Robert Lee Boles, Jr. v. Dale Foltz, Warden

gun precluded object handgun trial that he did have second to the evi- contrary of at the the introduction evidence dence constituted ineffective assistance felony trial. Since Rice’s that would itself have satisfied the cause stipulated at the first prejudice conviction standard. Murray See trial, disability, establishing the Carrier, thus U.S. only presented by weapon charge issue (1986); accord Cook weap- Rice in fact was whether did have a Foltz, (6th Cir.1987) possession on in encounter (Merritt, concurring). complaining with the witness. We do not

perceive jury “a how rational could have

grounded guilty] upon verdict [not possession weap-

issue other than” the of a Swenson, time.

on at that Ashe v. S.Ct. at 1194. presumption

Indulging the of effective by Strickland, representation mandated BOLES, Jr., Robert Lee does not Petitioner-Appellant, ap- lead to a different conclusion. Rice’s pointed attorney forthrightly evidentiary hearing it did not occur to FOLTZ, Dale Warden, acquittal weapon charge him Respondent-Appellee. testimony

would foreclose admission No. 85-1469. gun being about a at the trial. second This case, his failure seek exclusion United States Court of Appeals, that evidence cannot attributed trial Sixth Circuit. strategy seeking ques- tactics. His complaining credibility tion the witness’s Argued Jan. would not have ruled out to ex- effort April 24, Decided gun. clude the evidence aof The two objectives would Rehearing not have been inconsist- Rehearing En Banc 23, 1987. ent. Denied June Having repre- concluded that counsel’s deficient,

sentation further conclu- inescap-

sion that Rice prejudiced

able. While there some evidence of force, testimony

other force and threats presence gun way

about the and the

it was handled and brandished far pervasive

more and direct. It is least

reasonably probable

heard all the other evidence at the second

trial, concerning none of the evidence presence gun, or use of have would

failed to convict Rice. judgment of the district court

affirmed. JONES, Judge,

NATHANIEL R. Circuit

concurring. fully opin- Judge’s concur in the Chief only

ion. I separately express my write

belief failure counsel Rice’s (argued),

David M. Lawson Lizza and P.C., Detroit, Mich., Mulcahy, er-appellant. (argued), Dept, A.

Thomas Kulick Gen., Div., Lansing, Atty. Corrections Mich., respondent-appellee. KENNEDY, Judge; Circuit Before CONTIE, Judge; Circuit and Senior *, Judge. GIBSON District KENNEDY, Circuit G. CORNELIA Judge. Boles,

Petitioner-appellant Lee Jr. Robert appeals (“petitioner”) the District Court’s petition denial his for writ of habeas corpus. appeal Petitioner claims on that: 1) 24,1978 July arraign- at a larceny charge ment on an unrelated con- stituted a counsel and his con- a subsequent to murder at interro- fession inadmissible; 2) gation was therefore admission of a second confession and evidence derivative was harmless be- 3) doubt; yond a neither reasonable confes- 4) voluntary; prosecutor’s sion was peremptory challenges systematical- use of ly from the and violat- excluded blacks impartial to fair ed a below, we jury. For the reasons stated denying the District Court’s decision affirm cor- petitioner’s petition for writ habeas pus. degree was convicted of first

