Monroe v . NHSP CV-02-069-B 11/22/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Monroe
v. Civil N o . 02-069-B Opinion N o . 2002 DNH 209 Jane Coplan, Warden for New Hampshire State Prison for Men
MEMORANDUM AND ORDER
Michael Monroe was convicted of second degree murder and
sentenced to 40 years to life in the New Hampshire State Prison
(“NHSP”). On February 6, 2002 , he filed a petition for a writ
of habeas corpus in this Court, arguing that the state trial
court violated his rights under the Fifth and Fourteenth
Amendments by admitting into evidence a coerced and involuntary
confession that he made to police without adequate Miranda
warnings. Monroe now moves for summary judgment in his favor and
issuance of the writ of habeas corpus (Doc. N o . 1 0 ) . Jane
Coplan, Warden of NHSP, also moves for summary judgment (Doc. N o .
8 ) , arguing that Monroe’s petition is without merit. For the
reasons discussed below, I grant the Warden’s motion. I. BACKGROUND1
On the evening of March 6, 1993, Monroe’s mother-in-law,
Theresa Levesque, was murdered in her home in Nashua, New
Hampshire. Because there was no sign of forced entry to the
home, nor any physical disturbance beyond the murder scene
itself, the police investigation immediately focused on
Levesque’s family and friends. Although there was no physical
evidence linking Monroe to the crime, the police gradually began
to suspect him due to inaccuracies in his explanation of where he
was the night of the murder, as well as the fact that he was
experiencing financial difficulties and would benefit from
Levesque’s death.
To assist in their investigation, the police arranged for an
undercover officer to pose as a fictitious witness. The officer,
who identified himself only as “Nick,” called Monroe on two
separate occasions in March 1993, informing Monroe that both Nick
and his girlfriend had seen him leaving Levesque’s house on the
night of the murder and would tell the police unless he paid him
1 The facts of the case are largely based upon the findings of the state court as summarized in State v . Monroe, 142 N.H. 857 (1998). Certain details have been filled in by consulting the motions of the two parties.
-2- $2,000. Monroe immediately reported these calls to the police,
but informed them only of the attempted extortion, not of Nick’s
claims that he had seen him at the murder scene. When questioned
further by the police, Monroe denied that the calls had anything
to do with Levesque’s murder.
On the evening of April 9, 1993, Nick came to the restaurant
and approached Monroe in the alley. He again insisted that he
had seen Monroe at Levesque’s house and demanded $2,000 in
exchange for his silence, but Monroe refused to pay. Nick tried
to get Monroe to call the police with him at that time, but
Monroe refused. Nick eventually left, saying that he would call
again. Monroe reported this encounter to the police as well, but
again told them that Nick did not explain why he was demanding
the money.
Throughout March and April of 1993, Monroe was interviewed
on numerous occasions by the police, including one session on
March 2 2 , when he took and failed a polygraph test. In January
1994, Monroe and his wife moved to North Carolina. In April
1994, detectives with the Nashua police arrived unannounced at
Monroe’s new place of employment and informed him that Nick had
told the police about both Monroe’s involvement in the murder and
-3- Nick’s attempts to extort money. Monroe continued to deny that
he had had any involvement in Levesque’s murder or that he had
discussed it with Nick. The police then went to see Rose at home
and gave her similar information concerning Nick. After
encouragement from the police, Rose questioned Monroe about the
discrepancies between his story and Nick’s. Monroe, however,
still insisted that he did not know what Nick had told the
police.
After encouragement from Rose, Monroe agreed to another
interview with the Nashua police, which took place at the Monroe
residence on August 2 8 , 1994, with Rose present. After three
hours of questioning by the police, Monroe agreed to take a
polygraph test. The next afternoon, at about 4:30 p.m., Monroe
and Rose went to the North Carolina State Bureau of
Investigation. Monroe was given a Miranda waiver form to read
and Agent Johnson, a North Carolina state investigator, reviewed
each paragraph of the waiver with Monroe. Monroe then signed the
waiver and took a polygraph test administered by Agent Johnson.
Agent Johnson concluded that Monroe was lying when he denied
stabbing Levesque and he continued to question Monroe for an hour
and a half following the polygraph test.
