On petition for writ of certiorari to the Supreme Court of
Arizona.
The petition for a writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 227, 2950, 49 L. Ed. 2d 859 (1976), I would grant
certiorari and vacate the death sentence in this case. Even if I
felt otherwise, however, I would grant certiorari in this case
because the underlying conviction raises grave constitutional
issues.
I
At stake in this case are the limits the Fifth Amendment places
on official custodial interrogation of an accused who has invoked
the right to assistance of counsel. See Solem v. Stumes,
465 U.S. 638 (1984);
Oregon v. Bradshaw,
462 U.S. 1039 (1983);
Edwards v. Arizona,
451 U.S. 477 (1981).
Admitting certain incriminating evidence against petitioner James
in this case, the
Page 469 U.S.
990 , 991
Arizona trial court ignored the principles of Edwards and its
progeny. To affirm the trial court, the Arizona Supreme Court
applied Edwards and Bradshaw in a way that departs substantially
from our intendment in those cases and merits plenary review.
Because Arizona plans to execute James if this constitutionally
infirm conviction stands, our responsibility to undertake review is
clear.
II
On November 19, 1981, Phoenix police officers arrested James for
the murder of Juan Maya. Shortly after the arrest, Officer Davis of
the Phoenix force escorted James to a small, windowless room and
began an interrogation. Officer Davis read James his Miranda rights
and then informed him that he would be charged with first-degree
murder. Tr. 5-7 ( Aug. 27, 1982). About 19 minutes into the
interrogation, James asked Davis what would happen with respect to
the murder charge. Davis responded that if James was found guilty
the result would be up to the court. James appears to have
perceived this statement as an intimation that capital punishment
was possible, because at this point he made his first request for
an attorney. Id., at 9-10 (Sept. 3, 1982). Instead of terminating
the interrogation, the officer continued to press James to make
some kind of a statement; Davis told James he was "only trying to
get the facts of the case and giving [James] the opportunity to
tell his side of it too." Id., at 8-10. According to the subsequent
testimony of Officer Davis, James' response was hesitant and
uncertain. He first suggested he might be willing to proceed
without an attorney but then reversed himself and requested an
attorney once again. Ibid. This second request for an attorney
prompted Officer Davis to pick up his papers, stand and open the
door. As he opened the door he encountered Sergeant Midkiff, the
officer supervising this investigation, who was standing just
outside. Id., at 10-11. As soon as he saw Officer Davis, Midkiff
asked " is he going to show us where the body is?" Id., at 44 (Aug.
27, 1982). Midkiff later testified that he stood close to James
when asking this question. Midkiff also testified that James "might
have assumed" the question was intended for him. Id., at 52-53.
Officer Davis and James responded to Midkiff's inquiry
simultaneously. As Davis told Midkiff that James had invoked his
right to counsel, James said "I'll show you where the body is."
Id., at 44-45. Midkiff immediately asked James where the body was
and James
Page 469 U.S.
990 , 992
responded that it was approximately 100 miles from Phoenix. Id.,
at 44-47 . Neither officer made any effort to remind James of his
right to counsel and neither sought an express oral or written
waiver of that right.
Instead of providing James with an attorney, the officers
readied a police car for a trip to the site of Juan Maya's body.
Sergeant Midkiff instructed all officers to refrain from
questioning James while the car was being readied. Id., at 57.
Midkiff also phoned a prosecutor for advice on whether, in light of
James' request for an attorney, the officers should proceed with
the proposed journey. The prosecutor told Midkiff to proceed. Davis
then escorted James to the patrol car and requested directions to
the site of the body. Id., at 55-56. James obliged and led Davis to
an abandoned mine shaft about 100 miles from Phoenix. At the base
of the shaft the officers found the body of Juan Maya. Id., at
53-55.
At his trial for capital murder James sought to suppress the
incriminating statements but the trial court held the statements
admissible. 141 Ariz. 141,
685 P.2d 1293
(1984). James was convicted and sentenced to death. The Arizona
Supreme Court affirmed the conviction and sentence. James then
petitioned this Court for certiorari. While the petition was under
consideration, the State of Arizona set James' execution date for
October 3, 1984. The Arizona Supreme Court denied a stay of
execution pending this Court's disposition of the petition for
certiorari. Justice REHNQUIST granted a stay of execution to permit
consideration of the petition.
