On petition for writ of certiorari to the Supreme Court of
Virginia.
The petition for writ of certiorari is denied.
Justice MARSHALL, dissenting.
Petitioner, who was convicted of murder in a Virginia trial
court, argues that his confession should not have been admitted
into evidence. The confession was made during a police
interrogation, at the outset of which petitioner waived his rights
under Miranda v. Arizona,
384 U.S. 436 (1966).
Earlier that same day, however, petitioner had stated that he
wished to confer with an attorney. The interrogation took place
before he had an opportunity to do so. The Virginia Supreme Court
ruled that there had been a valid waiver, and thus that the
confession was admissible. In my view, the decision to admit the
confession was contrary to the spirit-if not the letter-of our
recent decision in Edwards v. Arizona,
451 U.S. 477 (1981),
which was handed down after the State Supreme Court's ruling in
this case. I would grant the petition for a writ of certiorari,
vacate the judgment of the State Supreme Court, and remand the case
for reconsideration in light of Edwards.
In Edwards v. Arizona, the petitioner was arrested on charges of
robbery, burglary, and murder. After he was informed of his Miranda
rights, he was questioned by police. Edwards denied involvement in
the crime and presented an alibi defense. He then told police that
he wanted to "make a deal." He stated, however, that he wanted to
consult with an attorney first. Although questioning then ceased,
police detectives visited Edwards the next day and told him that
they wished to ask him some questions. Petitioner replied that he
did not want to talk to anyone. After being told that he "had to"
talk to the detectives, he acquiesced. The officers read Edwards
his Miranda rights and began a new interrogation session. Shortly
after the session began, petitioner implicated himself in the
crime.
Page 454 U.S.
920 , 921
We reversed the Arizona Supreme Court's ruling that this
confession was admissible, holding:
"[W]hen an accused has invoked his
right to have counsel present during custodial interrogation, a
valid waiver of that right cannot be established by showing only
that he responded to further police- initiated custodial
interrogation even if he has been advised of his rights.
[Moreover,] an accused, . . . having expressed his desire to deal
with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police."
Edwards v. Arizona, 451 U.S., at 484-485-1885.
We recognized that a person in custody who had expressed a
desire to have a lawyer might change his mind and even welcome an
opportunity to talk. Id., at 485-486. Where the accused did not
himself renew discussions with the police, however, we decided that
it was unsafe to assume that he had voluntarily, knowingly, and
intelligently waived his right to counsel.
The facts of this case are remarkably similar to those of
Edwards v. Arizona. On December 12, 1977, petitioner was arrested
by Virginia authorities and charged with robbery, premeditated
murder in the commission of armed robbery, and use of a firearm in
the commission of murder. At his arraignment the next day,
petitioner asked the court to appoint counsel. An attorney was
appointed. That afternoon, however, before petitioner had an
opportunity to confer with his lawyer, a local police detective
visited him in jail. This detective later testified that he neither
knew nor cared whether petitioner had requested an attorney. The
detective informed petitioner of his Miranda rights and obtained
peti-
Page 454 U.S.
920 , 922
tioner's signature on a waiver form. He then initiated an
interrogation session. During the course of this interrogation,
petitioner confessed. Before his trial, petitioner moved to
suppress the confession, arguing that he had not knowingly and
intelligently waived his right to counsel. The trial court ruled
the confession admissible and the Virginia Supreme Court affirmed.
Petitioner was subsequently convicted. [
Footnote 1]
Under the circumstances, I think it clear that Edwards bars the
use of petitioner's confession. Having exercised his right to
consult with an attorney, petitioner should not have been subjected
to interrogation by the authorities until counsel had been made
available. The State attempts to distinguish Edwards on two
grounds. First, it points out that Edwards clearly expressed his
desire to deal with police only through counsel, whereas petitioner
here simply asked that an attorney be appointed. However, an
accused is under no obligation to state precisely why he wants a
lawyer. If we were to distinguish cases based on the wording of an
accused's request, the value of the right to counsel would be
substantially diminished. As we stated in Fare v. Michael C.,
442 U.S.
707, 719, 2569 (1979), "an accused's request for an attorney is
per se an invocation of his Fifth Amendment rights, requiring that
all interrogation cease."
Second, the State notes that Edwards informed the police of his
desire for an attorney, whereas petitioner only in-
Page 454 U.S.
920 , 923
formed the judge at his arraignment. The State suggests that
since the police did not know about petitioner's request, the
interrogation was not improper. However, the police could easily
have determined whether petitioner had already exercised his right
to counsel; presumably, a prosecutor was present at the
arraignment. They did not know about petitioner's request for a
lawyer only because they made no effort to determine whether such a
request had been made. But even if the police could not have
discovered that petitioner had expressed a desire for an attorney,
I would hold that the confession should not have been admitted. The
key question in this case is whether petitioner's waiver of his
right to counsel was knowing, intelligent, and voluntary. In
determining whether these conditions were satisfied, the fact that
the police were unaware of a prior request for counsel is only
tangentially relevant. What is important, rather, is the state of
mind of the accused. I think it is no more safe to assume that a
waiver is valid when an accused has made a prior request to the
judge at his arraignment than when he has made the request to
police. In both cases, the accused informs an individual in
authority that he would like an attorney-and yet shortly
thereafter, state officials, apparently disregarding his request,
ask him to waive his rights. [
Footnote 2]
Footnotes
Footnote 1 The trial court
ruled that the confession was admissible after conducting a
suppression hearing. Petitioner was tried before a jury and found
guilty of murder. On appeal, the Virginia Supreme Court sustained
the trial court's ruling on the suppression motion. Johnson v.
Commonwealth, 220 Va. 146,
255 S.E.2d
525 (1979). The conviction was reversed on other grounds,
however. A new trial was held, and petitioner renewed his motion to
suppress the confession. This motion was denied. Petitioner was
once again found guilty of murder. On appeal from this conviction,
he asked the Virginia Supreme Court to reconsider its prior
holding, but the court refused to grant a writ of error on this
issue.
Footnote 2 This petition was
not timely filed under Rule 20.1 of the Rules of this Court, which
provides that a petition for certiorari to review a state court's
judgment in a criminal case "shall be deemed in time when it is
filed with the Clerk within 60 days after the entry of such
judgment." However, this time requirement is not jurisdictional and
may be waived by the Court "in the exercise of its discretion when
the ends of justice so require." Schacht v. United States,
398 U.S.
58, 64, 1559 (1970) (interpreting predecessor to Rule 20.1, old
Rule 22(2 )); see also Sanabria v. United States,
437 U.S. 54, 62, n. 12,
2177, n. 12 (1978) (same). I believe that waiver would be
appropriate here because the Virginia Supreme Court's decision is
so clearly in conflict with Edwards.
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