Self v. Collins
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Opinion
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 91-2287 _____________________
MICHAEL LLOYD SELF,
Petitioner-Appellee,
versus
JAMES A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas
_________________________________________________________________
(September 22, 1992)
Before SNEED,1 REAVLEY, and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
This appeal is bottomed on "our federalism" and turns on the
proper application of the 28 U.S.C. § 2254(d) presumption of
correctness accorded state findings of fact. Its genesis is
Michael Lloyd Self's conviction in 1973 for murder. In 1991, the
district court granted his habeas application, holding that his
confession, the critical evidence at trial, was obtained in
violation of his Fifth Amendment privilege against self-
incrimination and his Sixth Amendment right to counsel. Based on
our review of the state record, we conclude that the district
1 Senior Circuit Judge of the Ninth Circuit, sitting by designation. court, inter alia, violated § 2254(d) by disregarding state
findings which are fairly supported by the record, and so erred, in
part, by making credibility choices contrary to those of the state
judge who observed the witnesses' demeanor. We hold that the
challenged confession was not obtained contrary to the Constitution
and, therefore, REVERSE and REMAND for entry of an order of
dismissal.
I.
Self's problems with law enforcement began in 1970, when he
was accused of "window peeping". In exchange for his agreeing to
psychiatric treatment, no charges were filed. Self received such
treatment on three occasions between October 1970 and January 1971.
About seven months later, on August 4, 1971, Sharon Shaw and
her friend, Rhonda Renee Johnson, were last seen, when they left
Webster, Texas, to make a day-trip to Galveston, about 25 miles
away. (Located in Harris County, near Houston, Webster had a
population of around 1,500.) Rhonda Johnson's grandfather was a
member of the city council, which appointed the police chief. J.
C. Norman was the chief then, and he and Self were friends.
Webster policeman David Coburn took charge of the investigation
into the girls' disappearance. In early 1972, their skeletal
remains were discovered in a desolate area near Webster.2
That May, after the city council elections, the council
replaced chief Norman with Don Morris; Tommy Deal was hired as
2 The medical examiner found no damage to the skulls or bones and was unable to determine the cause of death.
- 2 - assistant chief. Both had been troopers with the Texas Department
of Public Safety and had worked in an office in the Webster police
department. Self had several encounters with Morris, before and
after his appointment. While Morris was working as a security
guard at an apartment complex, he accused Self of looking up girls'
dresses as they walked up the stairs. He also talked to Self about
gasoline thefts from city fire trucks, and threatened to jail him
if he did not stop. (Self was a volunteer fireman and was often at
the fire department, which was housed in the same building as the
police department.) And, in early June, about a week before Self's
arrest for Shaw's and Johnson's murders, Morris questioned him
about possession of marijuana.
At around 5:00 a.m. on Friday, June 9, approximately three
weeks after Morris and Deal took charge of the police force, Self
was briefly questioned at his place of work about the murders.
When he left work around 7:00 a.m., he agreed to go to the Webster
police department for further questioning. After three hours of
interrogation, he signed a written confession to the murders.
Self was then taken to nearby Houston, where he received a
magistrate's warning; and Dewey Meadows, a Houston attorney, was
appointed to represent him. Meadows advised Self not to speak to
the police unless Meadows was present. Self told Meadows he wanted
to take a polygraph examination to prove his innocence; Meadows
advised against it.
That afternoon, Self was taken to the police department in
nearby LaPorte, where charges were filed against him and nude
- 3 - photographs made. He then directed police to the location where
the remains had been found. Next, he was examined at a hospital.
Late that afternoon, a Harris County Deputy Sheriff visited Self in
his cell in Webster; Self denied any mistreatment.
The next day, Saturday, June 10, part of an interrogation of
Self was taped. Later that afternoon, he was moved to the county
jail in Houston, where, the next Monday, June 12, he was questioned
by various law enforcement officers about the murders of other
girls in the area and given a polygraph examination. After the
examination, he signed a second confession to the murders.
Finally, on June 23, Self directed another Harris County
Deputy Sheriff to the locations described in his June 12
confession, including the area where the remains had been found.
Self moved to suppress the June 9 and 12 confessions prior to
trial in mid-1973 for Shaw's murder.3 During trial, after
conducting an extensive hearing outside the presence of the jury,
the state court entered findings of fact that both confessions were
voluntarily given and admissible. After the June 12 confession was
admitted in evidence,4 Self testified that the June 9 confession
3 Self was also charged with Johnson's murder in a separate indictment; it was later dismissed. 4 Although only the June 12 confession was introduced, the contents of the June 9 confession were before the jury, primarily as the result of direct examination of Self. Both confessions were introduced as exhibits in the state post-conviction hearings.
In closing argument, Self's counsel asserted that the state did not introduce the June 9 confession into evidence "because there are so many irregularities between the first and second one" and because it was coerced. The prosecutor responded that Self could have introduced the June 9 confession, but not the state,
- 4 - was coerced and that he would not have signed the second but for
the first. Concomitantly, the jury was instructed that it could
not consider the June 12 confession unless it found, beyond a
reasonable doubt, that Self had been warned of his rights and had
given the confession freely and "without compulsion or
persuasion".5
The jury found Self guilty of murder, and sentenced him to
life imprisonment in May 1973. The conviction was affirmed in
December 1974 by the Texas Court of Criminal Appeals. Self v.
State, 513 S.W.2d 832 (Tex. Crim. App. 1974).6 That next November,
Self's first state habeas application was denied by that court
without written order. Ex parte Self, Application No. 5383
(November 26, 1975). And, his first federal application was
dismissed in late 1978 for failure to exhaust state remedies. Self
v. Estelle, No. 75-H-2186 (S.D.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 91-2287 _____________________
MICHAEL LLOYD SELF,
Petitioner-Appellee,
versus
JAMES A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas
_________________________________________________________________
(September 22, 1992)
Before SNEED,1 REAVLEY, and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
This appeal is bottomed on "our federalism" and turns on the
proper application of the 28 U.S.C. § 2254(d) presumption of
correctness accorded state findings of fact. Its genesis is
Michael Lloyd Self's conviction in 1973 for murder. In 1991, the
district court granted his habeas application, holding that his
confession, the critical evidence at trial, was obtained in
violation of his Fifth Amendment privilege against self-
incrimination and his Sixth Amendment right to counsel. Based on
our review of the state record, we conclude that the district
1 Senior Circuit Judge of the Ninth Circuit, sitting by designation. court, inter alia, violated § 2254(d) by disregarding state
findings which are fairly supported by the record, and so erred, in
part, by making credibility choices contrary to those of the state
judge who observed the witnesses' demeanor. We hold that the
challenged confession was not obtained contrary to the Constitution
and, therefore, REVERSE and REMAND for entry of an order of
dismissal.
I.
Self's problems with law enforcement began in 1970, when he
was accused of "window peeping". In exchange for his agreeing to
psychiatric treatment, no charges were filed. Self received such
treatment on three occasions between October 1970 and January 1971.
