*1 McGOWAN, Before LEVENTHAL Judges. MaeKINNON, Circuit prior opinion. noted in 9 of our either test fn. Under *2 407 making request tially from a different CURIAM: PER they attorney. police The state for an replied Appellant of Howard was convicted of to statement indeci- Howard’s felony robbery The and armed murder. up saying appellant by it to was sion felony adjudged sentence the court a they they him then informed that and twenty years to life and murder count of from Keith “had obtained statements robbery conviction of five on the armed (H. Glover, Cooley and Cal [Calhoun]” years. provided twenty The sentence to 61).3 imprisonment to the of that terms concurrently time, other. .he told he with each At that us run (H. he to tell us what knew about it. question Appellant’s the states brief 61). 4 appeal presented on this to be: typewritten police The then took down failing to court err Did trial the over, appellant confession which read alleged suppress con- the defendant’s corrections the draft made it uncontroverted was fession where signed (H. then and it and initialled made his defendant had known that 62-64, 70-72). an intention to consult with wish and had, attorney, question the Government that tes- but There thus the interrogate nevertheless, timony continued to of did the Government contro- appellant’s appellant in the absence of at- the defendant torney, an vert claim that prior elicited confession to and wish and intention “made known his making attorney introducing attorney” by an available with consult an testimony he “un- that he indicated was defendant?1 attorney an then decided” about and difficulty of formulation give voluntary going state- forward evi- the issue is that the Government’s ment. hearing suppression dence, both at testimony do not overlook the We trial, did at controvert the claim pretrial suppression hear- Howard appellant his “made known that wish 5 ing in he he for which testified asked attorney.” consult with an (H. 95). attorney He further an testi- At the Gov- maybe police- told fied that he was testimony po- introduced ernment questions his men could answer and that that after lice officers to the effect lawyer on a before he if he insisted rights duly pellant was advised of probably made a statement it would (it that he number is admitted times delay much four the matter as as rights by police duly advised months magistrate), ini- officers tially indicated he was undecided wheth- also note on cross- We police er he talk officers should freely admitted that he was examination whether he should wait until had an duly rights and “under- advised of attorney: . “. . whether he should (H. 98, 103): them” stood Raleigh there in or wait attorney, to an that if he could not af- Washington, D. until he came back to police make ford “would Being (H. 77-78).2 60, 72-73, C.” unde- appointed [him],” be for one would sure getting cided is substan- about not “have to did answer Cooley 1. The in an inter- confession taken Calhoun were co-defendants police department at (H. room of the 3). view Raleigh, Carolina, two North detec- police was the This police tives from the District of Columbia department. officer. Raleigh member of throughout. present Appellant trial. force was not take the stand at did (H. -) 2. The reference indicates tran- script suppression hearing. from the proper regard question, rights some wanted to answer for of the in- [he] answering any stop only could dividuals involved. The case that [he] “nobody presents
time,” any problem mistreated” Court at (H. 99, Howard, admitted all him He also case of and in the promptly Howard, taken before fully that he been instance not had I do ac- *3 of magistrate cept magistrate, testimony, had that the his in view the of fact including rights, light his testimony him that in the advised “right of of attorney” officers, that at happened and that to an I believe what writing right he had waived is that time Mr. Howard ruminated about (H. 99-100). any attorney ought perhaps to not to lawyer, go have a he decided to ahead surrounding the situation The factual get with, give and it over and present- taking well of the confession performance statement. His whole following from ed extract How- respect initialing with to and the han- ard’s cross-examination: dling of the and the man- Q you to You knew had runs, ner in which the statement lawyer? you freely running which can see is a confession, and not forced confes- right. Yes, A I knew I had a any way, sion in leads Court to Q you have to knew didn’t You any oppres- feel that in the of absence a word ? without siveness—and I find none this case A Yes. he, —that whatever his earlier com- may been, have ments determined that Q they you And knew wouldn’t give he would it over with and anything you, beat out of is that cor- statement, when he learned that oth- that, did rect? You didn’t fear ers who were him in with involved you? given offense had statements. I do Being A beaten? any legal not believe that it violates requirement to tell a man that other Q you up get a confession Beat to given, have statements' been in fact you? out of given. those statements have been No, A didn’t I fear that. Where that device is used when no given, statements have been Q I think a worry You had no about that at problem exists; wholly different but all? instance, in this had statements been being A Not about beaten. given and statements of the offi- Q gave you any- respect genuine. But a statement cers with are that (Emphasis added, 110-111). way lawyer? H. without a credibility recog- Since is involved we (H. Yes, 105). I did. superior position nize the of the trial perfectly It is clear that the confession judge to determine