Petitioner Mich.Comp.Laws 750.316 murder under § involving shooting Saginaw, a in case after- Michigan, July 1978. On that Letson, noon, victim, Clyde was wash- car a self-service wash. ing truck at Holly him. A man daughter was with His began talking to Letson and approached twice, bent over him. The man shot Letson him, something pocket, took from away. shortly died thereafter. Letson ran forty people at the scene at Thirty to shooting. the time following day was arrested the He shooting for an unrelated offense. suspect in the shoot- apparently also July day, next ing. On the Michigan, sitting by designation. Gibson, Benjamin * The Honorable F. Judge States District for the Western District of arraigned again on the unrelated offense of confessed murder. The wallet larceny arraignment, the larceny. At can, was found in a trash gun, exchange place: following took claimed to have thrown in you Mr. Boles assume de- river, The Court: July 31, never found. On Preliminary Hearing sire have arraigned open on an mur- matter, is that correct? der warrant. Your Yes I do Honor. Mr. Boles: pretrial hearing, At a People Walker Okay. The Court: Walker, 374 Mich. 132 N.W.2d 87 ah, My, my attorney appear Mr. Boles: (1965), petitioner suppress moved to both here now. i confessions. He claimed that his state- What’s that? The Court: involuntarily ments were obtained and in ah, little Mr. Boles: wanted want a violation of his to have counsel hear to—I want to the Prelimi- advise present during interrogation. The state nary ... court trial concluded that both confessions please put anything don’t The Oh Court: knowingly voluntarily were and made and at this time. Don’t on the record talk at they were into admitted evidence. The vic- you this time. Wait until after talk to tim’s wallet also was admitted into evi- lawyer, your you do understand? dence. Petitioner was convicted first right. Mr. All Boles: degree murder impris- and sentenced to life going your hearing I’m to set The Court: onment. The conviction was affirmed day August. for the 4th appellate petitioner’s court and All right. Mr. Boles: application appeal for leave to to the state lawyer, The Court: Now how about a supreme court was denied. you your lawyer can afford to hire own petition Petitioner his filed writ of ah, Mr. Boles? corpus July 1982, in habeas on the Dis- got Yes I one. Mr. Boles: trict Court for the Eastern District of Mi- one, okay. The Court: You have chigan. initially The District Court condi- Appendix Joint at 140-41. tionally petition dismissed the for failure to July petitioner appeared On in a line- exhaust available state remedies. Boles v. up to the related murder and a of- third Foltz, (E.D.Mich.1983). 559 F.Supp. 1302 fense, felonious assault and rob- unarmed complaint Petitioner amended and ar- bery. day police officers, same acting gued that involuntary, his confessions were warrant, on a search found a tool check in delayed the result of arraignment and petitioner’s corresponded car which to tool taken violation of his to counsel. belonging checks July to the victim. On addition, challenged the search of his 27, petitioner on an open was booked mur- process. car and the selection noon, der charge. July On he was District Court denied relief on the last two rights, advised of his Miranda Miranda v. confessions, Regarding claims. it held Arizona, statements at first ar- and waived them raignment did fifth not constitute a amend- writing. interrogated He was then ment for counsel and thus the first confessed the murder of At Letson. properly confession admitted trial. afternoon, 2:15 that same The Court found that the second confession arraigned charges. felonious assault properly admitted because requested He appoint the court er counsel at second later, attorney for him. A short time arraignment, but that admission sec- returned and took to the ond confession harmless Final- error. locations which he dis- claimed to have ly, the Court held that both confessions posed weapon of the murder and the vic- appeals voluntary. Petitioner way tim’s On wallet. to these loca- tions, petition the officers of his District Court’s denial of his advised reinterrogated tape. corpus. him on He writ habeas spondent’s statement.” Id. 107 S.Ct. at