About seven months later, on August 4, 1971, Sharon Shaw and
her friend, Rhonda Renee Johnson, were last seen, when they left
Webster, Texas, to make a day-trip to Galveston, about 25 miles
away. (Located in Harris County, near Houston, Webster had a
population of around 1,500.) Rhonda Johnson's grandfather was a
member of the city council, which appointed the police chief. J.
C. Norman was the chief then, and he and Self were friends.
Webster policeman David Coburn took charge of the investigation
into the girls' disappearance. In early 1972, their skeletal
remains were discovered in a desolate area near Webster.2
That May, after the city council elections, the council
replaced chief Norman with Don Morris; Tommy Deal was hired as
2 The medical examiner found no damage to the skulls or bones and was unable to determine the cause of death.
- 2 - assistant chief. Both had been troopers with the Texas Department
of Public Safety and had worked in an office in the Webster police
department. Self had several encounters with Morris, before and
after his appointment. While Morris was working as a security
guard at an apartment complex, he accused Self of looking up girls'
dresses as they walked up the stairs. He also talked to Self about
gasoline thefts from city fire trucks, and threatened to jail him
if he did not stop. (Self was a volunteer fireman and was often at
the fire department, which was housed in the same building as the
police department.) And, in early June, about a week before Self's
arrest for Shaw's and Johnson's murders, Morris questioned him
about possession of marijuana.
At around 5:00 a.m. on Friday, June 9, approximately three
weeks after Morris and Deal took charge of the police force, Self
was briefly questioned at his place of work about the murders.
When he left work around 7:00 a.m., he agreed to go to the Webster
police department for further questioning. After three hours of
interrogation, he signed a written confession to the murders.
Self was then taken to nearby Houston, where he received a
magistrate's warning; and Dewey Meadows, a Houston attorney, was
appointed to represent him. Meadows advised Self not to speak to
the police unless Meadows was present. Self told Meadows he wanted
to take a polygraph examination to prove his innocence; Meadows
advised against it.
That afternoon, Self was taken to the police department in
nearby LaPorte, where charges were filed against him and nude
- 3 - photographs made. He then directed police to the location where
the remains had been found. Next, he was examined at a hospital.
Late that afternoon, a Harris County Deputy Sheriff visited Self in
his cell in Webster; Self denied any mistreatment.
The next day, Saturday, June 10, part of an interrogation of
Self was taped. Later that afternoon, he was moved to the county
jail in Houston, where, the next Monday, June 12, he was questioned
by various law enforcement officers about the murders of other
girls in the area and given a polygraph examination. After the
examination, he signed a second confession to the murders.
Finally, on June 23, Self directed another Harris County
Deputy Sheriff to the locations described in his June 12
confession, including the area where the remains had been found.
Self moved to suppress the June 9 and 12 confessions prior to
trial in mid-1973 for Shaw's murder.3 During trial, after
conducting an extensive hearing outside the presence of the jury,
the state court entered findings of fact that both confessions were
voluntarily given and admissible. After the June 12 confession was
admitted in evidence,4 Self testified that the June 9 confession
3 Self was also charged with Johnson's murder in a separate indictment; it was later dismissed. 4 Although only the June 12 confession was introduced, the contents of the June 9 confession were before the jury, primarily as the result of direct examination of Self. Both confessions were introduced as exhibits in the state post-conviction hearings.
In closing argument, Self's counsel asserted that the state did not introduce the June 9 confession into evidence "because there are so many irregularities between the first and second one" and because it was coerced. The prosecutor responded that Self could have introduced the June 9 confession, but not the state,
- 4 - was coerced and that he would not have signed the second but for
the first. Concomitantly, the jury was instructed that it could
not consider the June 12 confession unless it found, beyond a
reasonable doubt, that Self had been warned of his rights and had
given the confession freely and "without compulsion or
persuasion".5
The jury found Self guilty of murder, and sentenced him to
life imprisonment in May 1973. The conviction was affirmed in
December 1974 by the Texas Court of Criminal Appeals. Self v.
State, 513 S.W.2d 832 (Tex. Crim. App. 1974).6 That next November,
Self's first state habeas application was denied by that court
without written order. Ex parte Self, Application No. 5383
(November 26, 1975). And, his first federal application was
dismissed in late 1978 for failure to exhaust state remedies. Self
v. Estelle, No. 75-H-2186 (S.D. Tex., September 21, 1978).
A few months later, in January 1979, Self filed his second
state application. That March, at the state's request, the state
because the officer who warned Self prior to that confession was not available to testify. 5 The jury was instructed that the confession would not be voluntary if
any officer threatened to ... beat [Self] or in any manner coerced [Self] or used any improper influence on [Self], and that [Self], through fear or under duress or under any other improper influence was thereby induced to sign such a statement.... 6 It rejected Self's contention that the June 12 confession was inadmissible because it was made outside the presence of his counsel, concluding that he had validly waived that right. 513 S.W.2d at 837-38.
- 5 - court (the presiding judge at trial) ordered an evidentiary hearing
on the issue of effectiveness of counsel. Between June 1979 and
December 1980, it heard testimony on 14 days7; and the scope of the
hearing was expanded to include the voluntariness of Self's
confessions. In addition to the testimony, the habeas record
included, inter alia, the direct appeal record. In May 1981, the
state judge entered detailed findings of fact and conclusions of
law, recommending that the writ be denied. Ten months later, the
Texas Court of Criminal Appeals denied this second application
without written order on the findings of the trial court. Ex parte
Self, Application No. 5383 (February 24, 1982).
In his second federal application, filed three years later in
February 1985, Self sought relief on three grounds: (1)
involuntary confession8; (2) suppression of exculpatory evidence;
and (3) ineffective assistance of trial counsel. The magistrate
judge ordered an evidentiary hearing, but cancelled it after both
parties agreed that it was unnecessary, because the issues could be
determined on the state record.
7 Two of the hearings were devoted to an April 1980 confession to the murders by Patrick Heffernan. The record amply supports the state finding that he did not commit them. As that court noted, his story was completely unrealistic. 8 Self claimed that "the introduction of the June 9, 1972 statement at trial was in violation of the Fifth Amendment". As stated, that confession was not admitted into evidence; and the state and district courts properly interpreted Self's claim as referring to the June 12 confession. Self did not claim in his petition that the confession was also obtained in violation of the Sixth Amendment, but later briefed that issue.
- 6 - In a 39-page opinion, the magistrate judge recommended in
August 1990 that relief be granted, on the ground that Self's
conviction resulted from involuntary confessions, obtained in
incrimination and his Sixth Amendment right to counsel. But, it
found that the suppression of evidence and ineffective counsel
claims were meritless.9
After conducting a de novo review of the state's extensive
objections and the record, the district court in March 1991 adopted
the recommendation.10
II.
