Ricardo H. Robinson v. Robert Glen Borg, Warden

918 F.2d 1387

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 1990
• Docket: 89-55126
• Status: Published

Opinions

REINHARDT, Circuit Judge:

Appellant Ricardo H. Robinson appeals the district court’s denial of his petition for writ of habeas corpus. He maintains that the state trial court improperly admitted incriminating statements he made to police during custodial interrogation, in violation of his rights under the fifth and fourteenth amendments. Robinson asserts two independent grounds for relief. First, he claims that he did not make a knowing and intelligent waiver of his right to counsel during interrogation because he did not understand that he had a right to appointed counsel. Second, he contends that, prior to making the inculpatory statements admitted at trial, he unequivocally invoked his right to counsel. We agree with Robinson that his statement “I have to get me a good lawyer, man. Can I make a phone call?” constituted an unequivocal request for counsel, requiring that the interrogation cease. Accordingly, we reverse the district court’s denial of Robinson’s petition for habeas corpus relief.¹

I. FACTS

Following a jury trial, Ricardo Robinson was convicted of first-degree (felony) murder, mayhem, assault with a caustic substance, and conspiracy to commit mayhem. Part of the evidence introduced against Robinson at trial consisted of incriminating statements he made to police during custodial interrogation. Robinson sought to suppress these statements prior to trial, arguing that he had not knowingly and intelligently waived his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the police did not honor his subsequent request for counsel. Following a hearing, at which a tape and transcript of the interrogation were introduced, the state trial court denied Robinson’s motion to suppress. The statements were then admitted into evidence at his trial.

The suppression hearing reveals that the police advised Robinson of his Miranda rights before beginning questioning. The parties agree that the Miranda warnings given were correct on their face. When asked if he wished to give up his right to remain silent, Robinson stated, “No. I mean ... No, I’ll speak now and answer questions without an attorney.” In response to a series of questions designed to clarify whether he wished to give up his right to an attorney at questioning, Robinson replied, “If I say yes, I’d want an attorney then I’d have to get one here, is that right? (Unintelligible) Yeah, I give it up.” Police then proceeded to interrogate Robinson for approximately four and one-half hours.

At one point during the interrogation, Robinson said, “Maybe I shoulda got an attorney.” After further questioning, he asked, “Man ... can I make a phone call?” The detective questioning Robinson ignored this request, stating, “Hey, I was going to play a ... portion of a tape for you in a second; I want you to listen to it, O.K.?” After more questioning, Robinson again asked to make a phone call, this time, however, making it clear that he wished to obtain counsel. He stated, “I have to get me a good lawyer, man. Can I make a phone call?”² One of the interrogators responded by saying “sure,” and then asking Robinson if he wished to call another suspect (and future co-defendant) in the case. When Robinson immediately replied “No” the interrogator resumed questioning him. Questioning continued until Robinson asked to call his mother, at which time the interrogators agreed to let him make that call. When Robinson returned from telephoning, the detectives resumed the interrogation. They then questioned him at great length concerning his knowledge of and participation in the crime under investigation. It was during this part of the interrogation that Robinson made the incriminating statements that were the subject of his pretrial motion to suppress.

Following his conviction, Robinson appealed to the California Court of Appeals. The court of appeals affirmed, ruling that the trial court’s denial of the motion to suppress was amply supported by the record. The California Supreme Court denied Robinson’s petition for review.

After two unsuccessful state habeas petitions, Robinson filed his federal habeas petition. The district court, adopting the Magistrate’s Report and Recommendation without modification, denied the petition. The court concluded that Robinson had knowingly and intelligently waived his right to counsel prior to the time the questioning began. The court also found that Robinson did not make an unequivocal request for counsel during the interrogation. Lastly, the court noted that, even if Robinson’s statement were interpreted as an equivocal request for counsel, this court’s decision in Fouche should not be applied retroactively to this case.³

II. STANDARD OF REVIEW

The state court’s determination of what is said during an interrogation constitutes a factual finding entitled to a presumption of correctness under 28 U.S.C. § 2254(d). See McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied sub nom. McKenzie v. McCormick, 488 U.S. 901,109 S.Ct. 250, 102 L.Ed.2d 239 (1988). Whether the suspect’s words constitute a request for counsel is a legal determination which we review de novo. Smith v. Endell, 860 F.2d 1528, 1532 n. 3 (9th Cir.1988) (“[T]he state court’s characterization of Smith’s words is hardly a finding of fact.... The constitutional effect of the dialogue is a legal question subject to our independent review.”).