I. ordinary In the case before us the appeal that his state- claims meaning arraignment larceny constitut- at the ments attorney present he wished to have the sub- request for counsel and that ed a preliminary hearing. peti- find We sequent interrogation was violation tioner did not invoke his to have rights. The District his fifth amendment present reading of the “a fair found that properly thus his first confession was ad- transcript first shows at the mitted into evidence. his Fifth Petitioner did right to have counsel II. District Court during interrogation.” challenges Petitioner also the admis agree. We Opinion at 15-16. second sion into evidence confession has held that argues and its derivative evidence. He has invoked his “when accused request arraignment that his at the second inter present during custodial have counsel appointed that counsel be invoked subject not rogation, is ... [the accused] present at the to have counsel second inter un by the authorities rogation. He asserts that the admission of Ed made available.” til counsel been confession, taped second and the wallet Arizona, 477, 451 U.S. wards and tool check found as a result of that 1880, L.Ed.2d 378 101 S.Ct. confession, improper. was The District however, case, (1981). In this Court held that had invoked right at amendment his fifth did to have counsel inter arraignment. Petitioner stated larceny rogation and that admission of the second he wanted he and that that had and its evidence confession derivative was preliminary attorney present that however, held, improper. It also that ad express hearing. His did not harmless mission that evidence was be police only- “his desire deal with yond a reasonable doubt. 484, through counsel.” Id. at 101 S.Ct. found that The District Court Although require a the law does not Edwards, under had invoked his defendant to indicate whether a defendant has stating that “[u]nless fifth amendment counsel is based counsel for clearly indicated that he desires against or the privilege self-incrimination help during police something than other represented sixth amendment should assume interrogation, the Court during judicial proceedings, Mi that Jackson, chigan S.Ct. right.” Dis- invokes his Fifth Amendment 1409 n. 89 L.Ed.2d 631 Opinion 10. Because the Court trict re it is that the defendant’s where clear second proceeded with the police pres quest something other than the presence of tion outside interrogation, attorney during ence of an petitioner’s rights District Court held that The so construed. should be and the second had indeed been violated reasoning in a applied Court this into evi- improperly admitted confession a defendant stated recent case dence. willing give he an oral state that found, and we give a District Court also he The but that would ment the confession and agree, admission of unless his written statement harmless be- Barrett, evidence U.S. its derivative present. Connecticut Chapman v. doubt. See yond a reasonable 93 L.Ed.2d 920 California, conclude that The Court held that “[t]o first (1967). The Court found for L.Ed.2d respondent invoked his taped confession “[petitioner's interpre- requires not a broad purposes all his first confession statement, merely a reiteration ambiguous tation of an District Court cumulative.” meaning and therefore disregard ordinary Opinion Twomey, It also that because (1972). In case, had testimony petitioner in his admitted the trial wallet, appellate court and the having had the admission at trial court disbe- lieved claims that he Court was not material. noted the never rights, been advised of his that he had incriminating testimony of three witnesses threatened, and that asked for an attor- trial, “[c]ontrasting and held that ney. The findings state court’s of fact are against prejudice quantum amount of supported fairly conclusive if by the record. evidence, this Court constrained to Fenton, See Miller v. beyond find the errors harmless a reason- 445, 453, (citing 17-18 Bailey able doubt.” Id. at found, District agree, and we (6th Cir.1984)). Hamby, 744 F.2d 24 findings the state court’s supported separately addressed the admission the record it held of the tool check into evidence and held involuntary. confessions were not that, question although the was a close one, its also admission was harmless. We IV. analysis find the of the District Court to be finally challenges correct and affirm its decision process. selection He claims that his petitioner’s second claim. constitutional to a fair impartial jury was prosecutor violated because the III. peremptory used her challenges system Petitioner next asserts his confes- atically exclude from jury. blacks the The involuntary. sions He cites the fact District Court dismissed this claim on the that twenty-two at the time he years Alabama, basis Swain in v. which the old, grade education, had a ninth and was Supreme Court held defendant could barely able to read or write. He testified Equal not establish a violation the Pro at trial that he never advised of his proof tection solely prose Clause rights in accordance with Miranda and cutor’s action at defendant’s trial. Swain by police was told officers that he would Alabama, 202, 13 certainly receive a life sentence if he did (1965). The Supreme L.Ed.2d 759 Court in not confess. He also asserts that he asked Kentucky, Batson v. interrogating officer when he would S.Ct. 90 L.Ed.2d 69 announced attorney. Contrary receive an proving a new standard for unconstitution testimony, er's interrogating officer, peremptory challenges. al abuse of We Bradley, Officer petitioner testified that affirm the Court’s pe District dismissal of rights, been advised of his had not however, claim, titioner’s because Su promised been anything threatened, or and preme recently held that Batson requested had not see an attorney. applied retroactively should not be on col trial that court found had lateral review of convictions that became advised of his and that final before Batson announced. Allen confession was admissible. The state court — U.S. -, Hardy, of appeals findings. affirmed these petitioner’s Because conviction was final to the announce We affirm the District Court’s standard, finding ment of the in new standard did not meet his petitioner’s Swain would control case. proving burden of confession was affirm We the District Court’s dismissal of involuntary. action, In a federal habeas petitioner’s challenge on the basis of proving the burden of that the confession Swain. involuntary petitioner. rests with the Estelle, (5th Jurek v. 623 F.2d V. Cir.1980), denied, cert. S.Ct. 68 L.Ed.2d Further We affirm District Court’s denial of