A. Applicable Law
"Th[e] interest in federalism recognized by Congress in
enacting § 2254(d) requires deference by federal courts to factual
determinations of all state courts." Sumner v. Mata, 449 U.S. 539,
547 (1981). That section provides for a presumption of correctness
for those findings, subject to specific exceptions. One is when,
based on review of the pertinent part(s) of the record, the
district court "concludes that such factual determination is not
fairly supported by the record". 28 U.S.C. § 2554(d)(8).11
9 Self did not challenge their denial. 10 It stayed execution of its judgment pending appeal by the state, but granted Self's motion for immediate release upon posting bond. This court stayed his release, in part because of the Supreme Court's just released opinion in Arizona v. Fulminante, __ U.S. __, 111 S. Ct. 1246 (1991); and subsequently, the parties were requested to brief its application. See note 15, infra.
11 Section 2254(d) states:
- 7 - (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit--
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such
- 8 - 1. Standard of Review
We freely review the district court's legal conclusions,
Johnson v. Puckett, 929 F.2d 1067, 1070 (5th Cir.), cert. denied,
___ U.S. ___, 112 S. Ct. 274 (1991); but "[t]he factual findings of
a federal district court in a habeas action should not be set aside
unless they are clearly erroneous."12 Guzman v. Lensing, 934 F.2d
80, 82 (5th Cir. 1991); see also Amadeo v. Zant, 486 U.S. 214, 223
(1988). However, it is well-settled in this circuit that the
clearly erroneous standard of review does not apply to factual
findings that result from an incorrect application of governing
factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
28 U.S.C. § 2254(d) (emphasis added). 12 A finding of fact "`is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). See Fed. R. Civ. P. 52(a).
- 9 - legal standards. E.g., Matter of Bradley, 960 F.2d 502, 507 (5th
Cir. 1992); Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc.,
659 F.2d 695, 703 (5th Cir. Unit A 1981), cert. denied, 457 U.S.
1126 (1982).
As stated, the state findings, including for the motion to
suppress and the habeas application,13 are presumptively correct
unless they are not "fairly support[ed]" by the record, or another
of the exceptions applies, or Self establishes "by convincing
evidence" that they are erroneous. 28 U.S.C. § 2254(d).
Accordingly, if the district court has made factual findings that
are based on an incorrect application of the § 2254(d) governing
standard, those findings are not subject to the clearly erroneous
standard of review. Thus, in reviewing the district court's
factual findings for clear error, we must first determine whether
it properly applied § 2254(d) in making them.
In Marshall v. Lonberger, 459 U.S. 422 (1983), in comparing
the deference due state findings with the clearly erroneous
standard applied to federal findings, the Court stated: "We
greatly doubt that Congress, when it used the language `fairly
supported by the record' considered `as a whole'[,] intended to
authorize broader federal review of state court credibility
determinations than are authorized in appeals within the federal
system itself." Id. at 434-35. Moreover, the district court may
not dispense with the presumption of correctness without providing
13 See also note 6, supra, for the finding on direct appeal by the Texas Court of Criminal Appeals that the June 12 confession was admissible.
- 10 - "at least some reasoned written references to § 2254(d) and the
state-court findings". Sumner v. Mata, 449 U.S. at 549. It must
therefore "include in [an] opinion granting the writ the reasoning
which led it to conclude ... that the state finding was `not fairly
supported by the record.'" Id. at 551.
Finding in several respects that the state findings were not
supported by the record, the district court held, inter alia, that
Self was illegally arrested; and that his June 9 and 12 confessions
were involuntary and obtained in violation of the Fifth and Sixth
Amendments, in part because he did not waive his rights. Although
"the ultimate question whether, under the totality of the
circumstances, the challenged confession was obtained in a manner
compatible with the requirements of the Constitution is a matter
for independent federal determination", Miller v. Fenton, 474 U.S.
104, 112 (1985), we accord "great weight to the considered
conclusions of a coequal state judiciary". Hawkins v. Lynaugh, 844
F.2d 1132, 1137 (5th Cir.), cert. denied, 488 U.S. 900 (1988)
(footnotes omitted; citing Miller, 474 U.S. at 112).14 Whether a
defendant waived his constitutional rights is an issue of federal
law, and not a question of fact. Brewer v. Williams, 430 U.S. 387,
397 n.4 (1977). Nevertheless, while "the ultimate issue of
14 The Supreme Court was recently asked to reconsider its statement in Miller v. Fenton that mixed constitutional questions are "subject to plenary federal review" in habeas proceedings. Wright v. West, __ U.S. __, 112 S. Ct. 2482, 2491 (1992) (quoting Miller, 474 U.S. at 112). The Court requested additional briefing on the issue, id. at 2486, but ultimately concluded that it need not decide it, because, "[w]hatever the appropriate standard of review, ... there was more than enough evidence to support West's conviction." Id. at 2492.
- 11 - `voluntariness' is a legal question requiring independent federal
determination", "subsidiary factual questions, such as ... whether
in fact the police engaged in the intimidation tactics alleged by
the defendant are entitled to the § 2254(d) presumption." Miller
v. Fenton, 474 U.S. at 110, 112 (citations omitted); see also
Lavernia v. Lynaugh, 845 F.2d 493, 500 (5th Cir. 1988) (underlying
determinations of historical fact that must be made in order to
answer a mixed question of law and fact are properly accorded a
presumption of correctness). Other subsidiary factual questions
entitled to the presumption of correctness include "the length and
circumstances of the interrogation, the defendant's prior
experience with the legal process, and familiarity with the Miranda
warnings, [because they] often require the resolution of
conflicting testimony of police and defendant". Id. at 117.
2. Fifth Amendment Privilege Against Self-Incrimination
The Fifth Amendment provides that no person "shall be
compelled in any criminal case to be a witness against himself".
U.S. Const. amend. V. Both before and after holding that the Fifth
Amendment privilege against self-incrimination applies to state
action, Malloy v. Hogan, 378 U.S. 1, 6 (1964), and in the context
of custodial interrogations, Miranda v. Arizona, 384 U.S. 436, 478
(1966), the Supreme Court has applied the Due Process Clause of the
Fourteenth Amendment to prohibit states from securing criminal
convictions through the use of involuntary confessions resulting
from coercive police conduct. See, e.g., Miller v. Fenton, 474
- 12 - U.S. at 109; Brown v. Mississippi, 297 U.S. 278 (1936). The test
for determining voluntariness is well-established:
Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). And
pursuant to Jackson v. Denno, 378 U.S. 368 (1964), a defendant who
challenges the voluntariness of a confession sought to be used
against him at trial has a due process right to "a fair hearing in
which both the underlying factual issues and the voluntariness of
his confession are actually and reliably determined". Id. at 380.
At such a hearing, "the prosecution must prove at least by a
preponderance of the evidence that the confession was voluntary".
Lego v. Twomey, 404 U.S. 477, 489 (1972). Here, after conducting
a Jackson v. Denno hearing, the state court concluded that the June
9 and 12 confessions were voluntary and admissible.
In addition to the due process prohibition against the use of
coerced confessions, the now-familiar procedural safeguards
established in Miranda also protect an accused's Fifth Amendment
privilege against self-incrimination during custodial
interrogation. See Michigan v. Tucker, 417 U.S. 433, 444 (1974).