III
When an accused in custody requests the assistance of counsel
the Fifth Amendment requires that all "interrogation must cease
until an attorney is present." Miranda v. Arizona,
384 U.S.
436, 474, 1628 (1966). To ensure that officials scrupulously
honor this right, we have established in Edwards v. Arizona, supra,
and Oregon v. Bradshaw, supra, the stringent rule that an accused
who has invoked his Fifth Amendment right to assistance of counsel
cannot be subject to official custodial interrogation unless and
until the accused ( 1) "initiates" further discussions relating to
the investigation, and (2) makes a knowing and intelligent waiver
of the right to counsel under the standard of Johnson v. Zerbst,
304 U.S.
458, 464, 1023 (1938), and its progeny. See Solem v. Stumes,
465
Page 469 U.S.
990 , 993
U.S. 638 (1984). Under this approach, an accused's initiating
statement is admissible if it is voluntary and not made in response
to interrogation, Edwards, 451 U.S., at 485-486, 101 S.Ct ., at
1885, but the accused's subsequent responses to interrogation are
admissible only if the accused has, after the initiation, made a
knowing and intelligent waiver of the right to counsel.
In this case James twice invoked his right to counsel during the
course of interrogation; James "expressed his own view" that he was
"not competent to deal with the authorities without legal advice."
Michigan v. Mosley,
423 U.S. 96, 110, n. 2,
329, n. 2 ( 1975) (WHITE, J., concurring). The statement he made
only a few seconds after requesting counsel for the second
time-"I'll show you where the body is"-was therefore properly
admitted into evidence only if it was a voluntary initiation of new
discussions. The follow up colloquy that led to discovery of the
body was properly admitted into evidence only if that statement was
an initiation and if, prior to further official questions and
James' responses to those questions, James knowingly and
intelligently waived his previously invoked right to counsel.
1. "Initiation." Under the strict rule of Edwards and
Bradshaw once an accused has invoked the right to counsel no
further interrogation is permitted until the accused initiates a
new dialogue with the authorities. Solem v. Stumes, supra, 465
U.S., at 646. Sergeant Midkiff's query "[i]s he going to show us
where the body is," though directed at Officer Davis, indisputably
triggered James' statement "I'll show you where the body is." That
James made the statement in response to Midkiff's inquiry is not,
however, determinative of the "initiation" question. If Midkiff's
inquiry is not viewed as interrogation for Fifth Amendment
purposes, then James' response might be a voluntary initiation of
dialogue. Some official statements made within earshot of an
accused in custody are not "interrogation" even if they prompt a
response. In Rhode Island v. Innis,
446 U.S. 291 (1980), the
Court held:
"[T]he Miranda safeguards come into
play whenever a person in custody is subjected to either express
questioning or its functional equivalent. That is to say, the
term's 'interrogation' under Miranda refers not only to express
questioning, but also to any words or actions on the part of the
police (other than those normally attendant to arrest and custody)
that the
Page 469 U.S.
990 , 994
police should know are reasonably likely to elicit an
incriminating response from the suspect." Id., at 300-301-1690 (
footnotes omitted).
The Innis approach "focuses primarily upon the perceptions of
the suspect," id., at 301, and mandates inquiry into whether the
words or actions of the authorities bring to bear any coercive
pressure "above and beyond that inherent in custody itself." Id.,
at 300. Consonant with the approach in Miranda, this inquiry "
vest[s the] suspect in custody with an added measure of protection
against coercive police practices, without regard to objective
proof of the underlying intent of the police." 446 U.S., at 301.
This perspective is tempered, Innis makes clear, to the extent that
the police ought not be "held accountable for the unforeseeable
results of their words or actions." Id., at 302 (emphasis added ).
In general, though, Innis defines interrogation broadly and
flexibly in recognition of the enhanced coercive pressures that
official words or conduct may impose on an accused in the
"interrogation environment . . . created for no purpose other than
to subjugate the individual to the will of his examiner." Miranda,
supra, 384 U.S., at 457.
At the suppression hearing, the state trial court made no
findings as to whether James' statement was an "initiation" under
Edwards or a response to interrogation as defined in Innis. The
court merely concluded without explanation that James had "
'knowingly, willingly, and voluntarily made' the statement." 141
Ariz., at 145, 685 P.2d, at 1297 ( quoting unpublished trial court
minute order). Under Edwards, of course, a statement could be made
knowingly, willingly and voluntarily and yet be inadmissible
because the statement was obtained in response to interrogation
occurring after an accused had invoked the right to counsel and
absent any initiation of new dialogue by the accused. Edwards,
supra, 451 U.S., at 485 ("[I]t is inconsistent with Miranda and its
progeny for the authorities, at their instance, to reinterrogate an
accused in custody if he has clearly asserted his right to
counsel"). Thus the trial court finding is of no relevance to the
"initiation" inquiry that Edwards and Bradshaw mandate.
