JOSEPH NICHOLAS BECK, JR., — v. MICHAEL BOWERSOX, —

362 F.3d 1095

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 18, 2004
• Docket: 02-2859
• Status: Published

Opinions

LOKEN, Chief Judge.

Julie Parton’s grandparents were murdered at their Missouri home on August 27, 1981. Parton and her boyfriend, Joseph Nicholas Beck, hid the bodies and fled to Florida. After a Missouri arrest warrant issued, Beck was arrested in Miami on September 5. At the Miami airport, Beck waived his Miranda rights and gave both oral and written statements, asserting that he acted in self-defense. On September 8, while being flown back to St. Louis, Beck again waived his Miranda rights and made additional, more incriminating statements. Both sets of statements were admitted at his 1982 trial. Beck was convicted of two counts of capital murder. On direct appeal, the Missouri Court of Appeals reversed the conviction, concluding that the statements should have been suppressed because the questioning violated Beck’s Fifth and Sixth Amendment rights. The State appealed, and the Supreme Court of Missouri affirmed the trial court, concluding that no constitutional violation had occurred. State v. Beck, 687 S.W.2d 155, 160 (Mo. banc 1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986).

Beck filed this petition for federal habeas corpus relief in 1997. The district court dismissed the petition without a hearing. We reversed and remanded because the record before the district court did not include a transcript of the state court suppression hearing that had been part of the record before the state courts. Beck v. Bowersox, 257 F.3d 900 (8th Cir.2001). On remand, the district court¹ reviewed the suppression hearing transcript, concluded that it supported the trial court’s findings of fact regarding the vol-untariness of Beck’s statements, and again dismissed the habeas petition. Beck appeals,² arguing that admission of the statements violated his constitutional rights because his Miranda waivers were not knowing and voluntary, and because his Sixth Amendment right to counsel had attached before the statements were solicited. We affirm.

I. Background

We will summarize the relevant facts as found by the state courts. Like the district court, after careful review of the suppression hearing and trial transcripts, we conclude that Beck has failed to rebut by clear and convincing evidence the presumption of correctness that we must give to the state courts’ determination of factual issues. See 28 U.S.C. § 2254(e)(1).

Three days after the murders, Beck asked his mother to find a lawyer for him. His mother asked Christine Hendrix, an assistant public defender who was representing Beck on unrelated charges, to represent him as a suspect in these murders. Hendrix agreed and then called the St. Charles County sheriff to advise him that she was Beck’s attorney and to insist that she be notified prior to questioning if Beck was apprehended. One or two days later, an assistant prosecuting attorney applied for an arrest warrant, submitting an affidavit containing the following:

COUNT I

The Prosecuting Attorney of the County of St. Charles, State of Missouri, charges that the defendant, JOSEPH NICHOLAS BECK, in violation of Section 565.001 RSMo, committed the felony of capital murder ... in that the defendant wilfully, knowingly, with premeditation, deliberately and unlawfully killed Herbert Kemp by shooting him on or about the 27th day of August, 1981

COUNT II

The Prosecuting Attorney of the County of St. Charles, State of Missouri, charges that the defendant, JOSEPH NICKOLAS BECK, in violation of Section 565.001 RSMo, committed the felony of capital murder ... in that the defendant wilfully, knowingly, with premeditation, deliberately and unlawfully killed Georginia Kemp by shooting her on or about the 27th day of August, 1981

Based upon this affidavit, a St. Charles County Circuit Court judge issued a warrant to arrest Beck. The warrant stated that Beck “is charged with CAPITAL MURDER — TWO COUNTS” and then quoted the charges as set forth in the prosecutor’s affidavit. On the same day, Hendrix left a message for the St. Charles County jailer requesting that she be notified if Beck was brought to the jail. Hendrix also informed the prosecutor that she was representing Beck and requested that she be notified before he was questioned.

The St. Charles County sheriff learned of Beck’s arrest on September 5 but did not notify attorney Hendrix because the prosecutor advised the sheriff that he had no obligation to do so. Attorney Hendrix first learned of Beck’s arrest on September 8, when he was being returned to St. Louis. Thus, Hendrix had no opportunity to advise Beck before he made incriminating statements at the Miami airport and during his plane ride back to Missouri.