Prior to custodial interrogation, the subject must be informed
that: he has the right to remain silent; anything said can and
will be used against him in court; he has the right to consult with
counsel prior to questioning, and to have counsel present at the
- 13 - interrogation; and if he cannot afford an attorney, one will be
appointed. Miranda, 384 U.S. at 468-70, 479. And, "[i]f the
individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation
must cease". Id. at 473-74. Likewise, "[i]f the individual states
that he wants an attorney, the interrogation must cease until an
attorney is present". Id. at 474. "The sole concern of the Fifth
Amendment [privilege], on which Miranda was based, is governmental
coercion." Colorado v. Connelly, 479 U.S. 157, 170 (1986). The
"voluntariness" determination is designed to determine the presence
of such coercion. Id. at 168. Nevertheless, a Miranda violation
"does not mean that the statements received have actually been
coerced, but only that the courts will presume the privilege
against compulsory self-incrimination has not been intelligently
exercised." Oregon v. Elstad, 470 U.S. 298, 310 (1985).
This court has held that "there is nothing inherently wrong
with efforts to create a favorable climate for confession. Neither
`mere emotionalism and confusion,' nor mere `trickery' will alone
necessarily invalidate a confession". Hawkins v. Lynaugh, 844 F.2d
at 1140 (footnotes and citations omitted). But, "[i]f the
interrogation continues without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived
his privilege against self-incrimination and his right to ...
counsel". Miranda, 384 U.S. at 475. As the Supreme Court
- 14 - explained in Moran v. Burbine, 475 U.S. 412, 421 (1986), the waiver
inquiry has "two distinct dimensions":
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Id. at 422. As noted, the state bears the burden of proving by a
preponderance of the evidence that a defendant has waived the
protections established by Miranda. Colorado v. Connelly, 479 U.S.
at 168-69.
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.
Miranda, 384 U.S. at 475.
3. Sixth Amendment Right to Counsel and Its Waiver
The Fifth Amendment right to counsel during custodial
interrogation is distinct from that under the Sixth Amendment,
which attaches at the commencement of formal judicial proceedings
against an accused and applies regardless of whether the accused is
in custody. See Brewer v. Williams, 430 U.S. at 398 ("[T]he right
to counsel granted by the Sixth and Fourteenth Amendments means at
least that a person is entitled to the help of a lawyer at or after
the time that judicial proceedings have been initiated against him
- 15 - -- `whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.'"). In Massiah v. United
States, 377 U.S. 201 (1964), the Supreme Court held that the Sixth
Amendment is violated when a defendant's "own incriminating words,
which federal agents had deliberately elicited from him after he
had been indicted and in the absence of his counsel", were used
against him at trial. Id. at 206. It is undisputed that Self's
Sixth Amendment right to counsel attached well in advance of his
June 12 confession.
To establish a valid waiver of this right, the state must
prove "an intentional relinquishment or abandonment of a known
right or privilege". Johnson v. Zerbst, 304 U.S. 458, 464 (1938);
Brewer v. Williams, 430 U.S. at 404. The waiver inquiry is
dependent "upon the particular facts and circumstances surrounding
that case, including the background, experience, and conduct of the
accused". Johnson v. Zerbst, 304 U.S. at 464. Moreover, "courts
indulge in every reasonable presumption against waiver". Brewer v.
Williams, 430 U.S. at 404. "[T]he critical inquiry is whether the
prosecution has sustained its heavy burden of establishing that
[Self] was fully informed of and understood his rights and whether,
having once expressed his decision to exercise them, he later
changed his mind and knowingly and understandingly declined to
exercise them." United States v. Cavallino, 498 F.2d 1200, 1202
(5th Cir. 1974). "Waiver by a defendant of his constitutional
right to consult with or to have an attorney present does not
require an express statement or disavowal. Waiver may be inferred
- 16 - from the language, acts, conduct and demeanor of a defendant." Id.
at 1204.
In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court
established a "bright-line" rule: "[A]n 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." Id. at 484. The Edwards rule was developed for the
Fifth Amendment; but, in Michigan v. Jackson, 475 U.S. 625 (1986),
it was made applicable to the Sixth as well. "Edwards established
a new per se rule and to that extent overruled Johnson v. Zerbst."
Solem v. Stumes, 465 U.S. 638, 652 (1984) (Powell, J., concurring).
Accordingly, the rule does not apply retroactively and is,
therefore, unavailable to Self. Solem v. Stumes, 465 U.S. at 650.
Nevertheless, Self contends that, prior to Edwards, this
circuit held that once the right to counsel had been invoked,
questioning could not resume unless the suspect initiated the
contact. He relies on United States v. Priest, 409 F.2d 491 (5th
Cir. 1969), in which the court stated: "Where there is a request
for an attorney prior to any questioning, ... a finding of knowing
and intelligent waiver of the right to an attorney is impossible".
409 F.2d at 493.
Subsequent cases interpreting Priest make it clear, however,
that the language relied on by Self is not as absolute as it seems.
In 1979, our en banc court resolved the apparent variance: "We
- 17 - construe Priest to bar inquiry as to waiver when, prior to any
questioning, the suspect makes an unequivocal request for an
attorney's presence, as was done in Priest, and when the request is
disregarded and the questioning proceeds." Nash v. Estelle, 597
F.2d 513, 517 (5th Cir.) (en banc), cert. denied, 444 U.S. 981
(1979). Shortly thereafter, this was repeated in Blasingame v.
Estelle, 604 F.2d 893, 895 (5th Cir. 1979). Likewise, shortly
before the 1979 en banc opinion, this court, in Government of Canal
Zone v. Gomez, 566 F.2d 1289 (5th Cir. 1978), cited Priest for the
proposition that, when a suspect requests counsel during
questioning, but the request is ignored and interrogation
continues, "a knowing and intelligent waiver is very difficult, if
not impossible, to establish." Id. at 1291.
However, for cases such as this, to which Edwards is not
applicable, when interrogation ceases after the accused requests
counsel and then, after a period of time, resumes, "the question of
whether the accused knowingly and intelligently waived his rights
is a question that can be answered only on the facts of each case."
Gomez, 566 F.2d at 1291.
Waiver has been found and the confession admitted when the interrogation was continued at the behest of the accused, and where intervening events between the denial of counsel and the later confession helped dissipate the taint of the earlier violation. Central to the outcome of these cases was the belief that the suspect should not have been prevented from changing his mind once he had stated that he desired an attorney.
Id. (emphasis added; citations omitted).