III. DISCUSSION

Under Edwards v. Arizona, 451 U.S. 477, 484-85, 101. S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), if at any point during an interrogation a suspect invokes his right to counsel, all questioning must cease and may not resume in the absence of counsel unless the suspect himself initiates the further discussions. See also Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488 (1984) (per curiam) (“[I]f the accused invoked his right to counsel, courts may admit his responses only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.”). Once a suspect has requested the presence of an attorney, “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.” Edwards, 451 U.S. at 484, 101 S.Ct. at 1885. The Supreme Court has stated that Edwards establishes a “ ‘rigid’ prophylactic rule.” Smith v. Illinois, 469 U.S. at 95, 105 S.Ct. at 492-93 (citing Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568-69, 61 L.Ed.2d 197 (1979)).

At issue here is whether Robinson invoked his right to counsel when he said, “I have to get me a good lawyer, man. Can I make a phone call?” Requests for counsel are to be given broad effect even when less than all-inclusive. Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 832, 93 L.Ed.2d 920 (1987). “Doubts must be resolved in favor of protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986); see also Smith v. Endell, 860 F.2d 1528, 1531 n. 2 (9th Cir.1988); Grooms v. Keeney, 826 F.2d 883, 886 (9th Cir.1987); Owen v. Alabama, 849 F.2d 536, 538-39 (11th Cir.1988); United States v. Gotay, 844 F.2d 971 (2nd Cir.1988). Moreover, a suspect’s “postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Smith v. Illinois, 469 U.S. at 100, 105 S.Ct. at 495 (emphasis in original). Nevertheless, the Supreme Court has recognized that “[o]n occasion, an accused’s asserted request for counsel may be ambiguous or equivocal.” Id. at 95, 105 S.Ct. at 493.

Robinson argues that his statement that he had to get a good lawyer followed immediately by his request to make a phone call constituted an unambiguous and unequivocal invocation of his fifth amendment right to counsel. We agree. While the word “attorney” has no talismanic qualities, see United States v. Jardina, 747 F.2d 945, 949 (5th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 833 (1985), Robinson made clear his perceived need for a lawyer and his desire to obtain the assistance of counsel. No more is required. Upon hearing Robinson’s request it was incumbent upon the police to cease the interrogation, and their failure to do so renders inadmissible any statements he made in response to their continued questioning. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85.

The State contends that Robinson’s statement was not a request for counsel because he was not attempting to invoke a present right to counsel. Rather, according to the State, Robinson’s remark reflected his recognition that he faced a difficult criminal trial ahead. We do not believe that as a matter of either logic or semantics Robinson’s statement is reasonably susceptible to such an interpretation. Nor- do our cases permit such a construction.

In analyzing a defendant’s request for counsel, we take a defendant’s words “understood as ordinary people would understand them.” Connecticut v. Barrett, 479 U.S. at 529, 107 S.Ct. at 832. Robinson’s statement “I have to get me a good lawyer, man. Can I make a phone call?”, made in the middle of an interrogation, can only reasonably be understood as expressing a desire to obtain counsel and to do so immediately, not at a trial several months later. Robinson’s request to make a phone call immediately after stating that he had to get a good lawyer was a request to make a call at that moment, and the interrogators so understood it. The purpose of the call was obvious; Robinson wanted to obtain a lawyer—and he wanted one in connection with the interrogation he was then undergoing. If Robinson had only wanted an attorney for a trial to be held several months later, he could well have waited until after the end of the interrogation to make his call. The only reasonable explanation for Robinson’s decision to interrupt the questioning and ask to make the call was that he wanted an attorney in connection with the interrogation.⁴

Robinson was not required to state his request with any more temporal particularity. In rejecting a similar contention that defendants did not intend their request for counsel to encompass representation during police questioning (as opposed to formal legal proceedings), the Supreme Court in Michigan v. Jackson, 475 U.S. at 633 n. 7, 106 S.Ct. at 1409-10 n. 7, stated:

Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney ... he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel.... The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.

The Court has therefore not required that a suspect specify that he wants an attorney at questioning in order to invoke a “present” right to counsel. In Oregon v. Bradshaw, 462 U.S. 1039, 1041-42, 103 S.Ct. 2830, 2832-33, 77 L.Ed.2d 405 (1983) (plurality opinion), for example, the Court considered defendant’s statement “I do want an attorney before it goes very much further” to constitute a present invocation of that right. Similarly, in Edwards v. Arizona, 451 U.S. at 479, 101 S.Ct. at 1882, the Court held that the statement “I want an attorney before making a deal” was a request for counsel that precluded any further questioning, even though no “deal” was ever made. See United States v. Go-tay, 844 F.2d 971, 976 (2nd Cir.1988) (noting that “the Supreme Court has been notably generous in construing the temporal aspects of requests for counsel”). Robinson’s statement was sufficient to invoke his right to counsel effective immediately. There is no requirement that a suspect specify that he wants counsel at the questioning. Robinson was not required to make a temporal statement—-to say that he wanted counsel right away—and his failure to do so does not render his invocation of his right less than immediate.