-4- When Monroe continued to deny involvement in the murder,
Rose was allowed to enter the room and speak with him. Rose sat
with Monroe, holding his hands and encouraging him to confess
while Agent Johnson continued to interrogate him. Monroe began
to get emotional and said that he could not remember being
involved in the murder.
An hour after Rose came into the room, Detective Seusing of
the Nashua police replaced Agent Johnson. The interrogation
continued until 10:30 p.m., when Monroe finally admitted to
stabbing and murdering Levesque. The police took a break, and
provided Monroe and Rose with soft drinks, and Detective Seusing
then continued the questioning. At this time, Monroe described
the events of the murder, including an argument he had had with
Levesque prior to the stabbing.
At around midnight, Monroe admitted in a tape-recorded
statement that he had voluntarily taken the polygraph test and
that he had confessed to the murder. The police arrested him for
Levesque’s murder approximately one hour later. Monroe was
transported to New Hampshire on August 3 1 , 1994, and waived his
Miranda rights again during the transfer. Upon his arrival in
Nashua, he repeated his confession to the Nashua police and
-5- reenacted the events of the murder for them.
Monroe later moved to suppress his confessions and the other
statements he had made to the police on the grounds that he had
made them involuntarily and without sufficient Miranda warnings.
The New Hampshire Superior Court (Hampsey, J.) denied this
motion, holding that all of Monroe’s statements were voluntary,
and that in each interrogation session he either had waived his
Miranda rights or was not “in custody” for Miranda purposes. See
Pl.’s Pet. for a Writ of Habeas Corpus (Doc. N o . 1 ) , Ex. H ,
Order dated Oct. 2 , 1995 on Def.’s Mot. to Dismiss and to
Suppress (“Suppression Order”).
On November 2 0 , 1995, a jury convicted Monroe of second
degree murder. On appeal, the New Hampshire Supreme Court upheld
the conviction. Monroe, 142 N.H. at 863. Deciding Monroe’s
claims under the New Hampshire State Constitution, the New
Hampshire Supreme Court concluded that the trial court did not
err in finding that Monroe’s confessions were voluntary and that
his Miranda rights were not violated. Id. at 863-870. Following
this ruling, Monroe unsuccessfully moved for a new trial, State
v . Monroe, 146 N.H. 14 (2001), and filed the habeas corpus
petition which is the subject of the instant cross-motions for
-6- summary judgment.
II. STANDARD OF REVIEW
Summary judgment may be granted on a petition for a writ of
habeas corpus when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c)(2002). A genuine
issue is one that “may reasonably be resolved in favor of either
party” and therefore “properly can be resolved only by a finder
of fact.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250
(1986). Material facts are those which “might affect the outcome
of the suit.” Id. at 248. Where the parties have submitted
cross-motions for summary judgment, “the court must consider each
motion separately, drawing inferences against each movant in
turn.” Reich v . John Alden Life Ins. Co., 126 F.3d 1 , 6 (1st
Cir. 1997).
A writ of habeas corpus must be denied unless the state
court’s decision “was contrary t o , or involved an unreasonable
application o f , clearly established Federal law, as determined by
-7- the Supreme Court of the United States.” 28 U.S.C.A. §
2254(d)(2002).2 “[C]learly established Federal law...refers to
the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions as of the time of the relevant state-court decision.”
Williams v . Taylor, 529 U.S. 3 6 2 , 412 (2000).
I first determine “whether the Supreme Court has prescribed
a rule that governs the petitioner’s claim” and, if s o , whether
the state court acted contrary to this legal rule. O’Brien v .
Dubois, 145 F.3d 1 6 , 24 (1st Cir. 1998), overruled on other
grounds by McCambridge, 2002 WL 1941478 at * 1 3 . The “contrary
to” prong is met if (1) “the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of
law,” or (2) “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [the Court’s].” Taylor, 529 U.S.
2 The threshold question for a habeas petition is whether the petitioner’s federal claims were adjudicated on the merits by the state court. See 28 U.S.C.A. § 2254(d). I note that Monroe’s claims were adjudicated on the merits since the New Hampshire Supreme Court analyzed them under the New Hampshire State Constitution, which offers equal or greater protection than the Federal Constitution against both involuntary confessions and Miranda violations. Monroe, 142 N.H. at 8 6 4 , 868 (citing State v . Aubuchont, 141 N.H. 206, 208 (1996)); see McCambridge v . Hall, N o . 00-1621, 2002 WL 1941478 at *11 (1st Cir. Aug. 2 7 , 2002).
