*2 WELLFORD, Before MARTIN and Cir FAIRCHILD, cuit and Judges, Senior Cir Judge.* cuit FAIRCHILD, Judge. Senior Circuit was Bentley Defendant convicted two appealed. counts of bank robbery. He In motion, trial response to counsel’s this court appointed attorney represent different Bentley appeal and instructed that “ap- pellant’s brief a discussion ad- [include] dressing [1] whether the defendant’s oral was properly confession admitted when it apparently given was in the absence of counsel after the defendant had already present; to have counsel exercised [2] whether any objection admission of the oral confession waived was defense counsel’s failure to to [its] admission...; [3] whether .the defend- ant ineffective received assistance coun- sel particularly his assistance related to taking of defendant’s admission oral confession.” I. only evidence of the circumstances
surrounding -defendant’s confession oral Special Agent the trial of FBI Agent Williams. Williams described a se- Bentley ries of conversations he had with County the Hamilton Jail Cincinnati Bentley where was held on a state being robbery charge. bank interviews, Prior to the first of these testified Williams he contacted federal attorney state court court —later Osborne, explained —Mr. to talk Bentley wanted “his robberies,” involvement in several bank time when both meet arranged they could Bentley. Williams On March sat down with the defendant Osborne Melcher, argued, David E. Cynthiana, jail. Agent at the Williams advised Bent- Ky., defendant-appellant. for Arizona, ley of his under Miranda Grant, DiPuccio, Cheryl argued, D. John Ohio, Cincinnati,
Asst. Attys., (1966), waiver of Bent- plaintiff-appellee. rights form. Williams then informed * Circuit, Fairchild, sitting by designation. E. Honorable Thomas Senior Seventh Judge, Appeals United States Court of for the he doesn’t has indicated after the defendant suspected robberies he
ley of the response, conferring privately questioned.” to be want committing. After that he Wil- argued stated attorney, government with his The inter- say.” stressing that before anything properly, “did not acted liams view ended. attor- he notified defendant’s each session Bentley and his intent to interview ney of Os- Williams called following day *3 rights from signed a waiver obtained intended to him that he borne and informed questioning. Bentley proceeding before the second Bentley again on interview be- also the distinction emphasized Counsel stated that April at ten o’clock. Osborne Bentley where case present tween to be try “if it he would possible was interroga- counsel at an earlier benefit of jail county arrived at the there.” Williams re- a defendant and the case where tion not, the interview time, did Osborne interrogation the first attorney an quests again Bentley advised proceeded. Williams Judge Spiegel asked given is not one. but signed of his and obtained rights Miranda to “anything if he had Bentley’s counsel what, The record does not disclose waiver. Bent- then conferred with offer.” Osborne ab- anything, if was said about Osborne’s told to “that what’s been ley responded if “he was Bentley sence. asked Williams accurate.” the Court is regarding the story to tell me the ready him of commit- suspected robberies that I indicating hesitancy testify to
ting.” After
II.
Bentley confessed
against
partner,
his
interviews,
the third
are three
At issue
in both robberies.
participated
At the first
phases.
divided into two
being
3, 1980, Williams
day, April
The next
in-
present
was
interview counsel
notifying
jail again
to the
after
returned
—
Agent. Bentley
consulted
stance of
interview Bent-
of his intent
to
Osborne
At
remain silent.
with counsel and chose to
of his Miranda
the defendant
ley—advised
absent,
was
interview counsel
the second
Wil-
signed
waiver.
rights, and obtained
pro-
although he had been notified
he was “interested in
explained
liams
signed a waiver
posed
Bentley
interview.
Bentley
confession.”
getting
signed
then made in-
rights
his Miranda
in-
sign
confessing
to
a statement
agreed
phase
At the first
criminating statements.
in the two robberies. Williams
volvement
(with
interview
counsel
Bentley
of the third
Bent-
began
then
to write a statement
for
to
absent) again
agreed
a waiver and
finishing,
was
ley
sign.
to
As Williams
arrived
a confession.
counsel
sign
After
he wanted to talk
Osborne arrived and said
sign.
conferred, Bentley refused
be-
private
to his client. A
conversation
initia-
Bentley
indication that
There is no
followed, after
tween Osborne and
ar-
interview and
ted the second
“that he did not
the defendant stated
which
rule”'
the so-called “Edwards
gues
nor did he wish
sign
wish to
that statement
testi-
Agent’s
therefore establishes that the
against
partner.”
testify
at the second
as to his oral confession
mony
pretrial
made no
motion
The defense
was inadmissible.
interview
See Edwards
testimony con-
suppress Agent Williams’
Arizona,
confession, nor did
oral
cerning Bentley’s
testimony at
to Williams’
Osborne
rule”
agree
that the “Edwards
We do
as to the admission
only question
trial.
the facts before us.
applies raised
agent’s testimony
sponte.
