On petition for writ of certiorari to the United States Court of
Appeals for the Eighth Circuit.
The petition for writ of certiorari is denied.
Justice MARSHALL, dissenting.
Last Term, this Court summarily reversed a judgment of the
United States Court of Appeals for the Eighth Circuit, which ruled
that petitioner's 1975 Missouri rape conviction was based on an
involuntary statement taken in violation of petitioner's Fifth
Amendment rights. Wyrick v. Fields, ___ U.S. ___ (1982), rev'g
682 F.2d
154 (1982). I dissented from that summary reversal because I do
not believe this Court should decide unsettled questions of
constitutional law without plenary review. Id., at ___. In my
dissent, I noted that, even if petitioner's statement were
voluntary under the Fifth Amendment, the interrogation that
produced petitioner's statement might nevertheless have violated
petitioner's Sixth Amendment right to counsel. Id., at ___ -
___-400.
Page 464 U.S.
1020 , 1021
On remand, the Eighth Circuit considered this issue and
concluded that petitioner had knowingly and intelligently waived
his Sixth Amendment right to have counsel present during the
interrogation. Fields v. Wyrick,
706 F.2d
879 (CA8 1983). Because I disagree with the manner in which the
Eighth Circuit analyzed petitioner's Sixth Amendment claim, I would
grant certiorari and set the case for oral argument.
Petitioner, a soldier undergoing basic training in Missouri, was
charged with rape. After consulting with counsel, petitioner told
his company commander that he wanted to take a polygraph test.
Petitioner was under the impression that if he "passed" a polygraph
test, the charges against him would be dropped, and he would be
permitted to graduate from basic training on schedule. 682 F.2d, at
160, n. 10. Petitioner's counsel shared this impression and later
testified that he thought "the polygraph would have merely shown
deceit or non-deceit and would have been used for the purposes of a
possible pre-trial negotiation." Id., at 160. Accordingly
petitioner's counsel advised him to take the test.
Days later when the test was given, petitioner's counsel was not
notified. The military officer in charge of the examination simply
informed petitioner of his rights to refuse to answer any questions
or to have counsel present, and petitioner signed a document 1
waiving those rights. See State v. Fields,
538
S.W.2d 348 (Mo.Ct.App.1976). Throughout the polygraph
examination, petitioner professed his innocence. After the
examination was over, however, the officer administering the test
informed petitioner that the machine revealed "some deceit" and
asked petitioner for an explanation. The officer did not tell
petitioner that the results of polygraph tests were inadmissible in
Missouri courts, nor did the officer remind petitioner of his right
to have counsel present during this post-examination interrogation.
Petitioner then said that he had had consensual sexual relations
with the rape victim on the day of the alleged rape. The officer
immediately summoned the local chief of police. After receiving a
Miranda warning from the police chief, petitioner repeated his
statement. At trial, this statement was the heart of the State's
successful prosecution.
Page 464 U.S.
1020 , 1022
On remand from this Court's previous decision, the Eighth
Circuit acknowledged the difference between the policies underlying
the Fifth Amendment right to counsel and those informing Sixth
Amendment right to counsel, but asserted, "[W]here the defendant
has previously invoked his right to counsel, it is relatively clear
that the validity of any subsequent waiver of either the fifth or
sixth amendment right to counsel is judged by essentially the same
standard." 706 F.2d, at 881 (emphasis in original). Relying on this
Court's finding that petitioner's pre- examination waiver of his
Fifth Amendment right to counsel covered his post-examination
interrogation, the Court of Appeals concluded that petitioner had
simultaneously waived any Sixth Amendment right to counsel during
the interrogation. Id., at 881-82.
As I discussed in my dissent last year, a number of courts have
come to accept the view that waivers based solely on unembellished
Miranda warnings do not necessarily satisfy " 'the higher standard
with respect to the right to counsel that applies when the Sixth
Amendment right to counsel has attached.' " --- U.S., at ___
(quoting United States v. Massimo,
432 F.2d
324, 327 (CA2 1970) (Friendly, J., dissenting), cert. denied,
400 U.S. 1022 ( 1971); see, e.g., United States v. Mohabir,
624 F.2d
1140, 1151 (CA2 1980 ) (government must show defendant
"understood the nature and importance of the Sixth Amendment right
he was giving up."). But see Blasingame v. Estelle,
604 F.2d
893 (CA5 1979); Moore v. Wolff,
495 F.2d
35 (CA8 1974). In our own opinions, we have strongly intimated
that waivers of the Sixth Amendment right to counsel should be
measured by a stricter standard. See United States v. Henry,
447 U.S. 264,
272-273, 2187-88 (1980); Brewer v. Williams,
430 U.S.
387, 404, 1242 (1977); Farretta v. California,
422 U.S.
806, 835, 2541 (1975).2
While acknowledging this widely-held view of the Sixth Amendment
waiver, the Eighth Circuit determined that the higher standard of
Sixth Amendment waiver applies only until a defendant has obtained
counsel. The Court of Appeals provided no explanation why the Sixth
Amendment waiver standard should decline once counsel is appointed,
and I can see no justification in law
Page 464 U.S.
1020 , 1023
or in practice for its ruling. [
Footnote 3] Certainly, the mere appointment of counsel
does not significantly affect a criminal defendant's capacity to
make an informed choice about waiving the right to counsel. One or
two conferences with counsel rarely make a criminal defendant more
sophisticated about the importance of obtaining legal advice during
the skirmishing antecedent to a criminal prosecution.
In my view, the Eighth Circuit erred in ruling that a criminal
defendant waives his Sixth Amendment right to counsel simply by
answering questions after being given a Miranda warning. Had the
Eighth Circuit applied the higher standard of Sixth Amendment
waiver endorsed by the Second Circuit in United States v. Mohabir,
supra, at 1150, there is a substantial probability that the
government would not have been able to show petitioner's implied
waiver to be a valid relinquishment based on a full comprehension
of the consequences. See Johnson v. Zerbst,
304 U.S.
458, 464, 1023 (1938). Since the Eighth Circuit's decision is
inconsistent with the views of several other Circuits and since
this inconsistency may have been dispositive in petitioner's case,
I would grant the petition.
Footnotes
Footnote 1 Though not
identical, the document followed closely the Fifth Amendment waiver
form endorsed by this Court in Miranda v. Arizona,
384 U.S. 436 (1968).
Footnote 2 See also Note,
Sixth Amendment Right to Counsel: Standard for Knowing and
Intelligent Pretrial Waiver, 60 B.U.L.Rev. 738 (1980); Note,
Proposed Requirements for Waiver of the Sixth Amendment Right to
Counsel, 87 Colum.L.Rev. 363, 365-370 (1982).
Footnote 3 Indeed, the
Seventh Circuit has concluded, "[T]here is a higher standard
imposed to show waiver of the presense of counsel once counsel has
been appointed." United States v. Springer,
460
F.2d 1344, 1352 (1972 ), cert. denied, 409 U.S. 873 (1973); see
also United States v. Patman,
557 F.2d
1181, 1182, n. 1 (CA5 1977).
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