-8- at 405. In effect the petitioner must “show that Supreme Court
precedent requires an outcome contrary to that reached by the
relevant state court.” Williams v . Matesanz, 230 F.3d 4 2 1 , 425
(1st Cir. 2000), overruled on other grounds by McCambridge, 2002
WL 1941478 at * 1 3 , (quoting O’Brien, 145 F.3d at 24-25).
Even if the state court decision was not contrary to Supreme
Court precedent, I may grant a writ of habeas corpus under the
“unreasonable application” clause if “the state court identifies
the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of
the [petitioner’s] case.” Taylor, 529 U.S. at 413. “[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.” Id. at 410. There must
be “some increment of incorrectness beyond error” which is
sufficient for the federal court to find unreasonable in its
“independent and objective judgment.” McCambridge, 2002 WL
1941478 at * 1 3 , (overruling Matesanz and O’Brien to the extent
that they adopted a stricter reading of the “unreasonable
application” clause).
In a habeas proceeding, all factual determinations made by
the state court shall be presumed to be correct, unless the
-9- petitioner demonstrates through “clear and convincing evidence”
that this presumption is erroneous. 28 U.S.C.A. § 2254(e)(1). I
apply the above standard of review in my analysis.
III. DISCUSSION
Monroe argues that the state court’s decision to allow his
confessions into evidence was “contrary to” and “an unreasonable
application of clearly established federal law,” because (1) the
confessions were involuntary and coerced, and (2) Monroe was not
given adequate Miranda warnings. I reject both arguments.
A. Voluntariness of Confessions
Monroe argues that his confessions were involuntary because
of the intimidation by the undercover officer, his wife’s
collaboration with the police, and the coercive nature of the
interrogations themselves. I first examine whether the state
court’s rejection of this argument was “contrary to” Supreme
Court precedent and then analyze whether it was an “unreasonable
application” of such precedent.
The Supreme Court has held that “coercive police activity is
a necessary predicate to the finding that a confession is not
‘voluntary’ within the meaning of the Due Process Clause of the
-10- Fourteenth Amendment.” Colorado v . Connelly, 479 U.S. 1 5 7 , 167
(1986). The key question in the coercion inquiry is “‘whether a
defendant’s will was overborne’ by the circumstances surrounding
the giving of a confession.” Dickerson v . United States, 530
U.S. 4 2 8 , 434 (2000)(quoting Schneckloth v . Bustamonte, 412 U.S.
218, 226 (1973)). To determine whether a defendant’s will was
overborne, I must consider “the totality of all the surrounding
circumstances - both the characteristics of the accused and the
details of the interrogation.” Id. (quoting Schneckloth, 412
U.S. at 2 2 6 ) .
The state court’s decision that Monroe’s confessions were
made voluntarily was not “contrary to” Supreme Court precedent.
The state court applied governing law by looking at the “totality
of the circumstances,” from which it determined that Monroe’s
will had not been overborne by the interrogation techniques at
issue. Monroe, 142 N.H. at 864. Furthermore, although Monroe
notes that “precise identicality of facts and legal issues is not
required” by the First Circuit, Vieux v . Pepe, 184 F.3d 5 9 , 63
(1st Cir. 1999), he cites to no case with “materially
indistinguishable” facts in which the Supreme Court found a
confession to be involuntary. Taylor, 529 U.S. at 405.
-11- Therefore, I now turn to whether the state court’s finding was an
“unreasonable application” of the established Supreme Court
precedent. I first examine Monroe’s specific claims regarding
the use of Nick and Rose. Next, I analyze the “totality of the
circumstances” surrounding his confession.
1. Police Deception Relating to “Nick”
Monroe’s first argument is that the use of Nick as a
fictitious witness to the murder violated his due process rights
because the deception was of an unacceptable nature and duration
and also because Nick posed a credible threat to Monroe and his
family.