- 18 - Other pre-Edwards cases decided after Priest make it clear
that this circuit recognized that waiver is indeed possible after
an accused has requested counsel. See, e.g., Biddy v. Diamond, 516
F.2d 118, 122 (5th Cir. 1975), cert. denied, 425 U.S. 950 (1976)
("when a person knows her rights, and has even exercised the right
to counsel, talking with counsel, later voluntary admissions can
constitute a waiver of the rights to counsel and to remain
silent"); United States v. Cavallino, 498 F.2d 1202, quoted above;
United States v. Hodge, 487 F.2d 945, 947 (5th Cir. 1973) ("An
arrestee can change his mind after requesting an attorney.");
United States v. Green, 433 F.2d 946, 948 (5th Cir. 1970) ("The
right to have counsel present can be waived."). The district court
applied the correct, pre-Edwards, rule of law in determining waiver
vel non.
Accordingly, in making our independent federal determination
whether Self's confession was voluntary, the state findings are
critical; and our focus is on whether the district court erred in
holding that they are not fairly supported by the record. Because
the district court differed with so many state findings, we must
present a detailed analysis of the voluminous record, including the
state habeas transcript of approximately 1,200 pages.
B. Voluntariness of June 9 and 12 Confessions
1. June 9 Confession
The district court held that Self's June 9 confession (not
admitted into evidence) was involuntary, because it was the result
- 19 - of (1) an illegal arrest; and (2) coercion, threats and physical
force.15
a. Arrest
Self never raised the legality of his arrest as an issue in
any of the state court proceedings, before and after his
conviction, and did not seek federal habeas relief on that ground.
Nevertheless, the district court held that he was unlawfully
arrested, and that his confessions were the fruits of that
illegality. (Self neither responds to the state's argument that
the district erred in so holding, nor attempts to defend that
holding.)
Because Self did not challenge the legality of his arrest, the
state had no reason to prove otherwise, and the Texas state courts
had no opportunity to consider the issue. See Stone v. Powell, 428
U.S. 465, 494 (1976) (a Fourth Amendment violation does not support
habeas relief where state has provided an opportunity for full and
fair litigation of the claim); see also § 2254(b), (c) (requiring
exhaustion of remedies in state court before seeking federal habeas
relief). Needless to say, the legality of Self's arrest was not
properly before the district court and cannot form the basis for
15 In Arizona v. Fulminante, ___ U.S. ___, 111 S. Ct. 1246, 1251 (1991), the Court held that the admission of a coerced confession is subject to harmless-error analysis. The state concedes that if the June 9 confession was coerced and the June 12 confession tainted by that coercion, the admission of the latter cannot constitute harmless error. Because the state finding that the June 9 confession was not coerced is fairly supported by the record, it is unnecessary to engage in taint and harmless-error analysis. In any event, the state habeas court found and concluded that the June 12 confession was not tainted by that of June 9. The record also fairly supports that finding.
- 20 - relief. Moreover, the district court improperly relied on its sua
sponte determination that Self's arrest was unlawful to support its
conclusion that Self did not validly waive his Fifth and Sixth
Amendment rights.
b. Coercion
The district court acknowledged that the state court had twice
found that no force or threats were used against Self to obtain his
June 9 confession. Nevertheless, it found that the confession was
so obtained and not freely given, despite Miranda warnings having
been given. This finding is influenced by its earlier,
unwarranted, sua sponte illegal arrest ruling, as well as by
credibility choices contrary to those made by the state trial
judge, who had an opportunity to observe the witnesses' demeanor,
and whose province included weighing conflicting testimony.
(1) Physical Force and Threats
The printed portion of the June 9 statement provides that
Officer Morgan advised Self of his Miranda rights prior to
questioning, and further recites:
I want to answer law enforcement officers' questions and make this statement without the presence and advise [sic] of a lawyer, and I now freely give up and waive my rights to a lawyer and to remain silent and do make the following voluntary statement.
Self did not testify at the habeas hearing. The following is
a summary of his suppression hearing testimony, regarding his June
9 confession. Chief Morris wanted to frame him for the murders,
because he had allegedly called Morris vulgar names in a recorded
conversation with former chief Norman; and he was afraid of Morris,
- 21 - because Morris had previously threatened "to do everything he could
to see me put in the penitentiary". When he asked for a lawyer,
Morris replied, "You had your chance last week", referring to
Self's waiver of a lawyer when questioned a week earlier about
possession of marijuana. He repeatedly told the police that he had
not murdered the girls, but Morris placed officer Morgan's night
stick on the desk and threatened to beat him if he did not say what
Morris wanted to hear. Self was handcuffed and sitting in a chair,
and Morris took the stick with both hands and rammed it into his
abdomen; when he doubled over, Morris hit him three or four times
along the back and shoulders over a five to ten-minute period.
Officers Morgan and Mitchell, who were present during the beating,
walked to nearby windows and said to one another, "Let's look at
the stray dogs wandering the street". Although he first testified
that Morgan and Mitchell were in the room when Morris was
questioning him, Self later testified that he was left alone with
Morris, and that Morris took five bullets out of the chamber and
spun it, held the gun near Self's head, and told him that he would
kill him and say that he ran. Assistant chief Deal was not present
during the beating. Deal, who knew about Self's prior psychiatric
treatment, told him that if he would sign the confession, Deal
would see that he got psychiatric help. He made up a story and
signed the confession because he was frightened, not allowed to
call a lawyer, had been beaten, and "just couldn't take any more".
While at a hospital that afternoon for a physical examination, he
observed marks on his stomach where Morris struck him; but he did
- 22 - not tell the examining doctor that he was hurt or that he had been
threatened and beaten, because Morris had threatened him with
another beating if he did. He admitted that the bruises he
allegedly received as a result of the beating cannot be seen in
photographs taken that same afternoon, but explained that he does
not bruise easily.16
Immediately thereafter, Self gave similar testimony to the
jury, but there were several inconsistencies. Although he had
testified at the suppression hearing that Mitchell and Morgan were
present while Morris was beating him, he testified to the jury that
Mitchell did not arrive at the police station until the afternoon
of June 9, after the alleged beating, and that the physical abuse
took place while he was alone with Morris. Admitting that this
contradicted his earlier testimony, he testified that he did not
know which version was correct.
At the suppression hearing, Robert Lee Fulkerson, Self's
roommate when Self was arrested, testified that six to eight weeks
prior to Self's arrest, Morris had told Fulkerson that "he was
going to bust [Self] one of these days on anything that he could";
that Morris had previously displayed violence toward Fulkerson when
Morris tried to accuse him of stealing; and that he knew of threats
Morris had made to others.
During the habeas hearing, Dewey Meadows, one of Self's trial
attorneys, gave the following testimony. Prior to being appointed
16 Morris testified that the examination and photographs were a precaution against a brutality charge.
- 23 - chief, Morris had been transferred to Webster by the Department of
Public Safety for disciplinary reasons involving mishandling of
prisoners. When he met with Self shortly after noon on June 9,
Self told him that the confession had been coerced, that he gave it
because he was afraid. Self "indicated" that he was afraid of
Morris, and that Morris was responsible for the coercion. Self
said that he had been hit in the stomach with a billy club, and
raised his shirt and asked Meadows to view his navel. It was pink,
but not bruised; Meadows did not know whether this was from a blow
or Self wearing a tight belt. But, Meadows' testimony at the
suppression hearing six years earlier included no references to
Self's claims of threats or beatings, nor did he testify about
having viewed Self's navel on June 9.