The Arizona Supreme Court endeavored to paper over this
deficiency. Acknowledging the trial court's failure to make the
requisite finding of initiation-and subsidiary failure to determine
whether Midkiff's question was "interrogation" under Innis -the
court held that such a finding was nonetheless "implicit" in
the
Page 469 U.S.
990 , 995
lower court decision. 141 Ariz., at 145, 685 P.2d, at 1297. The
following four assertions encompass the entirety of the State
Supreme Court's justification for this divination of the "implicit"
finding:
"
Page 469
U.S. 990 , 1
There was uncontradicted testimony that James understood his
rights.
Page 469
U.S. 990 , 2
There was uncontradicted testimony that Midkiff's question was
meant solely for Davis.
Page 469
U.S. 990 , 3
Although the [trial] court did not employ all of the proper
'buzz words,' the record indicates that James made a decision to
cooperate with the police without benefit of counsel, and
Page 469
U.S. 990 , 4
his statement fits either definition of 'initiate' in Bradshaw."
Ibid.
Three of these stated reasons have no bearing on the
determinative question whether James spoke the first incriminating
words on his own initiative or in response to interrogation. That
James knew his rights has no relevance to whether Midkiff's inquiry
should be viewed as interrogation. That James "made a decision to
cooperate" is similarly irrelevant: if his "decision to cooperate"
was prompted by interrogation occurring after he invoked his right
to counsel, and absent an intervening " initiation," any
cooperative statements he made are inadmissible under Edwards. The
court's claim that James' statement was initiation "under either
definition of the term in Bradshaw " is also inapposite to the "
interrogation" aspect of the initiation analysis. In Bradshaw the
plurality and dissent disagreed over how related to the subject of
the investigation the initiating statement need be to justify
resumption of official interrogation. The plurality suggested an
expansive view of what might qualify as initiation, 462 U.S., at
1045-2835, and the dissent proposed a much more circumscribed view.
Id., at 1053- 1054 (MARSHALL, J., dissenting). The statement in
this case was sufficiently related under either view expressed in
Bradshaw but this fact has nothing to do with whether the statement
was made in response to interrogation.
The only potentially relevant reason the state court gave for
perceiving an implicit finding of "initiation" was the purportedly
uncontradicted testimony that Sergeant Midkiff directed his inquiry
at Officer Davis and not at James. This assertion, even if valid,
provides little support for the conclusion that James' statement
was an independent " initiation." The proper inquiry under Innis is
whether the official should know that the statement is reasonably
likely to elicit an incriminating response from the
Page 469 U.S.
990 , 996
suspect. Innis, 446 U.S., at 301. A bare finding that Midkiff
directed his question to Davis and not to James is but the
beginning of the Innis inquiry; had the officer directed the
question to James, "interrogation" vel non would not be an issue.
The question that must be answered under Innis is whether Midkiff's
statement, though not aimed at James, should be viewed as the
"functional equivalent" of interrogation in these circumstances
because Midkiff should have known that the statement was reasonably
likely to elicit an incriminating response from the accused. Id.,
at 302. Relying only on the fact that Midkiff spoke to Davis and
not James, the Arizona Supreme Court has done little more than
restate the question under Innis.
That the Arizona Supreme Court could not salvage a plausible
finding of "initiation" is perhaps not surprising. The facts
demonstrate that from James' perspective Midkiff's question created
significant coercive pressure over and above that inherent in
custody itself. When Sergeant Midkiff asked his question he stood
only a few feet from James in the interrogation room. Midkiff
admitted at the suppression hearing that James "might have assumed"
the question was meant for him, Tr. 52-53 (Aug. 27, 1982), as well
he might because the question sought information for which he had
to have been the original source. Like many of the interrogation
techniques deplored in Miranda for their tendency to overbear the
will of an accused in custody, Midkiff's question presumed guilt
and suggested to James that the purpose of the interrogation was
simply to force him to accede to the inevitable. See Miranda, 384
U.S., at 450-451-1616; Innis, supra, 446 U.S., at 299, 100 S. Ct.,
at 1688. Projecting an air of confidence in the suspect's guilt is
a recommended interrogation tactic precisely because of the
enhanced coercive pressure it brings to bear on a suspect. See F.
Inbau & J. Reid, Criminal Interrogation and Confessions 26 (2d
ed.1967).
