 528 F.2d 1331 the and a confession follows this (2d 1975), Cir. Wilson, contact. United 571 F.2d (1976).17 1978) (police procedure to in- form charge accused new and after this Therefore, we hold that Miranda and talk). contact indicated desire to Mosley do not per create a se rule prohibit- course, Of in those cases where the ing a waiver resumption question- and a waiver, does initiate the it will be much ing. However, we note that the state has a discharge easier the state to heavy heavy proving burden of waiver. We now proving burden of waiver. But this does proceed components to discuss the various police not mean that where contact the application this waiver test to the a request pros- case before us. prohibited ecution is from ever demonstrat- ing a waiver. V general test for waiver of particular an We believe that under the right individual’s constitutional is whether circumstances this case the fact that the government has shown “an intentional initiated contact with White does relinquishment or abandonment of a prohibit known showing waiver. record right Zerbst, or privilege.” Johnson v. subjected 304 indicates that White was to inter 458, 464, U.S. rogation request. 82 L.Ed. after the it But is also 17. The Sixth Circuit has refused to reach the accused initiated the waiver. Maglio (6th issue. v. Cir. court believed that such a rule be tanta would 1978), holding presented that on the facts adopting per no to mount se rule that it chose waiver was made. reject. Rodriguez-Gaste States lum, (9th Cir.), F.2d explicitly rejected 18. The Ninth Circuit has require, proof waiver, rule which would as pres the situation without the and evaluate was made without this decision clear that original request prodding of officials.21 United of the ence or knowledge Lewis, (D.Conn. Thus, not have a case where we do States investigating 1977). officers by known all it is counsel.19 requested has case, was im present In the Rather, for counsel was off- mediately returned to his cell after the re passed on to the that was not hand Interrogation for the quest for counsel. The decision of the officers.20 investigating particular charged crime with which he was interroga- to resume investigating officers During days until two later. did not occur unique cir- solely caused tion was opportunity this time White had an transpired at the time cumstances which previous request. flect on his brought Johnson: John- White was before might It be contended that the incarcera- officer; investigating was not son We tion had a coercive effect on White. off-hand; for counsel was White’s reject argument. reading Our of the meeting lasted several min- that after White record indicates utes. again expressed he never a concern which can indicate Another factor appointed. over the failure to have counsel was the time that a waiver was executed fact, during interrogation and after original request and the delay between the warnings, being given his Miranda he stat- have viewed waiv interrogation. Courts lawyer.” ed that “I don’t need a the initial re er which follows soon after in Mi- We are mindful Grant, suspect. United States which warns of the coercive effect of randa (4th Cir.), cert. interrogation. every But in incommunicado 53 L.Ed.2d jail which a is held in it instance in Nixon, 571 F.2d (1977); United States not follow that there was in fact coer- 1978); of Canal (9th Cir. Government Instead, depend case must cion. each Gomez, Zone v. 566 F.2d Cir. the court in specific presented facts 1978). a case is A waiver obtained such For us to hold that the record.22 incarcera- result of continued comment likely to be the always tion leads to coercion would be to the authorities. United questioning Thus, it can- ignore the facts of this case. Twomey, 467 ex rel. Williams v. F.2d delay not be said that the time had a coer- lapse time between A upon White. cive effect badg prevents key other factors

ering gives Finally, we note several or harassment. facts time to reconsider his decision us to conclude that on the which lead might presented know a for counsel has been made and a different case ques- merely period where the accused makes a clear of time to resume wait tioning. counsel which is transmitted to all involved officers. A decision to resume that case would As noted above we deal here with understandably unaware of officers who were analysis. require interpret a different We do not Mosley require per se rule. we say that a 20. We do not mean to cognizant between the are of the differences import. non-investigating To officer is without request for counsel and an invocation of the ordinary contrary, the may in the case the accused necessarily remain silent and do not by non-investigating be arrested officers. procedures approve parallel in the of the use of request A clear made in cases will be those two cases. imputed present all In the of the officers. analysis depends The waiver is one which on exchange case because of the nature of the totality of the circumstances. passed was not on. present distinguishes case from emphasis put particular 22. This 21. fac- The that we Womack, 542 F.2d 1047 necessarily States v. United tors in mean that this case does not suspect 1976). made sev- In Womack the presence Cir. eral factor in a the future case will be determinative. or absence of the requests requests These went For in- morning stance, delay and the next can be a unhonored we note here that a time again questioned. finding testified we do was that a new factor not of waiver. practice made because he the authorities was not condone the where was Before defendant’s brief conversation with of this case a waiver executed. John- Considering son. the conversation and the giv separate interrogation White was each circumstances conversation warnings. en Miranda States I place, took do not construe it as a Evans, (9th Cir.), denied, cert. counsel, for but at of way most L.Ed.2d telling Johnson the defendant did not care Maglio But see 580 F.2d waiver, discussing Judge to talk him. of waiver these Swygert notes that after the Johnson con- Also, waiver. signed con again versation defendant never ex- signed by fession was White. United pressed concern over of If lack counsel. Lewis, (D.Conn. quick change was in fact a of mind 1977). We also note that while did White as to defendant the need explicitly previous request waive his appears to have occurred without reason counsel, his “I comment don’t need law explanation. I am satisfied that there was yer” very explicit is to ah close waiver. change no of mind. The defendant’s obvi- Rodriguez-Gastelum, United States v. of having ous lack concern about (9th Cir.), F.2d 482 cert. 436 U.S. expressed shortly after the Johnson conver- weight sation entitled to some in inter- preting that conclusion, conversation. we hold that in this case White waived his for counsel. The interrogated

officers who White were never

informed of the for counsel. This is considering

understandable peculiar na colloquy

ture of the between

Johnson. The waiver was not the result of America,

coercion nor the result of UNITED STATES Plaintiff-Appellee, which immediately followed the initial re quest. Finally, given White was his Miran warnings times, da signed several a written GRAY, Walter James rights, waiver of these and made what Defendant-Appellant. explicit almost an waiver of his re 79-1018, Nos. 79-1425. quest for counsel. of Appeals, United States Court judgment district is af- court Seventh Circuit. firmed. Argued Oct. WOOD, Jr., HARLINGTON Decided Circuit Dec.

Judge, concurring. result,

I concur in agree but I also Judge Morgan’s interpretation

with previous was scared and believed since his such coercion be evident from the condi- requests ignored had been it would futile tions the incarceration even absent such again request testimony. However, counsel. The court held that these conditions are not there was not present a waiver and that a concluded in this case. new was not made because the lapse Our belief that the effect a time turns thought again particular such would on the facts is demonstrated con ignored. trasting Evans, Womack with United States v. (9th Cir.), Womack, Unlike White did not several make unequivocal (1978) requests L.Ed.2d counsel but rather one —both non-investigating off-hand Ninth Circuit cases. In Evans the comment offi- present quested opportunity cer. counsel but had an case there was no never testimony by again Interrogation White about to meet failure resumed day counsel or fear of after the incarceration. arrest a confession was urge presume White would that we such ill taken. The court held that waiver was exe effects from the incarceration. cases certain cuted.

Case Details

Case Name: Eutues White v. Fred Finkbeiner

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 15, 1980

Citation: 611 F.2d 186

Docket Number: 79-1563

Court Abbreviation: 7th Cir.