Self's mother testified at the punishment phase of the trial
and the state habeas hearing. At trial, she did not testify about
any coercion, but gave the following testimony during the habeas
hearing: Self is easily intimidated, cannot cope with pressure,
and will say or do just about anything to get others to stop
pressuring him; she was away on June 9 and 10, and when she saw
Self on June 13, he looked like he belonged in a mental
institution; Self started crying, raised his shirt, and said that
Morris had punched him in the stomach and hit him in the neck with
a club, and had pulled a gun on him and forced him to confess; and
Self wanted her to thank Deal for being so nice to him -- Deal had
promised to get psychiatric help for him if he would confess a
second time.
- 24 - Former Webster policeman David Coburn testified at the habeas
hearing, but not at trial. According to Coburn, Self could be
easily intimidated by authority; Morris was "a bully"; Self was
afraid of Morris because Morris had threatened to "get" him; Morris
did not like Self, because Self was having "some sort of a
relationship" with Morris' wife; Morris bragged about abusing
prisoners, and he had previously observed such abuse; Morris'
activities with respect to handling prisoners had been the subject
of several FBI investigations; and Morris was considered to be a
violent person, whose demeanor around prisoners was "mean". Coburn
concluded that it was likely that Self was afraid of being beaten
or killed by Morris during interrogation.
On the other hand, during the habeas hearing, former Webster
councilman Shapiro testified that Coburn was a heavy drinker and
known for brutality toward prisoners, and that Morris was appointed
chief in an attempt to improve the image of the Webster police,
which had acquired a reputation for brutality under Coburn and
Norman. The state habeas court found that Coburn's reputation for
being a peaceable and law-abiding citizen was bad.
Jerry Mitchell, a United States Customs Service inspector and
former Webster policeman, who did not testify at trial, offered the
following testimony at the habeas hearing. He was present during
portions of the June 9 interrogation; when he first saw Self, Self
seemed relaxed and at ease, was more concerned with punishment than
with guilt or innocence, and repeatedly claimed innocence; when he
returned to the interrogation room 30-45 minutes later, Morris and
- 25 - Self were alone; Morris had Morgan's 14 to 18-inch night stick in
his hand, and Self seemed highly upset and nervous; Morris was
slapping the stick repeatedly against the palm of his left hand and
was being very forceful and threatening, and using profanity; and
Morris indicated that Self could not leave the police station until
he confessed. Mitchell was in the room for 15 to 20 minutes; and,
although he did not see Morris hit, or point his revolver at, Self,
he thought such events had probably (later he testified may have)
occurred, because of Self's changed and shaken appearance, and
because Morris had previously used a "Russian roulette"
interrogation technique on another prisoner. Morris had a "mean
streak" and Self was "very frightened" of Morris. Mitchell
concluded that Self's confession was the product of psychological
coercion and Self's fear of Morris, and that Self possibly
confessed just to get away from Morris. Conversely, at the habeas
hearing, Shapiro, who was a friend of Mitchell's in 1972 and at the
time of the habeas hearing, testified that Mitchell had never
mentioned that he had observed anything which led him to believe
that Self's confession was involuntary.
Other witnesses who had not testified at trial testified at
the habeas hearing. Webster fire chief Gaskins testified that he
saw Self on the afternoon of June 9; Self told him that the police
made him confess and he appeared frightened and was crying. Former
Webster police dispatcher Bruce Wilburn testified that he had
observed Morris abusing and mistreating other prisoners before
Morris became a Webster police officer. Thomas Roberson, Self's
- 26 - other trial attorney, testified that Self stated that Morris was
"after him"; that Self was "quite scared" of Morris; and that Self
told him about Morris removing bullets and playing "Russian
roulette". Charles Miller, Self's employer at the time of his
arrest, testified that he had witnessed Morris "brutalizing" a
prisoner, and that Self was afraid of Morris.
Assistant chief Deal and chief Morris testified for the state
at the suppression hearing and at trial. At the time of the habeas
hearing, both were incarcerated; only Morris testified then (by
deposition).17 At the suppression hearing, Deal gave the following
testimony. At approximately 5:00 a.m. on June 9, he and officer
Morgan18 went to where Self worked, read him his Miranda rights,
questioned him about the murders, and left after about 20-25
minutes without placing him under arrest. Deal and Morgan next
went to see Self at about 7:00 a.m.; he agreed to follow them to
the police station; and they arrived there shortly after 7:00 a.m.
Morgan administered the Miranda warnings to Self; Self did not
request an attorney. Self was not taken before a magistrate prior
to being interrogated, because Deal was unable to contact a judge;
all were out of town at a convention. The interrogation lasted a
little over three hours and was conducted by Deal, Morris,
Mitchell, and Morgan. At least two officers were present while
17 Morris, Deal, and another Webster policeman who did not testify in any of the proceedings were convicted for bank robbery. 18 At the time of trial, Morgan was no longer employed by the Webster Police Department. He did not testify at the trial or habeas hearing.
- 27 - Self was being interrogated. Deal left around 8:00 or 8:30 a.m.
and was absent about 30 minutes; other than that, he was present
during the interrogation. Self appeared nervous during the
questioning, and he became emotionally distraught and cried at
times. He was not handcuffed and would have been permitted to go
to the restroom. After the confession was typed, it was shown to
Self, and he appeared to read it; Morgan also read the statement to
him. At 10:10 a.m., Self signed the confession, in which he
admitted murdering Shaw and Johnson. Self "was not forced, coerced
or in any way threatened or intimidated" into signing. Self was
then taken to Houston, and at 11:59 a.m. was advised about his
rights by Judge Duggan; Self requested that counsel be appointed
to represent him, and Judge Duggan telephoned Meadows at 12:04
p.m.; Meadows arrived at the courthouse within minutes and
conversed privately with Self; and, after talking to Meadows, Self
said that he did not commit the murders. He and Morgan left
Houston that afternoon with Self and went to nearby LaPorte, where
charges were filed against him and full-length, front and back,
black-and-white nude photographs taken. Self then directed them to
the location where the remains had been found. Self was then
returned to the Webster police department. About 15 minutes later,
he was taken to Clear Lake Hospital for an examination. On
Saturday, June 10, Self was transferred to the Harris County Jail.
Deal gave similar testimony at trial.
At the suppression hearing, Morris denied threatening
Fulkerson, and denied telling him that he would put Self in the
- 28 - penitentiary. He testified that Fulkerson was upset with him
because he would not hire Fulkerson as a police officer (Fulkerson
had been convicted of theft in 1971 and was on probation) and
because he had been unable to assist Fulkerson in collecting a
reward for his assistance in providing information that led to
Self's arrest. He denied threatening to put Self in the
penitentiary and testified that he did not threaten or physically
abuse Self with a pistol or night stick; that he was present when
Self was examined at the hospital and did not see any marks around
his navel; and that he did not threaten to beat Self if Self
alerted the doctor. He did not recall being alone with Self on
June 9. Morris testified similarly to the jury and, in addition,
testified that he did not pick up Morgan's nightstick.