trial court sua
Edwards,
stopped questioning
police
he asked for an
the accused after
in the middle of Wil-
Declaring a recess
told
following day and
but returned the
called coun-
testimony, Judge Spiegel
liams’
read
talk. Police then
Edwards “he had” to
as to
expressed doubt
sel into chambers and
to make
agreed
and he
and Edwards
go
“to
back
authority
agent
found
Supreme
Court
the defendant
statement.
seeking
continue
H27
violation
has
confession was taken in
The Court
characterized the
Edwards’
Edwards
rule,
Fifth and
rule as “a
prophylactic
designed
to counsel under the
of his
protect
police
held
an accused in
from
custody
Amendments. The
Fourteenth
Court
being badgered by police officers in the
that:
manner in which
defendant
in Edwards
right to
an accused has invoked his
-
Bradshaw,
-,
was.”
U.S. at
in-
present
custodial
during
S.Ct. at 2834.
a valid waiver of
terrogation,
showing only
be established by
cannot
The manner
Wil
which
responded
police-initia-
that he
to further
conducted himself was
dif
markedly
liams
if he
even
has
interrogation
ted custodial
arranged
ferent. He
presence
counsel’s
advised of his
further
been
We
at the first interview.1 He notified counsel
Edwards,
that an accused
hold
such as
of his
to hold the
intention
second and third
expressed
deal with
having
his desire to
interviews, receiving
vague
con
response
counsel,
only
is not
police
through
cerning counsel’s intentions to be present.
*4
by
to further
the
subject
interrogation
Although the record does not
what
show
until counsel has
made
authorities
been
agent
Bentley
the
said about counsel’s
him,
to
him-
available
unless the accused
absence,
is
nothing
there
to indicate
communication,
self initiates further
ex-
agent
any
the
made
misleading statements.
police.
or
the
changes
conversations with
impact
(as
We view
of
ex-
the
Edwards
Edwards,
484-85,
Given the Edwards facts —an initial re- to having Williams testified advised Bent- followed, quest provision for counsel Williams ley testify his did not before counsel, by an interview insis- Bentley somewhat what either he or said Mr. about absence, by police Supreme initiated the tently Bentley Osborne’s or whether indi- —the would prosecution any preference present. Court decided cated to have him permitted support admissibility by not be to No was offered as to does, demonstrating knowing intelligent experience. education or The record right right however, waiver to counsel to show that on the two occasions remain silent unless it first that the had the proved Bentley benefit of consulta- counsel, accused himself initiated further com- tion decided to remain munication. readily silent. inference drawn from The precedent sug- (1983). Supreme 1. in this least Past Circuit at F.2d 1277 The Court has this gests Solem, required Williams in the first it. See was not Stumes v. issue before 671 F.2d cert, - notify Bentley’s instance state court granted, Cir.1982), (8th 1150 questions of his intent to ask the defendant -, 3568, (1983). 77 103 S.Ct. L.Ed.2d 1409 possible involvement in federal crimes. We do not wait direction from these cases Reynolds, See United States v. F.2d 158 496 (1) Edwards because we find the rule is other- Dority, Cir.1974); 487 applicable (2) the wise not to this case and (6th Cir.1973). F.2d 846 retroactivity question appear would not raised, assuming may Johnson standard be apply Edwards should whether where, case, used in Fifth Amendment retroactively principles in under the enunciated here, yet time the case was not final at the Johnson, 537, United States v. 457 U.S. Johnson, 102 S.Ct. Edwards was decided. See 2579, (1982), presently is S.Ct. at 2594. Engle, study this Circuit. Rose v. under of a waiver form determinative. We remain silent choices to counseled past find the defendant’s also to decline solely on the rely disquieting makes it indicative of the by counsel representation
signed waivers. right nature of his waiver intelligent “heavy bears government in- subsequent silence at and to to counsel volun establishing burden indicated, already his Indeed, as terviews. intelligently knowingly and waived tarily, when counsel was silent decisions to remain and to counsel.” right silence Miran conclu- support opposite present would 475, (citing da, at 384 U.S. at sion. Illinois, 490 & n. 378 U.S. Escobedo v. us we are unable the record before On 12 L.Ed.2d 1765 & n. 84 S.Ct. voluntarily, know- determine Louisiana, (1964)). Tague also See waived intelligently ingly 652, 653, 469, 470-71, 100 S.Ct. during questioning present have counsel But (1980); North Carolina v. silent. and to remain 1755,1757, ler, 369, 373, the accused has Where L.Ed.2d III. view that he is
“expressed his own
with the authorities with
competent to deal
even if
contends that
government
advice,
a later decision
legal
out
record does not demonstrate
present
a statement
insistence to make
authorities’
intelligent waiver
knowing and
(cid:127)
be
presence may properly
without counsel’s
silence, the defendant
and to
to counsel
v. Mos
skepticism.” Michigan
viewed with
failing
any
waived
defect
*5
321,
96,110
2, 96
329 n.
ley, 423 U.S.
n.