Misrepresentation to a defendant of the strength of the
government’s case is not per se coercive, although it is a factor
to be considered in the “totality of the circumstances”
surrounding a confession. See Frazier v . Cupp, 394 U.S. 7 3 1 , 739
(1969)(rejecting the habeas petition of a defendant who confessed
after being falsely informed that his co-defendant had
confessed). Although the First Circuit has not specifically
addressed the type of deception conducted in the present case, it
has noted that “[police] trickery is not automatically coercion”
and that it is common for police to falsely tell suspects that
-12- they have physical evidence against them. United States v .
Byram, 145 F.3d 405, 408 (1st Cir. 1998)(upholding confession
where police falsely told defendant that he was not a suspect).
Consistent with this holding, other circuits have upheld
confessions in cases where the police lied to suspects about the
existence of eyewitness evidence. See Holland v . McGinnis, 963
F.2d 1044 (7th Cir. 1992)(police falsely stated that witness saw
defendant’s car in alley where crime occurred); Ledbetter v .
Edwards, 35 F.3d 1062 (6th Cir. 1994)(police presented defendant
with fabricated fingerprint evidence implicating him in the crime
and falsely told him that the victim and two other witnesses had
identified h i m ) .
Although threats by an undercover officer have been found to
be sufficiently coercive to require suppression of a resulting
confession, see Arizona v . Fulminante, 499 U.S. 279, 287 (1991),
Lam v . Kelchner, N o . 00-3803, 00-4122, 2002 WL 31012990 at *5
(3rd Cir. Sept. 1 0 , 2002), in such cases the confession was a
direct result of the threatening behavior and was made to the
officer immediately following the threat. In contrast, Monroe
confessed not to Nick, nor immediately following a confrontation
with Nick, but rather in North Carolina several months after he
-13- believed Nick to be in police custody in New Hampshire. Monroe,
142 N.H. at 862-863.
Consequently, the New Hampshire Supreme Court found that
even if Nick’s behavior was threatening to Monroe, that threat
“did not play any meaningful part in his decision to confess.”
Id. at 865. Although the police confronted Monroe in North
Carolina with the “evidence” obtained from Nick, he posed no
apparent threat to Monroe at that time. Indeed, the New
Hampshire Supreme Court further noted that the investigators did
not even mention Nick during the August 2 9 , 1994 interrogation
session. Id. In sum, while the deception was fairly long in
duration, it was not unreasonable for the court to conclude that
the causal connection between Nick’s actions and Monroe’s
confession was too attenuated to amount to coercion. Cf.
Frazier, 394 U.S. at 737-738; Fulminante, 499 U.S. at 283.
2. Rose’s Role in Interrogation
Monroe’s second argument is that the use of his wife Rose
during the interrogation process was coercive, comparing it to
the ruses criticized in Spano v . New York, 360 U.S. 315 (1959)
and Leyra v . Denno, 347 U.S. 556 (1954).
-14- Both Spano and Leyra involved a concerted effort by police
to trick the defendant into trusting someone who was actually
working against him. See Spano, 360 U.S. at 318-319; Leyra, 347
U.S. at 559-560. In Spano, one of the defendant’s close friends
assisted police in the final stages of interrogation by falsely
telling the defendant that an earlier confession made to the
friend would get the friend and his family in trouble. Spano,
360 U.S. at 319. In Leyra, the police brought a
psychiatrist/hypnotist into the interrogation room, had him pose
as a doctor who could treat the defendant’s sinus pain, and
listened as he used “subtle and suggestive questions” to coax a
confession out of the defendant. Leyra, 347 U.S. 559-560.