In his deposition taken in 1979 for the habeas hearing, Morris
testified that, prior to the arrest for murder, he tried to scare
Self after Self had stolen gas from the fire chief's car; he used
the "good guy, bad guy" interrogation technique with Self on June
9, in which he was the "bad guy"; the technique did not involve any
physical violence or brutality, and he did not make any threats or
use any physical violence during the interrogation19; Self was
frightened of him, but had no reason to be physically afraid; Self
was nervous and intimidated, but no more so than any other subject
19 Bobby Harold Musser, an expert in polygraph examination, testified at the habeas hearing regarding the "good guy-bad guy" interrogation technique used on June 9. He stated that it utilizes psychological manipulation and poses dangers of abuse, but conceded that it was an accepted technique. Musser opined that it was likely that Self's June 9 confession was a result of Morris effectively overbearing Self's will to resist.
- 29 - in an interrogation; Self did not fear him enough to confess to a
murder that he did not commit; when Self was confessing his guilt,
Self enjoyed telling about it; and his memory of events as
reflected in his trial testimony was more accurate than at the time
of his deposition, almost six and one-half years later.
Former Webster councilman and Harris County deputy sheriff
Shapiro, whose testimony is discussed in part above, testified at
the habeas hearing as follows. He saw Self and Morris conversing
in Morris' office on the afternoon of June 9, and Self did not
appear nervous or frightened. Prior to taking Self to the hospital
to be examined, Shapiro asked him if he was hurt; Self replied that
he was not. After the examination,20 the doctor told Shapiro that
Self was in good shape21; and Shapiro saw no physical signs
indicating that Self's confession was involuntary. Morris was
appointed on his recommendation as police chief for the purpose
(noted above) of improving the image of the Webster police.
Webster was a "hot bed of politics" in 1972, and, although Rhonda
Johnson's grandfather, who ultimately was elected mayor, was
politically influential, the police department's failure to solve
the murders had nothing to do with the appointment of a new chief.
Although Shapiro was formerly friendly with Morris, his opinion of
20 Shapiro's testimony about the examination is inconsistent with Morris'. Morris testified that he was present and observed the examination, but Shapiro testified that Morris was not there, and that he did not know whether anyone else was inside the examination curtain with Self and the doctor. 21 Concerning the information provided by the doctor, see note 22, infra.
- 30 - Morris had changed as of the habeas hearing, based on Morris'
conviction and Morris having made advances toward Shapiro's wife.
Nevertheless, Shapiro maintained his belief that Self's confession
was voluntary.
The testimony of other witnesses supports the state finding
that Self was not coerced. Dr. Davis, who worked in the hospital
emergency room on June 9, testified at the suppression hearing
that, although he did not conduct the examination, he saw Self that
afternoon and did not observe him making any complaints regarding
physical or other problems.22 Harris County deputy sheriff Cleboski
testified at the habeas proceeding that he visited with Self on the
afternoon of June 9. He asked Self if he had been abused,
threatened, or mistreated, or if any coercion or trickery had been
used to obtain his statement; Self answered with "a very clear
negative".23
At the conclusion of the suppression hearing, in written
findings of fact, the state court found that Self had been given
Miranda warnings prior to making the June 9 confession and
understood his rights; he "had not been mistreated, physically
abused, threatened in any way or manner, or promised anything of
any kind or nature ... to induce ... [the June 9] statement"; and
he "gave no appearance at any time prior to the making of the [June
9] statement ... of exhaustion, of hunger, of thirst and made no
22 Dr. Davis was chairman of the emergency room committee and signed the examination note; he testified that Self was examined by an unknown doctor, probably a medical school resident. 23 Cleboski did not testify at trial.
- 31 - request for food, drink or rest" and "was permitted to go to the
restroom whenever he desired to do so". It stated that its
findings were "based not only upon the testimony of the witnesses,
but also upon this Court's personal observation of the demeanor and
manner in which each witness testified." It concluded:
Considering all of the facts and findings and chain of events concerning this case and the written statements given herein, this Court is convinced beyond a reasonable doubt that the written statements were each freely and voluntarily made by ... Self, after he was warned of his constitutional and statutory and legal rights, which rights he fully understood and knowingly and intelligently waived.
At the conclusion of the habeas hearing, the same judge made
the following findings with respect to brutality allegations:
No physical or psychological coercion or intimidation was perpetrated upon [Self] by ... Morris .... Specifically, [Self] was not jabbed in the stomach with a nightstick nor struck across the shoulders with a nightstick, by Chief Morris. Chief of Police Morris had not practiced similar acts of physical abuse on other prisoners as chief of police in Webster or as a Department of Public Safety officer.
... Chief Morris did not empty all the bullets save one from his service revolver and place the weapon to [Self]'s head. Similar methods of physical abuse were not practiced by Chief Morris upon other individuals in his custody. No conduct of Chief Morris rendered [Self]'s written confession of June 9, 1972, involuntary under the Constitutions of the United States or Texas.
* * *
... There is no evidence of perjured testimony by former Police Chief Don Morris and former Assistant Police Chief Tommy Deal, both of whom are now in federal penitentiaries for bank robbery. There has been no connection shown between the instant offense by [Self] and the
- 32 - offenses of which these former law enforcement officers were convicted.
... At his deposition taken in this proceeding ..., former Police Chief Don Morris testified under oath that he knows of nothing to which he testified at [Self]'s trial that was untrue. There is no testimony at this proceeding to outweigh that of former Police Chief Don Morris, at trial, or that of former Assistant Police Chief Tommy Deal, at trial. Particularly, the Court finds: Chief Morris did not testify falsely when he stated that he did not pick up a nightstick or hold it in his hand while questioning [Self] the morning of his arrest and shortly before he gave his first confession. Chief Morris did not falsely testify that he had not abused or brutalized other prisoners in the past. Chief Morris did not beat [Self] at the Webster Police Station the morning of his arrest. [Self] did not make his first or second statement as a result of physical or mental coercion of any kind.
(Emphasis added.)
Despite these findings, the district court credited Self's
testimony that Morris struck and threatened him during the June 9
interrogation, as well as testimony from other witnesses that
Morris had mistreated other prisoners. It stated that the state
court failed to accord sufficient weight to the character traits of
Morris and Deal, because of their convictions for bank robbery,24
24 The very scant evidence in the record about the convictions reflects that Morris and Deal may have been robbing banks in mid- 1972, when Self was arrested, and that Morris was arrested in 1975 for such activity. There is no comparable evidence about when Deal was arrested, but it appears that he was arrested before Morris. (In addition, Mitchell testified at the habeas hearing that, in 1974, Deal told him that he was using drugs; but Mitchell did not know if Deal was doing so in 1972 or 1973.)