more, only proven by petitioner’s petition voluntariness need for writ habeas cor- preponderance pus. Lego of the evidence. GIBSON, Judge, District is whether F. us BENJAMIN before implicated dissenting. larceny arraignment so, if counsel and right to Amendment Fifth following For the reasons barred holding of Edwards whether I opinion, dissent. interrogation police-initiated invoked argues Petitioner offense.2 unrelated larceny at the counsel the first that therefore challenges the propriety of the Amendment abridged his Fifth regarding peti- district court’s conclusions Arizona, pursuant to Edwards v. larceny arraign- tioner’s statements at the 477, 101 peti- ment. district court found that Edwards, (1981).1 In purposes tioner counsel for of a the Fifth Amendment a violation of found however, hearing, preliminary it concluded interroga during custodial did not invoke where, re subsequent to defendant’s tion rights.3 question Fifth Amendment was ob a confession quest a request whether made questioning. In by police-initiated tained question counsel is a mixed of law and fact violation, the finding the constitutional subject to independent and is therefore Court ruled: Bailey this court. v. Hamby, view accused hold that when an now [W]e (6th Cir.1984). Upon review of to have counsel has invoked record, opinion am of the that the interrogation, custodial concluding peti- court district erred be es- of that cannot valid waiver tioner did not his Fifth showing he re- only that tablished arraignment. to counsel at the police-initiated custo- sponded to further interrogation even if he has been dial Maglio Jago, 580 F.2d 202 rights. [Moreover,] an of his advised Cir.1978), thereafter, Bailey and cases see accused, having expressed his desire ... Hamby, 744 F.2d at this court through police only coun- to deal with the given consistently rather than nar- broad sel, subject is not request interpretation to a defendant’s row by until counsel tion the authorities approach em- for counsel. This has been him, to unless 'the made available by in Supreme the Court Jack- braced initiates commu- accused himself further discussing of In the issue nication, son/Bladel. exchanges, or conversations Amendment the waiver Sixth police. with must the noted that “doubts Court at 68 L.Ed.2d 101 S.Ct. Id. of the constitutional be resolved favor ap- Recently, at 386. Edwards has been settled and it concluded “this claim” by plied analogy, on the the basis of Sixth requires approach questions to waiver Amendment, involving requests to cases for narrow, broad, give rather than a us to during arraignment. counsel Michigan interpretation to a defendant’s Jackson/Bladel, 1409. recent counsel.” 106 S.Ct. question 89 L.Ed.2d 631 by recognized not but not addressed the does 1. I note that the Fifth Amendment counsel,” "right specifically Jackson/Bladel, See provide a to 1408 n. Burbine, 412, - n. Moran n. 89 L.Ed.2d 410 S.Ct. the fol 3. Specifically, district court reached the However, Miranda, Supreme the Court held lowing conclusion: privilege against self- that the Fifth Amendment reading transcript the at the first "A fair incorporates right a incrimination did not in- shows interrogation. during custodial right coun- to have voke his Fifth Amendment Edwards, 451 U.S. at S.Ct. at See also Instead, interrogation. during sel right is distinct at 1885. This S.Ct. merely to ask talk to wished to by guaranteed the Amendment. from that Sixth pre- a whether to have him his about advice request issue for counsel 2. The of whether liminary or not.” examination rights arraignment implicates Fifth Amendment Barrett, right they accompa- to were not case of Connecticut statements, by any nied affirmative as in supports proposition that re- Barrett, clarify the petitioner’s pre- which broadly be inter- for counsel should quests regarding representation cise wishes Barrett, In preted. indicate to his intention waive requests for counsel be must held specifically invoked. Petitioner’s state- effect “where the given all-inclusive broad ments, by ordinary people, as understood words, ordinary as defendant’s understood ambiguous are to therefore and entitled them, ambig- are people would understand interpretation. broad Id., 107 at 832. The defend- uous.” Broadly analyzing state- in Barrett was request for counsel ant's indulgence ments for with the constitution- unambiguous, therefore found to be claim, al I am convinced that the state- interpretation, subject to broad because provide adequate peti- ments notice that pur- requests “his limited [for speak tioner desired with an poses of a written ... were statement] dealing prior to further with the authori- accompanied by affirmative announce- peti- ties. would therefore conclude that speak willingness ments of his with the right tioner his Fifth invoked Amendment any Thus doubts authorities.” Id. about interrogation, counsel notwith- regarding wishes precise defendant’s standing request the fact understanding representation or about arraignment.5 reaching made nature of to counsel was conclusion, adopt I decline view by explicit waiver clarified courts, distinguish Fifth some Id., 107 S.Ct. silence. at 833. See request solely for Amendment counsel (Brennan, concurring). However, par- wording it and to whom to counsel with- tial invocation is made.6 may appropriately clarification out such ambiguous.4 considered The determination as to whether an ac his or cused has invoked her Fifth Amend case, contrary In the ma- instant upon ment to counsel should not rest opinion, I it is not jority find that clear that not, clearly, or how he or she whether or petitioner merely requested counsel coun has articulated the reasons for which purposes of a preliminary examination. average person is un sel desired. The record reflects never there exists a Fifth aware that both any regarding made concise statements Amendment to counsel at custodial of his counsel nature and that Miranda, see interrogation, as created judge he was before he restricted supra and a note Sixth so. opportunity had an to do Petitioner’s guarantee dur of the assistance of counsel fragmented statements ing proceedings. undeniably adversary United States equivocal meaning are and their 180, 104 Gouveia, However, 81 not limited. should have been may An if the 146 accused even could be L.Ed.2d rights contemplate a that different construed as limited invocation of the know or right right partial See abo United invocation of the to cise the to counsel. "[A] of more, invariably ambiguous. Wolff, F.Supp. will be It without gives 760 States ex rel. Karr 556 pre- to the (N.D.Ill.1983), rise doubts about defendant's grounds, on 732 vacated other regarding representation cise wishes and about Cir.1984). (7th F.2d 615 understanding his or her scope of the nature Thus, police counsel. to Francis, (11th 728 F.2d 1333 6. Collins v. may partial not infer a from invocation Cir.1984) (Defendant’s request for counsel dur has to counsel alone that defendant ing arraignment did not indicate a desire to any rights specifically waived his or her rights only indi but Fifth Amendment (Brennan, Barrett, at invoked.” concurring). 835 in the Sixth cated that he desired counsel sense, case). See abo to handle his Amendment Watkins, (5th Cir.1982). F.2d (5th Estelle, Cir.1982), Jordan 5. In Silva v. F.2d 457 Estelle, 672 F.2d at 457. telephone But see Silva v. request the court held sel, to coun- that a arraignment, made at constituted an exer-