Nor do we find Robinson’s request for counsel to be ambiguous or equivocal in any other respect. As noted, Robinson made his desire to obtain an attorney clear. That his statement was a sufficient invocation of his right to counsel is supported by a number of cases that have found similar or less direct requests to be unequivocal. In Smith v. Illinois, 469 U.S. at 96, 105 S.Ct. at 493, the Supreme Court held that a suspect had made an unequivocal request for an attorney when, upon learning that he had the right to the presence of counsel, he stated, “Uh, yeah, I’d like to do that.” Recently, in Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir.1989), we treated defendant’s statement “You know, I’m scared now. I think I should call an attorney.” as an invocation of his right to couii-sel. The defendant in Smith v. Endell, 860 F.2d 1528, 1531 (9th Cir.1988), had asked police, “Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?” We held that this request was conditional, but was not equivocal or ambiguous. And in United States v. Nordling, 804 F.2d 1466, 1471-72 (9th Cir.1986), we found that defendant’s statement that his interrogators could call his attorney to identify him and that he wanted to speak with his lawyer when they did was a sufficient assertion of his right to counsel. See also Owen v. Alabama, 849 F.2d at 538-39 (defendant’s response to Miranda warning concerning right to counsel, “I think I’ll let y’all appoint me one,” was arguably a clear invocation of right to counsel which should be interpreted broadly); United States v. Gotay, 844 F.2d at 976 (accused’s statement that she could not afford a lawyer and was concerned about obtaining a lawyer was arguably a clear request for counsel, requiring that questioning cease); White v. Finkbeiner, 611 F.2d 186, 190 (7th Cir.1979) (defendant’s statement “I’d rather see an attorney” when asked if he wanted to talk constituted a request for counsel); United States v. Clark, 499 F.2d 802, 806 (4th Cir.1974) (suspect’s remark "I had better talk to a lawyer” considered a request for a lawyer). As these cases illustrate, a suspect is required neither to use any magical formulation to invoke his rights nor to express his desire to obtain counsel with lawyer-like precision. All that is required is that he make his desire to consult with an attorney clear. Robinson’s statement satisfies that requirement.

Our conclusion that Robinson’s invocation of his right was clear is strengthened by a comparison with cases in which a defendant’s request has been held to be ambiguous or equivocal. In United States v. Fouche, 776 F.2d 1398 (9th Cir.1985), we first had occasion to consider what constitutes an effective assertion of the right to counsel. We held that defendant’s statement that he “might want to talk to a lawyer” and wanted to make a phone call was an equivocal request for counsel, requiring that any further questioning be limited to clarifying the defendant’s request. Fouche, 776 F.2d at 1405. On appeal after remand, we emphasized the ambivalent or uncertain nature of Fouche’s request, noting:

in some circumstances ... the request for counsel may be equivocal or ambiguous, as when Fouche said that he might want to talk to a lawyer or might want to talk to the FBI agents.

United States v. Fouche, 833 F.2d 1284, 1287 (9th Cir.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988) (emphasis in original). Our other cases have been similar. In Grooms v. Keeney, 826 F.2d 883, 886-87 (9th Cir.1987), we found that the defendant’s request for counsel was ambiguous or equivocal when he answered “I don’t know” in response to the question whether he wished to consult with an attorney. More recently, in Robtoy v. Kincheloe, 871 F.2d 1478, 1482 (9th Cir.1989), cert. denied sub nom., Robtoy v. Callahan, — U.S. -, 110 S.Ct. 1483, 108 L.Ed.2d 619 (1990), we treated defendant’s remark “maybe I should call my attorney” as an equivocal request for counsel. Accord United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir.1984) (holding that defendant’s request for counsel was equivocal when he stated “maybe I should talk to an attorney before making a further statement,” followed by, “why should I not get an attorney?”). Finally, in distinguishing the defendant’s statement in Smith v. Endell, 860 F.2d at 1531, from an ambiguous or equivocal response, we noted, “[Smith’s] statement was not equivocal; there was no ‘might’ or ‘maybe’ or ‘perhaps.’ ”

Robinson’s statement “I have to get me a good lawyer, man. Can I make a phone call?” lacks the uncertainty and indecisiveness that is necessary to warrant classifying a statement as ambiguous or equivocal. Robinson made his perceived need for a lawyer, as well as his desire to make a phone call to obtain one, clear, and his statement evinces no doubt or indecisiveness as to whether he should seek an attorney’s aid. “[Tjhere was no ‘might’ or ‘maybe’ or ‘perhaps.’ ” Id. Robinson’s statement was an unambiguous and unequivocal request for counsel, requiring that all interrogation cease immediately. The statements he made in response to continued questioning after that request must be suppressed.⁵

Accordingly, we reverse the district court’s denial of Robinson’s habeas corpus petition and remand for proceedings not inconsistent with this opinion.⁶

REVERSED AND REMANDED.