where the truth lies. was not forced not does so clearly His also remarks forth the set contend. basis for his determination. It uni- recognized versally opportunity that testimony, As for the conflict in the places to see and hear the witnesses him clearly that judge for the trial preferential weigh position in a in- adjudge and he resolved it in favor of testimony. court note We also that the Government as follows: years age Howard 23 at the time THE Well, COURT: I am not interrogation, that he had served going suppress any years these state- 2 in the Marine States ments. The Court is inclined to Corps, being feel detailed to electronics com- proceeded the officers have with munications, connection with repre- got D. C. there he had been it would be before he back to a court-martial (H. (H. assigned Manning say. counsel 100- Detective couldn’t sented something Manning 101). Lawyers told defendant new Detective not him. had obtained statements others, and “seemed three Appellant contends that the Govern- prehensive point.” Detective at pro- brief, which deals ment Manning the title showed defendant admitting goes confession, priety of (but signatures, page con- not the beyond tents) statements, then read the three the trial which cites warrant, him “At that the arrest and: stronger Gov- in favor claims is time, he us he tell us told ernment. He contends Govern- what he knew about it.” *4 testimony to reference to trial ment’s typewrit- at a statement was taken down ruling improper, support court’s the iner answer form. to overrule while the ultimate decision Manning asked, on Detective objection appellant’s admission cross-examination: was made at the trial the confession appeal (Tr. 61-62). have On this we “Q. Did he ever ask at time of the our determination issue made present provide anyone him with of the evidence that was the basis attorney. an hearing presented suppression did A. No he not.” adequately supports it and we find that the decision of trial court. Girault was After Detective Jack prosecutor questioned to the as Affirmed. defendant’s corrections 72): (Tr. thereon, the asked Court Judge (concur- LEVENTHAL, Circuit Officer, during the THE COURT: ring) : there, he he was after entire time that jail, brought up think case is not without diffi- what I this was, however, culty. anything It established at this man about did lawyer ? rights remain was advised si- —to at one He time THE WITNESS: assigned lent, and to have before counsel something know he didn’t about stated making only by any statement —not get lawyer down should whether he Raleigh, N.C., police in who arrested until or wait in North Carolina there him, by magistrate in Ral- but also ad- to the District. We he came back rights eigh. The were reiterated make the that we couldn’t vised him officers, Man- District Detectives him, he would have decision for ning plain Girault, who were in he to whether to make decision as clothes, who interviewed him after lawyer or him- there here wanted a he extradition. Detective waived Wil- there, we one If wanted he self. Manning, who liam conducted most of get arrangements to one would make interview, that defendant testified for him. he he didn’t “said that know I it he take THE And COURT: attorney.” should wait until he had an for a ? never asked he “He said that didn’t know whether that, get Raleigh Not after should there THE WITNESS: making initial state- Washing- not after or wait until came back get one should ment of whether he replied ton, Manning D. C.” Detective here, upor there sir. prerogative, and “If that this was his lawyer, try reading we would re- of fair inquired a case where lawyer.” soon this is how veals that Defendant known did make instance first consult desire his only question —the L. and Ellen CORNING GLASS WORKS Raleigh where, being Mochel, Appellants, Manning Washington. Then Detective v. the information moved forward BRENNER, Edward J. Commissioner others, the confessions about Patents, Appellee. signatures, and read their showed the Government As and Ellen L. warrant. CORNING GLASS WORKS arrest Mochel, Appellants, turning appar- says: point “The brief appellant saw the other v. ently came when (Typed Br. SCHUYLER, Jr., confessions.” E. William Commission Patents, Appellee. er of says Miranda, Supreme Court In 71-1424, Nos. 71-1425. fully effective means other that unless Appeals, persons of inform States Court of devised to accused are District of Columbia Circuit. silence, the law enforce- their questioning prior must ment officers Argued 12, June rights to silent advise him of his remain 16, Decided Oct. presence attorney. and to the of an 26, Rehearing Denied Jan. *5 may voluntary, make intelli- rights. gent knowing waiver
“If, any however, he manner indicates stage process that he
and at attorney with an be-
wishes to consult speaking question-
fore there be can
ing.”
Since defendant did indicate he want- attorney, place other, one or the ed required say expressly
hewas also speaking
wanted an before
Raleigh? Under Miranda man who says ques- wants can’t be difficulty
tioned. I have some
pursuing says man who he wants an
attorney through advising the means of others, him the confessions in the
hope might led, that he be as he was in case, he wanted to tell what knew, respond questions.
In this case what leads me in the last
analysis to concur in the result is the
fact defendant had been advised of only by to counsel not a law officer, judi-
enforcement but also judicial
cial officer. In the context of a
warning, background and defendant’s experience, I think the facts suffi-
ciently establish a voluntary, knowing, intelligent rights. waiver of
And I have no doubt that the confession voluntary.