H39 Court, adopted wording as the U.S. might invoked based on the in Jackson/Bladel: on the fact that the request, or based lawyers judge opposed Although 'judges may a as to un- request is made appreciate the an derstand and subtle dis- request A for counsel is police. the Fifth tinctions between and Sixth he or she an accused that assertion rights Amendment aver- dealings further with help any needs age person does not. When an accused authorities, including custodial requests attorney, po- either a before a request, Any such whether before tion. magistrate, lice or a officer he does not as police, considered judge or the should be know which constitutional he is in- of Fifth Amendment per se invocation voking; he therefore should not be ex- otherwise, rights. To hold based pected exactly why to articulate or for reason- an accused cannot factors which purposes seeking he what is counsel. It deprive ac- contemplate, would ably makes sense little to afford relief from of constitutional of the fullest extent cused interrogation further to a defendant who Marshall com- protection. As Justice attorney, asks a for an officer regarding applicability Ed- mented permit to a defend- implica- Fifth Amendment wards request ant who makes an identical to a arraign- request tions of simple judge. The fact that defendant ment: has indicates that obligation to is under no accused [A]n he sufficiently he does not believe that lawyer. why precisely he wants state capable his dealing with adversaries distinguish cases If were to based we singlehandedly. [39], Mich. request, the wording of an accused’s [56], 365 N.W.2d at 67 [1984]. right to counsel would be value of the My n. 106 S.Ct. at 1409 7. conclusion here As we substantially diminished. opinion is consistent with our C., in Fare v. Michael Campbell, Cir. States 2560, 2568, 61 L.Ed.2d 1983), wherein we held that statements ob request “an an at- accused’s for of secret tained the initiative service per Fifth torney is an invocation his se agents, after a ar in- rights, requiring that all Amendment raignment, violated the defendant’s Sixth [Furthermore], terrogation cease.” ... as right to counsel as well Amendment no safe to assume that it is more against self-incrim Fifth Amendment when an accused waiver valid pursuant Campbell ination Edwards. prior request judge made a proposition stands he has arraignment than when made Fifth for counsel at invokes cases, the police. In both subject are an individual in authori- accused informs prophylactic rule Edwards. ty like an would —and Having in- determined thereafter, officials, ap- yet shortly Fifth Amendment to coun- voked his request, disregarding his ask parently arraignment, the issue of whether sel rights. him to waive preclude Edwards extends to Virginia, questioning Johnson a dif- police-initiated 70 L.Ed.2d offense than that which counsel ferent (Marshall, dissenting denial There (1981) from must considered. be among split authority courts which certiorari). I also with the concur issue,7 and those which reached the Michigan Supreme have reasoning of cent charge right respect to one bars Ed counsel with following extended the 7. The cases have interrogation as to unrelated of- further fenses); even White v. Fink rule to unrelated offenses: wards beiner, Wolff, III), 1982) (White (7th rel. Karr v. 556 United States ex 687 F.2d 885 Cir. (Court rejected Mosley analogy White, F.Supp. at 765 v. 465 sub nom. Fairman vacated right 1075, 1433, defendant who has asserted and held that 79 756 L.Ed.2d ques- Cir.1985) jurisdiction may remand, (7th (Court in one re to counsel 753 540 F.2d jurisdiction by another jected analogy Mosley tioned officers from and held that 1140 10, attorney. 423 to extend Edwards have U.S. at 105 n. 96 S.Ct. at