1 . Robinson argued, in the alternative, that his statement was an equivocal request for counsel and that, pursuant to our decision in United States v. Fouche, 776 F.2d 1398 (9th Cir.1985), police were required to discontinue interrogation except for questions designed to clarify his request. Appellee countered that the holding in Fouche should not be applied retroactively to this case. Because we conclude that Robinson's statement constituted an unequivocal rather than an equivocal request for counsel, we need not reach that issue. Similarly, although Robinson’s contention that his waiver was not knowing and intelligent is one of serious concern, our holding that Robinson unequivocally asserted his right to counsel prior to making the inculpatory statements at issue will require suppression of those statements, and it is, therefore, unnecessary for us to reach his waiver contention.

2 . On appeal, the State argues that Robinson's real words were: "I think you'd make a good lawyer, man. Can I make a phone call?” The state trial court apparently, and the federal magistrate explicitly, found that Robinson stated, "I have to get me a good lawyer, man. Can I make a phone call?” After reviewing the tape of the interrogation, we have no doubt that the state court’s and the magistrate's findings are correct.

3 . As noted above, we will not address whether Robinson’s waiver was valid or whether Fouche would be applied retroactively, as resolution of these issues is not necessary to the disposition of this case.

4 . In arguing that Robinson was not invoking a present right to counsel, the dissent and the State ask us to look at the "fuller context of the entire interrogation." The magistrate, in agreeing with the State, relied on a statement by the California Superior Court judge that, "there was an alluding to an attorney on a couple of occasions ... but again, basing my feelings on the totality of the circumstances prior to and subsequent to, there was never really an asking by Mr. Robinson for an attorney.” (emphasis added). The dissent also relies heavily on Robinson’s post-request responses. The dissent and the State, as well as the magistrate and the state court, err by looking at the "totality of the circumstances,” particularly the events subsequent to Robinson's request, to determine whether he adequately invoked his right to counsel. The Supreme Court in Smith v. Illinois emphasized that an accused’s postrequest responses cannot be used to cast doubt on the clarity of the initial request, 469 U.S. at 100, 105 S.Ct. at 495, and "[t]he totality of the circumstances test, which is used to determine whether an accused has ‘knowingly and voluntarily’ waived his Miranda rights, has no role in the determination of whether an accused's request for counsel is clear or equivocal.” Owen v. Alabama, 849 F.2d at 539 (citation omitted); cf. Smith v. Illinois, 469 U.S. at 97-98, 105 S.Ct. at 493-94.

5 . The State does not contend that the failure to suppress Robinson's statements is harmless error. See Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967).

6 . The unfortunate comments regarding Miranda with which our colleague introduces his dissent require a brief response. As was true in Miranda itself, where the defendant was ultimately retried and convicted, see State v. Miranda, 104 , 450 P.2d 364, cert. denied, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969), our opinion does not foreclose the possibility of a new trial. It does not require that Robinson be returned to the streets or that any prison doors be unlocked. The state is free to try him again. To represent to the public that California will release him pending a new trial is disingenuous at best. Today, unremarkably, we hold only that a conviction obtained in violation of the fifth amendment cannot stand. We are required by well-established precedent and the Constitution to reach that result. Despite the dissent’s attempt to denigrate Miranda and its progeny to the status of mere prophylactic rules unworthy of real implementation, the precedents we apply here are of constitutional magnitude and as binding as any other decisions of the United States Supreme Court.

Judge Trott may believe that Miranda was wrongly decided. It was, after all, a controversial decision in 1966. Since then, however, it has become settled law upon which defendants and law enforcement officials alike have come to rely. A citation to the Miranda dissent today, therefore, carries as much weight as would a citation to the dissent in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) or to Justice Butler’s opinion disagreeing with the rule announced in Erie R.R. v. Tompkins, 304 U.S. 64, 80, 58 S.Ct. 817, 823, 82 L.Ed. 1188 (1938). Those Supreme Court decisions were also controversial in their day, but like Miranda, have since been fully accepted by those in the constitutional mainstream.