The timing of Midkiff's question exacerbated its coercive
impact. Occurring only seconds after Davis had completed his direct
questioning, the Midkiff inquiry must have seemed to James simply
one more question in the intensive interrogation to which he had
been subjected up until a few seconds before. The enhanced coercive
pressures of the direct questioning in the interrogation room were
not likely to have dissipated in the few seconds between Davis'
final question and Midkiff's question. Because James' first request
for an attorney had not succeeded in cutting
Page 469 U.S.
990 , 997
off interrogation, James would have had no reason to think that
his second request would be any more effective. Under these
circumstances the statement "I'll show you where the body is" must
be viewed as the product of compulsion produced by coercive
pressures that were at least the functional equivalent of direct
questioning.
Under Innis, only if Sergeant Midkiff could not reasonably have
foreseen that his question would prompt an incriminating response
should the response be found to be a voluntary "initiation." The
preceding discussion should make clear that the response of James
was entirely foreseeable under the coercive circumstances then
present. Nor is this a case like Innis in the sense that the
authorities would have had no reason to foresee that their "few
offhand remarks" would touch a peculiar psychological
susceptibility in the accused and thereby evoke an incriminating
response. Innis, supra, at 302-303-1691 . Midkiff should reasonably
have foreseen that under the coercive circumstances then present,
his question to Davis was likely to evoke an incriminating response
from even a veteran of the interrogation room.
At bottom, the "initiation" aspect of the Edwards test is meant
to protect the Fifth Amendment rights of a suspect who has decided
that he or she is not competent to handle the coercive pressures of
custodial interrogation without a lawyer. The requirement of an
"initiation" ensures that an accused has independently changed his
or her mind about the need for a lawyer, and has not had his or her
mind changed by the coercive pressure of continued direct
questioning or its functional equivalent. In no sense can James be
said to have made such an independent judgment.
2. "Waiver." Even if one accepts arguendo, that James
initiated the conversation about the location of the body, such a
conclusion permits introduction at trial of only the initiating
statement. Edwards, 451 U.S., at 485-486. Immediately after James
made the first incriminating statement, Midkiff directly asked
James where the body was. Whatever the status of Midkiff's first
question to Davis, this question to James and the follow-up
questions as to the exact location of the body are interrogation
under any definition. James' incriminating responses and their
evidentiary fruits were properly admitted at trial only if James
made a knowing and intelligent waiver of his previously
Page 469 U.S.
990 , 998
invoked right to counsel. Oregon v. Bradshaw,
462 U.S. 1039 (1983).
The test is that of Johnson v. Zerbst: indulging every reasonable
presumption against waiver, was there a knowing and intelligent
waiver in light of the "particular facts and circumstances
surrounding that case, including the background, experience, and
conduct of the accused?" 304 U.S., at 464.
The state trial court failed to apply the proper legal standard
in evaluating whether the incriminating statements should be
admitted. The court merely found that James " 'knowingly,
willingly, and voluntarily made' the statement," 141 Ariz., at 145,
685 P.2d, at 1297 (quoting unpublished trial court minute order)
(emphasis added), and did not find that James knowingly and
intentionally relinquished his right to counsel. Though the trial
court's finding might suffice under the "voluntariness" standard of
Schneckloth v. Bustamonte,
412 U.S. 218, 226, 227,
2047, 2048 (1973), it falls short under the more exacting test of
Johnson v. Zerbst.
The Arizona Supreme Court's efforts to rehabilitate the trial
court on this issue are no more availing than were its similar
efforts on the initiation question. The State Supreme Court held
that a constitutionally sufficient finding of waiver was implicit
in the trial court opinion. See 141 Ariz., at 144-145, 685 P.2d, at
1296-1297. Though the analysis that led the court to this
conclusion is not crystalline, the court appears to have found
waiver because James knew his rights (he twice invoked them), was
not subject to threats or promises, and made a conscious decision
to cooperate, expressed in his initiation of dialogue with the
authorities. Ibid. The opinion makes clear that the court found
waiver implicit in the initial incriminating statement and not in
anything James did or said subsequent to that initial statement.
Id., at 145, 685 P.2d, at 1297.
This analysis cannot pass muster under Edwards. In every Edwards
case that reaches the waiver stage of the analysis, the accused
will have necessarily invoked the right to counsel and subsequently
initiated a dialogue. If these two facts alone support an
affirmative finding of knowing and intelligent waiver of the right
to counsel, then the further requirement in Edwards and Bradshaw of
an explicit finding of subsequent waiver becomes superfluous.
Bradshaw made clear that "even if a conversation . . . is initiated
by the accused, where reinterrogation follows, the burden remains
upon the prosecution to show that subsequent
Page 469 U.S.