In contrast to Spano and Leyra, the police never asked Rose
to deceive Monroe, nor did she attempt to do s o . Other circuits
have upheld confessions where a relative participated in the
questioning process but there was no deceit or improper
threatening of the defendant. See United States v . McShane, 462
F.2d 5 (9th Cir. 1972)(defendant confessed after police brought
his girlfriend to police station for questioning and to talk to
defendant); United States ex rel. Church v . DeRobertis, 771 F.2d
1015 (7th Cir. 1985)(police put defendant’s older brother in cell
-15- with him, knowing that he would try to convince defendant to
confess and exculpate their younger brother). I find the
reasoning of these decisions persuasive.3
3. “Totality of the Circumstances”
Monroe’s final argument is that the “sheer length and number
of interrogation sessions” and the “various coercive techniques
employed” during them made his confession involuntary. To
support this claim he points to thirteen different instances of
interrogation. However, the New Hampshire Supreme Court found
that the four month gap between the initial ten interrogation
sessions and Monroe’s confession in North Carolina was sufficient
to make the earlier sessions irrelevant. Monroe, 142 N.H. at
865. I agree with this conclusion.
3 As additional support for his argument that his confession was involuntary, Monroe claims that the police violated his Fourteenth Amendment right to intimate association as articulated in Roberts v . United States Jaycees, 468 U.S. 609 (1984) and Patel v . Searles, N o . 00-9552, 2002 WL 31160034 (2nd Cir. Sept. 3 0 , 2002). Without deciding whether this right was in fact violated, I find no precedent for Monroe’s assertion that such an infringement would render his confession involuntary. The right to intimate association developed in Roberts and Patel is generally brought as a claim under 42 U.S.C.A. § 1983 (2002). Monroe has cited no cases, nor have I found any, which indicate that it should be a factor in evaluating the voluntariness of his confession.
-16- Therefore, my inquiry focuses on the final three
interrogation sessions, which occurred on August 2 8 , 2 9 , and 3 1 ,
of 1994. The August 28th session began at Monroe’s home in North
Carolina at approximately 9:00 a.m. and lasted a little over
three hours. Monroe was not read his Miranda rights at this
time, but there was also no evidence that he was in custody.
Indeed, the police admitted that they would have had to leave the
house if Monroe had refused to talk with them. See T r . from
Suppression Hr’g, Vol. I I I , at 514. The New Hampshire Supreme
Court also noted that this interview “maintained a conversational
tone.” Monroe, 142 N.H. at 862. The August 29th interview at
the North Carolina State Bureau of Investigation began at
approximately 4:30 p.m, at which point Monroe was given Miranda
warnings. Id. at 862-863. He was interrogated by only one
investigator at a time, with Rose assisting in the questioning at
times, and he began to confess by 10:30 p.m. Id. at 863.
In cases where the Supreme Court has found confessions to be
coerced it has usually relied heavily upon factors which were not
present in Monroe’s case, i.e., a defendant’s inability to
understand the process, isolation from those who would provide
support, and interrogation for long periods of time without
-17- respite. See Mincey v . Arizona, 437 U.S. 385 (1978)(police
interrogated defendant while he was in the hospital, seriously
injured and in great pain); Blackburn v . Alabama, 361 U.S. 199
(1960)(insane defendant interrogated for eight to nine hours in
small room filled with police with no break and no contact with
his family or his attorney); Spano, 360 U.S. 315 (emotionally
unstable defendant questioned for nearly eight straight hours by
numerous officers, requests to contact attorney denied, and
confession obtained at 3:30 a.m. after a friend extracted
sympathy from defendant by lying); Watts v . Indiana, 338 U.S. 49
(1949)(defendant held for six days and interrogated from evening
to early morning by relays of officers and not taken before
magistrate nor advised of his constitutional rights); Ashcraft v .
Tennessee, 322 U.S. 143 (1944)(defendant interrogated for 36
straight hours without sleep or rest and not permitted to contact
anyone).
Likewise, the evidence in Monroe’s case does not meet the
standard set by the First Circuit, which has upheld confessions
in cases involving stronger police tactics. See Johnson v . Hall,
605 F.2d 577 (1st Cir. 1979)(lengthy interrogation process with
numerous police officers and incriminating line-ups); see also
-18- United States v . Kiendra, 663 F.2d 349 (1st Cir. 1981)(defendant
on month-long hunger strike in solitary confinement). Although
Monroe challenges techniques used in the interrogation such as
“raised voices,” “feigned sympathy” and the role played by Rose,
he fails to demonstrate that the “totality of the circumstances”
rose to the level of impermissible coercion. Monroe was capable
of understanding both the interrogation process and the Miranda
warnings, and, in fact, was familiar with them as a result of the
earlier interrogation sessions. He was not denied contact with
his wife or others, was given sufficient breaks to eat and drink,
and the state court found that the questioning was “not
particularly intimidating.” Monroe, 142 N.H. at 866.