Beck appeared before the St. Charles County Circuit Court on September 18. The court found sufficient evidence to bind him over on two counts of capital murder. The prosecutor filed an information on September 29 charging Beck with the same two counts of capital murder. After Beck’s motion to suppress the September 5 and September 8 statements was denied, the statements were introduced at his 1982 trial. Beck’s timely objections were preserved on direct appeal.

II. The Miranda Issue

In Miranda v. Arizona, 384 U.S. 436, 467-70, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that, prior to initiating a custodial interrogation, the police must protect a suspect’s Fifth Amendment privilege against self-incrimination by warning him that the State intends to use any statements to secure a conviction and that he has the right to remain silent and to have counsel present if he so desires. Once advised of those rights, the suspect may waive them, “provided the waiver is made voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602; see Moran v. Burbine, 475 U.S. 412, 422-23, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

At the suppression hearing, the officer who questioned Beck at the Miami airport testified that, before starting to question, he gave Beck a copy of a Miranda “rights card,” confirmed that Beck could read and write, and then read each right from the card, asking Beck if he understood each right after it was read. Beck responded affirmatively, initialed each line on the card, and said he would make a statement. He did not request the presence of an attorney at any point during the interrogation. On the plane trip back to St. Louis, Beck was again advised of his Miranda rights and again chose to make incriminating statements before seeking advice from an attorney. Though Beck testified that he was coerced on both occasions, the state trial court “believe[d] the testimony of the police officers over the testimony of defendant” and found that the statements “were made freely and voluntarily on [Beck’s] part after a knowing and intelligent waiver of his Constitutional rights.”

Beck argued to the state courts that he did not knowingly and intelligently waive his Miranda rights because the police failed to advise him that he was being represented by a Missouri attorney who had asked the authorities not to question Beck before she met with him. By not honoring counsel’s request, Beck argued, the St. Charles County sheriff and prosecutor were guilty of official misconduct that deceived Beck into making an unknowing waiver of his constitutional rights. The Supreme Court of Missouri rejected this argument, concluding that the sheriff had no legal duty to notify counsel before Beck was questioned, and that counsel’s request “was legally insufficient to invoke [Beck’s] Fifth Amendment rights.” 687 S.W.2d at 158 n. 7. The Court held that Beck’s Miranda waiver was knowing and intelligent, observing, “It is simply incredulous to think that at the time of his arrest, defendant had forgotten that just a few days earlier he had specifically requested his mother to find him a lawyer.” 687 S.W.2d at 159.

Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal court may not grant a writ of habeas corpus unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see King v. Kemna, 266 F.3d 816, 822 (8th Cir.2001) (en banc), cert. denied, 535 U.S. 934, 122 S.Ct. 1311, 152 L.Ed.2d 220 (2002).

In this case, the Supreme Court’s 1986 decision in Moran confirms that the Supreme Court of Missouri’s decision not to suppress the statements in question was a reasonable application of Miranda. In Moran, a suspect arrested for breaking and entering was questioned about a previously unsolved murder. Moran waived his Miranda rights and confessed to the murder, unaware that his sister had obtained an attorney to represent him on the breaking and entering charge, and that the police had told this attorney that Moran would not be questioned that night. 475 U.S. at 416-18, 106 S.Ct. 1135. The Supreme Court held that the Miranda waiver was valid despite the misinformation given to the attorney, and despite the failure of the police to inform Moran of the attorney’s attempt to reach him. 475 U.S. at 423-24, 106 S.Ct. 1135. Noting “overriding practical considerations,” the Court declined “to adopt a rule requiring that the police inform a suspect of an attorney’s efforts to reach him” before obtaining an otherwise knowing and voluntary waiver of Miranda rights. 475 U.S. at 425, 106 S.Ct. 1135.

