Michael T. Smith v. Roger v. Endell, Commissioner of the Department of Corrections, State of Alaska

860 F.2d 1528 57 USLW 2375 Michael T. SMITH, Petitioner-Appellant, v. Roger V. ENDELL, Commissioner of the Department of Corrections, State of Alaska, Respondent-Appellee. No. 86-4357. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 1, 1988. Decided Nov. 14, 1988. Peggy A. Roston, Bankston, McCollum & Fossey, Anchorage, Alaska, for petitioner-appellant. W.H. Hawley, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, Alaska, for respondent-appellee. Appeal from the United States District Court for the District of Alaska. Before BROWNING, NORRIS and O'SCANNLAIN, Circuit Judges. JAMES R. BROWNING, Circuit Judge: 1 Smith was convicted in the Superior Court of the State of Alaska for the murder of Ron and Darcelle Cole. He appealed to the Alaska Court of Appeals asserting, among other claims, that the Superior Court failed, in violation of rules established in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), to suppress a confession obtained in the absence of counsel through in-custody, police-initiated interrogation after Smith had requested an attorney. The Alaska Court of Appeals affirmed; the Supreme Court…

Smith was convicted in the Superior Court of the State of Alaska for the murder of Ron and Darcelle Cole. He appealed to the Alaska Court of Appeals asserting, among other claims, that the Superior Court failed, in violation of rules established in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), to suppress a confession obtained in the absence of counsel through in-custody, police-initiated interrogation after Smith had requested an attorney. The Alaska Court of Appeals affirmed; the Supreme Court of Alaska denied review. The United States District Court for the District of Alaska dismissed Smith’s petition for habeas corpus. This appeal followed.

I

The governing law is clear. Under Miranda a person in custody must be informed prior to interrogation that he has a right to remain silent and to have a lawyer present. Miranda v. Arizona, 384 U.S. at 479 , 86 S.Ct. at 1630 . If he requests counsel, interrogation must cease until an attorney is available. Id. at 474 , 86 S.Ct. at 1628 . Not only must all questioning stop when a suspect expresses his desire for counsel, but questioning can be resumed without a lawyer only if the suspect himself initiates…

dissenting:

As I read the record in this case, defendant Smith never invoked his right to counsel after having been given unrestricted opportunity to do so. At most he was “thinking out loud” while making up his mind in a clearly non-coercive situation. In the Miranda-Edwards-Fouche I-Fouche-II context, I would summarize the record as comprising an initial Mi randa waiver as the interrogation begins, a later ambiguous request for counsel 1 followed by clarifying questions, after which it becomes clear that defendant never did invoke his right to counsel. Therefore, I must dissent from the majority’s decision to require suppression of the confession. I would concur in the four preceding court decisions (two Alaska state courts, a federal magistrate, and a federal district judge), which found no constitutional bar to the admissibility of Smith’s confession.

The key issue is, of course, whether Smith’s statements were sufficient, as a matter of constitutional law, to invoke his right to counsel. If Smith had stopped after “Can I talk to a lawyer?,” he would have invoked unambiguously his fifth and fourteenth amendment rights and no doubt the Alaska troopers, following Miranda and…