Given the relevant Supreme Court and First Circuit
precedent, the New Hampshire Supreme Court was not unreasonable
in concluding that the circumstances surrounding the
interrogation, including the roles played by Nick and Rose, did
not render Monroe’s confession involuntary.
B. Miranda Warnings
Monroe argues that his confession was made without an
adequate waiver of his Miranda rights, since he did not receive a
separate set of warnings prior to the post-polygraph
-19- interrogation.4 The Supreme Court has held that “the prosecution
may not use statements...stemming from custodial interrogation of
the defendant” unless it shows that the defendant was advised of
his or her constitutional rights and “voluntarily, knowingly and
intelligently” waived them. Miranda v . Arizona, 384 U.S. 436,
444 (1966).
In answering the threshold question of whether a defendant
was in custody for purposes of Miranda, the First Circuit
examines “whether there was a manifestation of a significant
deprivation of or restraint on the suspect’s freedom of
movement.” United States v . Lanni, 951 F.2d 4 4 0 , 442 (1st Cir.
1991). The state trial court found that Monroe was not in
custody until after Detective Seusing took over the
4 Monroe also argues that the Miranda warnings which he did receive were undermined by language in the written waiver stating that if he exercised his right to remain silent, the police could “conclude that [he had] refused to cooperate...and failed to demonstrate [his] truthfulness.” Pl.’s Pet. for Writ of Habeas Corpus (Doc. N o . 1 ) , Ex. G, Polygraph Advice of Rights dated Aug. 2 9 , 1994 (“Polygraph Waiver”). However, the waiver also clearly outlined Monroe’s Miranda rights and his right to stop the polygraph or interrogation at any time and Agent Johnson carefully reviewed each paragraph of the waiver with Monroe. Monroe, 142 N.H. at 867. Accordingly, I agree with the New Hampshire Supreme Court’s conclusion that Monroe was “adequately warned” of his Miranda rights at the time that he signed the waiver. Id. at 868.
-20- interrogation. Suppression Order at 2 6 . Monroe does not
challenge this finding. Thus, for purposes of analysis, I assume
that this finding was correct. Therefore, the question before me
is whether the Miranda warnings given to Monroe prior to the
polygraph test were adequate to cover the post-polygraph
interrogation.
The Supreme Court has refused to adopt a per se rule that
police must re-advise a defendant of his or her Miranda rights
prior to any post-polygraph interrogation, noting instead that
the “totality of the circumstances” must be considered. See
Wyrick v . Fields, 459 U.S. 4 2 , 47-49 (1982). In Wyrick the Court
found that a valid waiver of the defendant’s Miranda rights would
extend to post-polygraph interrogation unless there was such a
“significant change in the character of the interrogation” that
the defendant’s waiver was no longer voluntary, knowing and
intelligent. Id. at 4 7 .
In determining whether a pre-polygraph waiver is valid for
post-polygraph interrogation, the Supreme Court considers whether
the defendant should have anticipated the post-polygraph
questioning when he or she agreed to the polygraph. See Id. The
First Circuit weighs this factor along with others such as “[1]
-21- who requested the polygraph examination; [2] who initiated the
post-polygraph questioning; [3] whether the signed waiver clearly
specifies that it applies to post-polygraph questioning or only
to the polygraph test; and [4] whether the defendant has
consulted with counsel.” United States v . Leon-Delfis, 203 F.3d
103, 111-112 (1st Cir. 2000) (waiver of Sixth Amendment right to
counsel).
The New Hampshire Supreme Court in this case considered the
“totality of the circumstances” and held that the Miranda waiver
signed by Monroe before the polygraph test was sufficient to
waive his rights during the post-polygraph interrogation.