Beck attempts to distinguish this case from Moran on the ground that he had asked his mother to retain counsel to represent him prior to his arrest. However, the decision in Moran did not turn on the presence or absence of an attorney-client relationship. Rather, the Supreme Court ruled more broadly that an attorney’s attempt to reach a suspect is not relevant to the validity of a Miranda waiver if the suspect is unaware of the attorney’s efforts:

Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

475 U.S. at 422-23, 106 S.Ct. 1135. In this case, the Supreme Court of Missouri concluded that Beck validly waived his Miranda rights, based upon well-supported findings that he fully understood his right to remain silent, to consult with counsel, and to have his lawyer present when being questioned by police. Moran makes clear that this state court decision was neither contrary to nor an unreasonable application of clearly established federal law, as determined by the Supreme Court. See Matney v. Armontrout, 956 F.2d 824, 826 (8th Cir.1992).

III. The Sixth Amendment Issue

Beck alternatively argues that he is entitled to federal habeas relief because the statements were taken in violation of his Sixth Amendment right to “the Assistance of Counsel for his defence.” U.S. Const. amend. VI. “The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Accordingly, “once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Beck argues that his right to counsel attached when the prosecuting attorney filed a warrant affidavit reciting that he was “charged” with two counts of capital murder. We disagree.³

In general, the Sixth Amendment right to counsel attaches when the State initiates an adversary judicial proceeding “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (plurality opinion); accord United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). Beck argues that his Sixth Amendment right attached with the filing of the affidavit because the affidavit and the arrest warrant recited that he was “charged” with the murders of Herbert and Georgiana Kemp. The Supreme Court of Missouri rejected this argument, concluding that Beck’s Sixth Amendment right to counsel did not attach when the prosecutor filed an affidavit for the sole purpose of obtaining a warrant to apprehend him in Florida, because that filing did not initiate an adversary judicial proceeding within the meaning of Kirby. The Court explained:

At the time [Beck’s] statements were made, the only document that had been filed was an affidavit sworn out by the prosecuting attorney — for the sole purpose of securing an arrest warrant with which to apprehend [Beck] who was over one-thousand miles away in Florida. [Beck] would have us color this ex parte event as the initiation of adversary judicial proceedings sufficient to trigger his Sixth Amendment right to counsel. In Morris v. State, 532 S.W.2d 455 (Mo. banc 1976), this Court, citing Kirby with approval, determined that the issuance of an arrest warrant did not amount to the initiation of adversary judicial proceedings — as defined within the framework of Kirby ....

... [Beck] was the subject of an arrest warrant — and not the subject of a formal charge in the nature of an indictment or information.

Beck, 687 S.W.2d at 160. Under Missouri law, “[a] prosecution is commenced either when an indictment is found or an information filed.” Mo. ANN. Stat. § 556.036.5. On January 1, 1980, after the decision in Morris v. State, Missouri Supreme Court Rule 22 was amended to clarify that an arrest warrant may issue upon the filing of a complaint by the prosecuting attorney and a finding of probable cause by the court. Mo. Sup. Ct. R. 22.01-22.03; see State v. Thomas, 674 S.W.2d 131, 135 (Mo.App.1984) (“The filing of a complaint is the first step in the information proceeding.”), cert. denied, 469 U.S. 1223, 105 S.Ct. 1213, 84 L.Ed.2d 354 (1985). But the Supreme Court of Missouri in Beck did not construe that rule change as affecting its decision in Morris “that the issuance of an arrest warrant did not amount to the initiation of adversary judicial proceedings.” Beck, 687 S.W.2d at 160.

The Sixth Amendment right to counsel attaches at a preliminary hearing or arraignment. See Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Coleman v. Alabama, 399 U.S. 1, 10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). But the Supreme Court has declined to hold that the right attaches at the time of an arrest. See Gouveia, 467 U.S. at 190, 104 S.Ct. 2292; accord, Moran, 475 U.S. at 428-32, 106 S.Ct. 1135. Applying these decisions, this court and other circuits have repeatedly held that the right does not attach with an arrest, even an arrest preceded by the filing of a complaint under Rule 3 of the Federal Rules of Criminal Procedure.⁴ The prosecutor’s affidavit in this case, like a federal Rule 3 complaint, was filed solely to obtain a warrant for Beck’s arrest. Because the affidavit and the arrest warrant preceded Beck’s arrest, and his Sixth Amendment right to counsel did not attach at the time of the arrest, the Supreme Court of Missouri’s conclusion that the right did not attach upon the filing of the affidavit was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.

