On petition for writ of certiorari to the Supreme Court of
Virginia.
The petition for a writ of certiorari is denied.
Page 475 U.S.
1099 , 1100
Opinion of Justice STEVENS respecting the denial of the petition
for certiorari.
As Justice MARSHALL explains in his dissenting opinion, the
violation of petitioner's Fifth Amendment right to counsel requires
that the sentence of death for the shooting of Betty Jean Barker be
set aside. However, in view of the fact that, as petitioner has
presented the issue, this error would not appear to have affected
the validity of the conviction or the death sentence for the murder
of Carl Douglas Buchanan, I agree with the Court's decision to deny
certiorari and allow the error to be corrected in collateral
proceedings.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
In the landmark case of Miranda v. Arizona,
384 U.S. 436 (1966), this
Court held that before police institute custodial interrogation of
an individual, they must inform him of his right to consult with
counsel. Miranda further required that the police respect the
individual's decision to exercise that right. We stated, in clear
and mandatory language:
"If the individual states that he
wants an attorney, the interrogation must cease until an attorney
is present. At that time, the individual must have an opportunity
to confer with the attorney and to have him present during any
subsequent questioning. If the individual cannot obtain an attorney
and he indicates that he wants one before speaking to police, they
must respect his decision to remain silent." Id., at 474.
We reaffirmed that rule in Fare v. Michael C.,
442 U.S.
707, 719, 2568 (1979) ("[T]he Court fashioned in Miranda the
rigid rule that an accused's request for an attorney is per se an
invocation of his Fifth Amendment rights, requiring that all
interrogation cease"); see also Rhode Island v. Innis,
446 U.S.
291, 298, 1688 (1980); Michigan v. Mosley,
423 U.S. 96, 104, n. 10,
326, n. 10 (1975); id., at 109-111-330 (WHITE, J., concurring in
result). We refined the rule in Edwards v. Arizona,
451 U.S.
477, 485, 1885, 68 L. Ed. 2d 378 (1981), explaining that the
right to counsel, once asserted, cannot be waived "unless the
accused himself initiates further communication, exchanges, or
conversations with the police." We emphasized: "[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." Ibid.
Page 475 U.S.
1099 , 1101
In this case, the Court acquiesces in a blatant denial of that
Fifth Amendment right by the police and the courts of the State of
Virginia. Unwilling to ignore that violation, I dissent from the
denial of certiorari.
I
Petitioner Johnny Watkins, Jr. was charged with the murder of
Betty Jean Barker. The State announced its intention to introduce
at the penalty phase of that trial a statement made by Watkins in
connection with an unrelated murder. During the pretrial
suppression hearing, the following facts emerged.
Watkins was arrested in the evening of November 22, 1983, as a
suspect in the murder of Carl Douglas Buchanan. He was questioned
about 11 p.m. and signed a waiver-of-rights form, but then told the
interrogating officer that he wanted to see a lawyer. Interrogation
ceased temporarily.
About two hours later, Watkins was informed that he was being
charged with the murder of Buchanan. He asked why he was being
charged, and was given a second waiver-of-rights form to execute.
The police then told Watkins that his brother Darnell had
implicated him in the murder, played for him a portion of Darnell's
recorded statement, and took him to see Darnell. Watkins refused to
talk to police about the shooting.
The police did not supply Watkins with a lawyer. They instead
transferred him to the county jail, held him there until November
28, and then reinterrogated him. Testimony was conflicting as to
what happened at the November 28 meeting. The parties agreed that a
police officer went to the jail to interrogate Watkins, and had him
sign a waiver-of-rights form. Watkins testified that he again asked
for a lawyer but that the officer ignored his request, and that the
officer "nagg[ed]" him until he admitted to the shooting of
Buchanan. The officer testified that Watkins never stated on
November 28 that he wanted to stop the questioning or consult with
a lawyer, and that he gave his statement without apparent
hesitation. The Barker trial court apparently credited the
officer's testimony. There was no dispute, however, that Watkins
had requested a lawyer five days earlier, had not received one, had
not himself reinitiated questioning, and had been questioned again
nonetheless.
Watkins' statement implicating himself in the Buchanan killing,
along with extensive other evidence of that crime, was admitted
over objection in the penalty phase of Watkins' trial for the
shoot-
Page 475 U.S.
1099 , 1102
ing of Barker. The jury sentenced Watkins to death. Some months
later, Watkins was convicted of the murder of Buchanan, and was
given a second death sentence.
The facts of this case constitute a plain violation of
petitioner's Fifth Amendment right to counsel. Our law sets out a
bright-line rule that all questioning must cease after an accused
requests counsel, so that repeated police questioning does not
"wear down the accused and persuade him to incriminate himself
notwithstanding his earlier request for counsel's assistance."
Smith v. Illinois,
469 U.S.
91, 98, 494 (1984) (per curiam ). The accused may not be found
to have waived that right, once he asserts it, unless he himself
reinitiates questioning. Ibid.
In this case, Watkins made an undisputed and unequivocal request
for counsel on November 22, and refused to talk to the authorities
in counsel's absence. The response of the police was to hold
Watkins without a lawyer for five days and then to interrogate him
again. Even if the trial court credited the police officer with
respect to the events of November 28, that interrogation was
impermissible under Miranda and its progeny, and any statement so
elicited should not have been admitted in the penalty phase of a
capital proceeding. See Estelle v. Smith,
451 U.S. 454, 462-463,
1872-1873 (1981); see also Del Vecchio v. Illinois,
474 U.S. 883 (1985 )
(MARSHALL, J., dissenting from denial of certiorari).
II
Respondent State of Virginia contends that petitioner did not
adequately present his Fifth Amendment claim to the Supreme Court
of Virginia. It focuses on the fact that Watkins did not include
the magic words "Edwards v. Arizona" in his brief to that court.
This contention has no merit. Edwards merely set out an elaboration
of the basic rule of Miranda, and Watkins cited expressly to
Miranda below. He argued to the trial court that the statement had
been taken in violation of his Fifth Amendment right to counsel. He
argued to the appellate court that his statement had been taken in
violation of his Fifth Amendment rights and was involuntary,
focusing on his claim that police had ignored an express request
for counsel on November 28. While Watkins did not present his
argument below as proficiently as he now does in his petition for
certiorari, he unmistakably raised below and reasserts here a claim
that the November 28 statement was taken in violation of his Fifth
Amendment right to counsel. The denial of
Page 475 U.S.
1099 , 1103
his November 22 request for counsel is part and parcel of that
claim. See Eddings v. Oklahoma,
455 U.S. 104, 113-114, n.
9, 876, n. 9 (1982).
III
The Court today allows Watkins' death sentence to stand
notwithstanding the illegality of the evidence introduced before
the jury in its sentencing deliberations. The denial of his
petition adds to a long line of cases in which the Court has
declined to review capital sentences marred by the sort of
violation described here. E.g., Henderson v. Florida,
473 U.S. 916 (1985)
(MARSHALL, J., dissenting from denial of certiorari); James v.
Arizona,
469 U.S.
990 (1984) (BRENNAN, J., dissenting from denial of certiorari);
Johnson v. Virginia,
454 U.S. 920d 231 (1981)
(MARSHALL, J., dissenting from denial of certiorari). I
dissent.