Monroe, 142 N.H. at 868. It found that Monroe “should have
anticipated that he would receive post-examination
interrogation,” citing to Wyrick and referencing both Monroe’s
prior experience with post-polygraph questioning and his
familiarity with Detective Seusing. Id. at 869. This holding
was not “contrary to” or an “unreasonable application” of Supreme
Court precedent. Crucial to my determination is the fact that
the waiver which Monroe signed prior to taking the polygraph test
expressly contemplated the possibility of polygraph questioning,
stating: “I agree to answer truthfully all questions asked (a)
-22- during the interviews conducted before and after the time I am
attached to the polygraph and (b) during the time I am attached
to the polygraph.” Polygraph Waiver (emphasis added). 5 This
language satisfies the First Circuit’s requirement that a
defendant knowingly and intelligently waive his or her Miranda
rights specifically for post-polygraph questioning. See Leon-
Delfis, 203 F.3d at 112 (finding that waivers which applied to
pre-test and test questioning did not extend to post-test
questioning since “waivers of rights are specific”). Monroe
should have fully anticipated the scope of the interrogation on
August 2 9 , 1994, given the wording of this waiver and his prior
experience with post-polygraph questioning by Detective Seusing
on March 2 2 , 1993.
5 Monroe claims that he should have received fresh Miranda warnings when Detective Seusing took over the interrogation because the written waiver only covered questioning by the North Carolina Bureau of Investigation, not the Nashua Police. However, the New Hampshire Supreme Court found that Monroe waived this argument by failing to preserve it in his notice of appeal. Monroe, 142 N.H. at 867 (citing N.H. Sup. C t . R. 16(3)(b)(2002)). Since Monroe has procedurally defaulted on this argument I may only review it if he demonstrates “cause” for the default and “prejudice” resulting therefrom or shows that a “fundamental miscarriage of justice” will result from my failure to address his claim. See Edwards v . Carpenter, 529 U.S. 446, 451 (2000). He has failed to demonstrate this in his motion, therefore I do not consider his argument in my analysis.
-23- Monroe argues that the replacement of Agent Johnson with
Detective Seusing and Rose constituted a “significant change in
the character of the interrogation,” thereby demanding repetition
of his Miranda warnings. See Wyrick, 459 U.S. at 4 7 . The First
Circuit has not decided whether a change in interrogators
necessarily requires a fresh Miranda waiver. Other circuits find
it to be relevant but not dispositive and also weigh factors such
as the defendant’s prior experience with interrogation,
continuity of the subject matter discussed and the time lapse
between the waiver and the confession. See Jarrell v . Balkcom,
735 F.2d 1242, 1254 (11th Cir. 1984); United States v . Hopkins,
433 F.2d 1041, 1045 (5th Cir. 1970). See also United States v .
Gillyard, 726 F.2d 1426, 1429 (9th Cir. 1984)(relying also on
lack of clear indication in defendant’s Miranda warnings that he
would be subjected to post-polygraph interrogation). Monroe’s
waiver specifically included post-polygraph interrogation, he had
experienced a similar waiver and interrogation with Detective
Seusing in the past, and Detective Seusing’s questions concerned
the same material as Agent Johnson. Accordingly, the replacement
of Agent Johnson with Detective Seusing did not require the
issuance of fresh Miranda warnings.
-24- Three of the factors applied by the First Circuit in Leon-
Delfis do weigh in Monroe’s favor: i.e., Monroe took the
polygraph test at the request of his wife and the police, he did
not initiate the post-polygraph questioning, and he did not
consult with counsel at the time of the interrogation. However,
the pre-polygraph waiver clearly informed Monroe that he had the
right to request counsel and to stop the polygraph or interviews
at any time, yet he did neither. Monroe, 142 N.H. at 869.
Viewed in light of the “totality of the circumstances,” it was
not unreasonable for the New Hampshire Supreme Court to conclude
that the waiver signed by Monroe prior to the polygraph provided
adequate protection for him during the post-polygraph interview.
IV. CONCLUSION
Given the limited standard of review which I must apply
under § 2254(d)(1), I find that the state court’s decision was
not “contrary to” or an “unreasonable application” of Supreme
Court precedent. Accordingly, I grant the Warden’s motion for
summary judgment (Doc. N o . 8 ) and deny Monroe’s motion for
summary judgment (Doc. N o . 1 0 ) .
-25- SO ORDERED.
Paul Barbadoro Chief Judge
November 2 2 , 2002
cc: Philip T . McLaughlin, Esq. Nicholas Court, Esq. Andrew R. Schulman, Esq.
-26-