S.Ct.
the district
Bentley contends
trial.
J.,
2,
concur
(1975) (White,
inquiry
making
in not
a further
court erred
ring).
attorney’s failure
and that his
sponte,
sua
to ineffective assistance
amounted
asserts that
is
government
The
“[i]t
of counsel.
[Bentley’s]
confession was
obvious ...
choice of his own free will.”
intelligent
Denno,
368,
378
In Jackson v.
the
It
had
bene
emphasized
is
1774,
(1964),
908
the
12 L.Ed.2d
during
proceedings
fit of
state court
counsel
a criminal
recognized that
Supreme Court
of his interviews with
during
the first
a
right
a constitutional
defendant has
Williams,
Agent
Bentley signed
and that
a
of
and a reliable determination
hearing
fair
three
waiver of
form at each of his
18
of a confession. See
the voluntariness
requires
interviews.
of these facts
Neither
Failure to raise a
(1976).
3501
U.S.C. §
waiver, however. As
finding
the
of a valid
admission of
objection to
contemporaneous
waivers, the
Supreme
to the
Court
confession, however,
results in
ordinarily
in
v. Butler:
stated
North Carolina
in
right
to a voluntariness
waiver of the
or oral statement
express
An
written
72,
v.
433 U.S.
quiry. Wainwright
Sykes,
silent or
right
of waiver of the
to remain
86,
2497, 2506,
594
53 L.Ed.2d
S.Ct.
usually strong
to counsel is
Renteria, 625 F.2d
v.
(1977); United States
waiver,
is
the
of that
but
proof
validity
of
1279,
Cir.1980). The trial court
or suffi-
necessary
either
inevitably
not
to raise the
may
duty
be found to have a
The
cient to establish waiver.
only
on its own
issue of voluntariness
form,
the
rather whether
not one of
but
reflects a
“clearly
question”
evidence
the
knowingly and volun-
defendant
in fact
a confession.
nature of
voluntary
about the
in the
rights delineated
tarily waived the
Renteria,
F.2d at 1283. See also
See
case.
Miranda
Powe,
833,
591 F.2d
842-43
v.
United States
“alerting circum
(certain
373,
(D.C.Cir.1978)
at 1757. We
441 U.S. at
S.Ct.
duty
investigate
may impose
stances”
the other doubts
say
light
cannot
in
of
confession).3 Although
of
signature
voluntariness
in this case that
raised
a trial court
general
in
Fourth Circuit where
exception
can be
found
the
to this
rule
3. An
this
has been found where
duty typically
keeping
fendant
the confession out of the
may
evidence
a confession
have
if
properly present
indicated
record
was obvious.
given
amounting
been
under circumstances
Accordingly,
plain
we deem it
error
the
coercion,
the
overt
we think
same rule
inquired
court not to have
further into the
here,
where,
should
serious doubts
apply
issue of defendant’s waiver. See Fed.R.
are
as to defendant’s
knowing
raised
52(b).
Clark
Jago,
Crim.P.
Cf.
v.
676 F.2d
intelligent
of his
relinquishment
Miranda 1099,
(6th Cir.1982)
1110-13
(remanding
suppression hearing
case for
where trial
engage
court failed
sufficient factfind-
objec-
Even in the absence of
defense
ing
inquire
or
whether waiver
knowing
was
tion,
the
raised
questions
defendant’s
intelligent
or
in determining sufficiency of
refusal to waive when he had the
benefit
defendant’s waiver
counsel
the
should have alerted
court to the
custodial
during
interrogation).
need to
further into the circum-
inquire
stances.
inexplicable
Counsel’s
failure to
IV.
object should have
that need.4
emphasized
Powe,
about no Appellant several witnesses. wore
mask; hair, had long, flowing he and the distinctive,
two easily recognizable used
care in effectuating robbery and the
get-away. accomplice appellant were fellow
employees appellant’s counsel conceded cooperated appellant pleaded
guilty prior involving similar charge, loan,
robbery savings in which the
accomplice apparently was also involved.
Appellant changed his appearance sub-
stantially trial with a haircut,” (Jt.App. 84)
“close-cut in con-
trast long to his hair1 at the time of the Yet
robbery. appellant at was unequi-
vocably eyewitness, identified anby despite
the changed appearance, after he had on day robbery a face-to-face con-
frontation of ten minutes. I
Accordingly, would affirm the convic- respects.
tion in all BIRCHFIELD,
Deborah J. Administra- trix, Birchfield, Estate of William K.
Deceased, Plaintiff-Appellant,
INTERNATIONAL HARVESTER
COMPANY, Defendant-Appellee.
No. 81-3105. Appeals,
United States Court of
Sixth Circuit.
Argued June
Decided Feb. having 71). suspect App. 1. One witness described the longer length.” (Jt. hair “a little than shoulder