have declined distinctions or 10; 109-11, on factual done so based 326 n. see also 96 Id. S.Ct. at Michigan analogizing the decisions (White, J., concurring). 329-30 The Court 96, 321, 46 Mosley, 423 U.S. recognized pur- (1975). Mosley, In the Su- Miranda, suant to interroga- bars further propriety considered the preme Court present. tion until counsel is Id. at 104 n. suspect about an unrelated questioning a 10, However, 96 S.Ct. at 326 n. 10. it crime, suspect had invoked his after per no proscription found that such se right to remain silent. Fifth Amendment questioning, by any officers on sub- distinctions between the As I find historical ject, person custody exists when a right silence and the indicated a desire to remain silent. Id. at present Mosley inapposite to the consider 103-04, 96 S.Ct. at 326. The there- case. reinterrogation fore held that is not a viola- Miranda, Supreme Court distin- In right right tion of the to silence where that safeguards procedural guished between “scrupulously honored.” Id. It fur- triggered by request to remain silent and reinterrogation ther found that about an attorney. respect request for an With unrelated offense was not inconsistent with silence, right the court stated that right assertion of the to silence. Id. given, warnings have been the sub- “[o]nce 96 S.Ct. 327. Court clear- clear. If the individu- sequent procedure is indicated, however, ly decision is manner, any any time al indicated in prefaced only analysis proce- on an during questioning, he prior to or dures with an assertion of the involved silent, to remain wishes 7, right to silence. See Id. at 102 n. 96 473, 384 U.S. at 86 S.Ct. at must cease.” contrast, at 325 n. In Edwards The assertion of the procedures sets forth the involved when separate signifi- was considered as a to counsel is In Ed- invoked. separate pro- mandated a cant event which wards, Supreme reconfirmed the cedure: “If the individual states that historical distinction as set forth Mi- attorney, interrogation must wants an gave it Mosley, randa and substantive until an ... If cease by creating per against rule effect se cannot obtain individual police-initiated questioning once the and he indicates that he wants one before 451 to counsel has been invoked.8 U.S. at speaking police, they respect must Mosley 101 S.Ct. at 1885. While 474, decision to remain silent.” Id. at 86 questioning on an unrelated of- involves Mosley, S.Ct. at 1628. fense, applicable by analogy, it is not as its specific to Mi- Court made reference analysis concededly rests on the lesser randa’s distinction the levels of between applicable standard of waiver to the procedural safeguards triggered a re- quest to remain and a for an to silence. silent Routhier, offense); agency unrelated Ariz. another on unrelated matter when those State v. 137 90, (1983); Radovsky Maryland, previous invocation of 669 P.2d 68 officers are unaware (1983); Commonwealth, counsel); 296 Md. 464 A.2d 239 See also McFadden v. 225 Va. Renda, (E.D.Va. Cornethan, (1983); F.Supp. United States v. 487 567 300 S.E.2d 924 State v. Greer, 1983); Wash.App. Kimes v. United States ex rel. 527 1355 See 38 684 P.2d Hammock, (N.D.Ill.1981); F.Supp. People v. Bauguss, 307 also 310 N.C. 311 S.E.2d State Ill.App.3d Newton, (Utah (1984); 460 N.E.2d 121 77 Ill.Dec. 682 P.2d 295 248 State v. 1984). following to extend Ed- have declined the standards of waiv- 8. The distinction between Willie, 410 wards to unrelated offenses: State v. Mosley applied in Edwards and has been er (La.1982) (Edwards against po- So.2d 1019 rule recognized. Udey, widely United States questioning request for coun- lice-initiated after (8th Cir.1984); United States v. inapposite sel officers where different (2nd Cir.1983); Terry, 702 F.2d offenses); ted about unrelated State defendant Franzen, Riley v. 653 F.2d States ex rel. Harriman, (De- (La.App.1983) So.2d Florida, Cir.1981); Christopher v. fendant who has invoked his to counsel on (S.D.Fla.1984). F.Supp. may by questioned one offense officers