The Supreme Court issued its decision in Gouveia less than a year before the Supreme Court of Missouri’s decision in Beck. Since Gouveia, the Supreme Court has given further indication that the Sixth Amendment right to counsel does not attach at the complaint/arrest or warrant/arrest stage of a typical felony investigation. In McNeil, for example, the Court refused to expand the pretrial Sixth Amendment right to counsel so as to override a suspect’s valid Miranda waivers, explaining:

Admissions of guilt resulting from valid Miranda waivers “are more than merely ‘desirable’; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.”

501 U.S. at 181, 111 S.Ct. 2204, quoting Moran, 475 U.S. at 426, 106 S.Ct. 1135. That passage from Moran was again quoted in Texas v. Cobb, 532 U.S. 162, 172, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001), a decision declining to expand the Sixth Amendment exclusionary rule in which three Justices commented that “it is difficult to understand the utility of a Sixth Amendment rule that operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless.” 532 U.S. at 174-75, 121 S.Ct. 1335 (Kennedy, J., concurring). In our view, these later decisions confirm that the Supreme Court of Missouri’s decision that Beck’s Sixth Amendment right to counsel had not attached when he waived his Miranda rights and made the statements in question was neither “contrary to [nor] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

For the foregoing reasons, the judgment of the district court is affirmed.

1 . The HONORABLE TERRY I. ADELMAN, United States Magistrate Judge for the Eastern District of Missouri, to whom the case was assigned with the consent of the parties. See 28 U.S.C. § 636(c).

2 . We reject respondent's contention that we lack jurisdiction because the appeal was untimely. Beck's "Objection” to the district court's dismissal order must be treated as a motion under Federal Rule of Civil Procedure 59(e). See Quartana v. Utterback, 789 F.2d 1297, 1300 (8th Cir.1986). That motion was timely filed within ten days of the district court’s order under the prison mailbox rule, which applies to Rule 59(e) motions. See United States v. Duke, 50 F.3d 571, 575 (8th Cir.), cert. denied, 516 U.S. 885, 116 S.Ct. 224, 133 L.Ed.2d 154 (1995). Thus, the motion tolled the time for filing this appeal, and Beck's notice of appeal was timely. See Fed. R. App. P. 4(a)(4)(A)(iv).

3 . Beck further argues that his right to counsel was "invoked” when attorney Hendrix notified the St. Charles County authorities that she was representing him and wanted to be notified when he was apprehended. We doubt whether that was sufficient to invoke the Sixth Amendment right to counsel. See Chewning v. Rogerson, 29 F.3d 418, 422 (8th Cir.1994). But we need not resolve this issue.

4 . See Von Kahl v. United States, 242 F.3d 783, 789 (8th Cir.) ("The filing of a criminal complaint and the issuance of an arrest warrant do not constitute the initiation of an adverse judicial proceeding for purposes of McNeil.”), cert. denied, 534 U.S. 941, 122 S.Ct. 317, 151 L.Ed.2d 237 (2001); United States v. Moore, 122 F.3d 1154, 1156 (8th Cir.1997), cert. denied, 522 U.S. 1135, 118 S.Ct. 1094, 140 L.Ed.2d 149 (1998); United States v. Langley, 848 F.2d 152, 153 (11th Cir.), cert. denied, 488 U.S. 897, 109 S.Ct. 241, 102 L.Ed.2d 230 (1988); United States v. Pace, 833 F.2d 1307, 1312 (9th Cir.1987), cert. denied, 486 U.S. 1011, 108 S.Ct. 1742, 100 L.Ed.2d 205 (1988); Lomax v. Alabama, 629 F.2d 413, 416 (5th Cir.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1712, 68 L.Ed.2d 205 (1981); United States v. Duvall, 537 F.2d 15, 21-22 (2d Cir.) (Friendly, J.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).