990 , 999
events indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation." 462 U.S., at 1044 (
emphasis added). The court here pointed to no subsequent events in
which James affirmatively indicated an intention to waive his right
to counsel.
No fair reading of the facts of this case will support a finding
of waiver. See Fare v. Michael C.,
442 U.S. 707, 726-727,
2572-2573 (1979). This Court indulges a strong presumption against
finding a waiver of the right to counsel, especially when the
accused has not made such a waiver explicit. See Miranda v.
Arizona, 384 U.S., at 475; Johnson v. Zerbst, 304 U.S., at 464.
That presumption should apply with particular force in this case
because James was never reminded of his right to counsel after he
allegedly initiated new discussions with Officer Davis and Sergeant
Midkiff. This important circumstance distinguishes the present case
from recent cases in which the Court has found a valid waiver of a
previously invoked right to counsel. In both Oregon v. Bradshaw,
supra, and Wyrick v. Fields,
459 U.S. 42 ( 1982), the
police gave the accused a thorough reminder of his right to counsel
prior to official reinterrogation after an initiation. See United
States v. Montgomery,
714 F.2d
201 (CA1 1983). While a prophylactic rule requiring such
reminders in every case might be an appropriate safeguard of this
core right, cf. North Carolina v. Butler,
441 U.S.
369, 377, 99 S. Ct. 1755, 1759 (1979) (BRENNAN, J.,
dissenting), at the very least an especially strong presumption
against finding waiver should apply absent such a reminder.
Because James never specifically indicated a waiver of his
rights, a finding of waiver must be based on inference. If waiver
is to be inferred on these facts it would have to be inferred
solely from James' decision to respond to the questions that
Midkiff and Davis put to him after he invoked his right to counsel.
His first response to a direct question- Midkiff's inquiry about
the location of the body-occurred only seconds after James had
invoked his right to counsel and only a split second after he had
purportedly "initiated" a new dialogue. Tr. 44-46 (Aug. 27, 1982).
Inferring waiver from the bare fact that an accused responded to
interrogation is under any circumstances extremely dubious.
Edwards, 451 U.S., at 484; Miranda v. Arizona, supra, 384 U.S., at
474; Carnley v. Cochran,
369 U.S.
506, 516, 890 (1962). And the instant circum-
Page 469 U.S.
990 , 1000
stances simply will not support such an inference of a
split-second change of mind in the coercive interrogation
environment.*
Absent any specific affirmative signal of waiver, any thorough
reminder to petitioner of his rights after initiation, and with
only inferences from the fact that James responded to
interrogation, I do not see how this Court can sanction a finding
of waiver under these circumstances, particularly in a capital
case. Declining review of so substantial a departure from Johnson
v. Zerbst and its progeny, this Court shirks its primary role in
reviewing the decisions of state courts " 'to make sure that
persons who seek to vindicate federal rights have been fairly
heard.' " Florida v. Meyers,
466 U.S.
380, 385, 1855 (1984) (STEVENS, J., dissenting) (quoting
Michigan v. Long,
463 U.S.
1032, 1068, 3491 (1983) (dissenting opinion) (emphasis in
original). When a petitioner seeking vindication of a federal right
risks execution if that right is not vindicated the responsibility
to review is one this Court must accept.
IV
Perhaps the Court is disinclined to review this case on the
mistaken view that the case involves only the application of
settled constitutional principle to the instant facts. I have made
plain that I think clarification is needed with respect to the
application of Johnson v. Zerbst, supra, to custodial waiver of the
previously invoked right to counsel. More importantly, in the realm
of constitutional protections of the accused the sensitivity to
factual nuance that marks so many of our current doctrines requires
this Court in the proper case to exercise its powers of review to
correct egregious departures from the intendment of our precedents.
Incessant reliance on the precept that review is unnecessary when a
case involves no more than application of settled principles to
fact risks draining our constitutional protections of all
protective vitality. The present case illustrates the point. If the
instant facts support a finding of initiation and waiver under
Edwards v. Arizona, supra, then the protections set forth in that
case are illusory. Only by granting review in aberrant cases such
as this can the Court make clear that the tests set forth for
deciding the
Page 469 U.S.
990 , 1001
bounds of the Constitution's protections of individual rights
are meant not as manipulable technicalities in the service of empty
slogans but as bulwarks of our most precious liberties.
Footnotes
[
Footnote *] Midkiff and Davis
certainly did not perceive James as having waived his rights under
the circumstances. Midkiff instructed all officers not to question
James, and Davis testified that he deliberately avoided
interrogating James because he thought he had a legal obligation to
refrain. Tr. 50-51 (Aug. 27, 1982).