H41 questioned suspect after is un- officer who language of Edwards per se irrelevant). quest for counsel is “further precludes It equivocal. until counsel has by the authorities tion application of Edwards in this in- made available.” to the conclusion that the state stance leads interpretation A narrow at 1885. petition- a valid waiver of did not establish questioning on language, permitting this er’s Fifth Amendment counsel. matters, per renders the se as- unrelated Edwards, inquiry, under is whether meaningless and opinion allows pect of the accused initiated conversation with the atmosphere of ten- create an police to invoking his to counsel. police after intimidating suspects into thereby sion clearly petition- The record indicates that rights. An waiving their Fifth police, statement elicited after er’s is an ex- to counsel assertion arraignment. A for counsel that he is not com- by the accused pression by peti- waiver was not established valid the authorities without petent to deal with subsequent signing tioner’s of Miranda advice, decision at the legal thus “a later forms. As the conduct clear- waiver to make a statement insistence authorities’ ly prophylactic rule of Ed- violated may properly be presence counsel’s without wards, improperly the first confession was skepticism.” Mosley, U.S. with viewed and should not have been admit- obtained (White, n. 2 at 329 at 111 n. disposition, trial. As a result of this ted at Edwards, 451 concurring). See also unnecessary to reach the other issues it is This reason- at 1884-85. majority. addressed in the context of equally presuasive ing is I therefore reverse the order of would An offenses. ac- on unrelated questioning remand this case the district court and with has invoked cused who to issue writ of habe- directions greater, subject to the not be should corpus. as indirect, pressures involved coercive more of- numerous unrelated questioning I therefore conclude fenses. would asserted, Ed- right to counsel is

once the preclude police-initiated applies to

wards offenses. unrelated case, police in unlike

Although the

Edwards, were unaware not consider

prior request do HURT, Plaintiff-Appellant, Jerry R. significant. Once a defend- fact to be ant invokes his HEALTH AND OF SECRETARY imputed to all law enforce- knowledge is SERVICES, HUMAN Therefore, the fact ment officials. Defendant-Appellee. interrogating officers are un- invocation is irrelevant No. 86-5483. aware of such question of whether a constitutional Appeals, Court of United States Virgi- right has been violated. Johnson Circuit. Sixth (Mar- nia, 102 S.Ct. at March shall, J., (knowledge Submitted dissenting) er’s April Decided Scalf, imputed police); States III, Cir.1983); 708 F.2d 1540 White 9; ex 887-88 n. United States 687 F.2d at 765; F.Supp. at Wolff,

rel. Karr v. Renda, F.Supp.

United States

487; Kimes ex rel. See also United States Greer, (good faith of F.Supp. at 310

Case Details

Case Name: Robert Lee Boles, Jr. v. Dale Foltz, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 23, 1987

Citation: 816 F.2d 1132

Docket Number: 85-1469

Court Abbreviation: 6th Cir.