The magistrate judge's understandable disdain for such illegal activity, especially by law officers, appears to have improperly colored his application of the § 2254 standard of review. For example, he refers to Morris and Deal as "officer-cum-bank robber" and states that Shapiro was "instrumental in hiring the bank
- 33 - and also faulted it for failing to give any weight to the testimony
of Coburn, Mitchell, Gaskins, Wilburn, and Miller regarding Morris'
interrogation techniques.
Deference to a state court's findings is particularly
important "where a federal court makes its determination based on
the identical record that was considered by the state appellate
court". Sumner v. Mata, 449 U.S. at 547. As stated in Marshall v.
Lonberger, "§ 2254[d] gives federal habeas courts no license to
redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them." 459 U.S. at
434; see also Louis v. Blackburn, 630 F.2d 1105, 1110 (5th Cir.
1980) ("In order to adequately determine the credibility of a
witness ..., the fact finder must observe the witness.").
Implicit in the state findings (as well as the jury's verdict)
is a determination that Self was not credible. "When ... a trial
court fails to render express findings on credibility but makes a
ruling that depends upon an implicit determination that credits one
witness's testimony as being truthful, or implicitly discredits
another's, such determinations are entitled to the same presumption
of correctness that they would have been accorded had they been
made explicitly." Lavernia v. Lynaugh, 845 F.2d at 500. The state
court did take note of Morris' and Deal's convictions, but
nevertheless found that there was "no testimony" at the habeas
proceeding sufficient to outweigh their trial testimony. The
robbers". Simply put, the credibility choices based on the state record were for the state, not federal, judge, as discussed infra.
- 34 - district court's disagreement with the credibility choices made by
the state court and with the weight that court gave to the
testimony of witnesses whose demeanor was observed by it, but not
the district court, is an insufficient basis for disregarding the
state findings and making contrary ones. The state findings are
fairly supported by the record.
(2) Falsities and Inconsistencies in Confessions
The district court also referred to three perceived falsities
or inconsistencies between the two written confessions as evidence
of coercion; but these findings are either not supported by the
record, and therefore, clearly erroneous, or do not support an
inference of coercion.
First, in describing where the bodies were hidden, the June 9
confession speaks of a "culvert"; the June 12, a "bayou". But, a
photograph in evidence shows that the words "bayou" and "culvert"
are equally descriptive of that location. And, both were used by
witnesses to describe the area.
Second, Self's statement in the June 12 confession that he
discarded the girls' clothing along the sides of Red Bluff Road is
seemingly inconsistent with the fact that some clothing similar in
appearance to that worn by them at the time they were last seen
alive was instead found in the area surrounding the ditch where the
bodies were hidden. Moreover, officers searched the sides of the
road and did not find the clothing. However, this inconsistency
does not evince coercion. To the contrary, it is reasonable to
assume that Deal, whose interrogation led to the June 12
- 35 - confession, and who participated in the June 9 interrogation, was
familiar with the investigation that had been conducted, and knew
where the clothing had been found approximately four months
earlier. If Self had been coerced into saying whatever would
please law enforcement officials, it seems most unlikely that they
would have allowed him to sign a confession that was inconsistent
with the physical evidence. And, it is possible that Self might
have intended to say "Old Choate Road" rather than "Red Bluff
Road".25 In any event, this inconsistency is a very shaky
foundation upon which to find coercion.
And third, Self stated in the June 9 confession that he met
Rhonda Johnson at a theater and then went to Sharon Shaw's house;
in the June 12 confession, that he picked up Johnson along a road,
and they picked up Sharon Shaw at a yacht club. The district court
found that the described events could not have happened, because
the record contains nothing to indicate that the girls split up on
August 4 and reunited in Self's car. (In another seeming
inconsistency, Self stated in his June 23 oral statement that he
picked Rhonda Johnson up on the road, near a steak house. However,
a private investigator for Self's habeas counsel testified that the
theater (June 9 confession) and steak house (June 23 statement) are
in the same vicinity.) The record is silent both on when the girls
returned to Webster from their day trip to Galveston and whether
25 Red Bluff Road is the first road to the southwest of the ditch. It intersects with a road running just north of where the bodies were hidden, which Self also stated he used. This road appears to be named "Old Choate Road".
- 36 - they separated before being reunited; but, it contains nothing to
indicate that this did not happen. Therefore, there is no evidence
to contradict Self's statements. (And, concerning where Self
picked up Sharon Shaw, although the June 12 confession and June 23
statement appear to be inconsistent with the June 9 confession,
this, again, does not show coercion.)
Moreover, the district court's implicit finding that Self
fabricated the June 9 confession to avoid further physical abuse is
inconsistent with other evidence, such as the fact that Self on two
separate occasions directed two different law officers to the exact
location where the remains had been found. After viewing
photocopies of the photographs introduced in evidence, it seems
extremely unlikely that Self would have been able to do so merely
by chance; the area where the remains were found was described as
"very desolate". (Nevertheless, when questioned about how he was
able to pinpoint the exact location, Self testified that he "was
just guessing".) The state record refutes any inference that his
confessions were false.
In sum, concerning coercion, several parts of the state
record, especially Mitchell's claim about Morris' use of the night
stick, are troubling; but, based on our review of the record, we
conclude that it contains the requisite § 2254(d) fair support for
the state findings. Accordingly, the district court erred in
concluding that Self's June 9 confession was coerced.
- 37 - 2. June 12 Confession
The district court held that the June 12 confession was
obtained in violation of Self's Sixth Amendment right to counsel,
and that Self did not validly waive that right for the June 12
interrogation.26 These conclusions are based on its findings that:
(1) the June 12 confession was not initiated by Self, as the state
court found, but instead, by the police, due to the unethical
interference of an unnamed district attorney; (2) Self did not have
the mental capacity to intelligently waive his rights; (3) the
coerced June 9 confession was used to obtain the June 12 waiver,
and that waiver was tainted by Self's fear of continuing brutality;
and (4) the police ignored Meadows' instructions that Self not be
interrogated outside his presence, and Morris deliberately misled
Meadows in an attempt to prevent him from speaking to Self shortly
before he signed the June 12 confession.27
a. Initiation of Contact with Officers
As discussed, Edwards' per se rule on initiation is
inapplicable; but, in any event, whether the accused initiates
26 The district court also held that Self's oral admissions to Deputy Beamer during the June 23 trip to the location where Self said he had hidden the bodies were inadmissible, because they were obtained in violation of his Sixth Amendment right to counsel. However, Self's counsel did not object to the admission in evidence of those statements. Moreover, Self has not alleged that he is entitled to habeas relief on the basis of the admission of his June 23 statements, nor does he attempt here to defend the district court's ruling. We note also that Beamer testified that Self did not request his attorney's presence on June 23, and that Self had been warned of his rights prior to the trip. 27 The district court's conclusion that Self did not validly waive his rights is also fatally infected by its improper ruling that Self was illegally arrested.
- 38 - contact with the police after the right to counsel has attached is
a factor to be considered in determining whether the accused has
waived that right. Felder v. McCotter, 765 F.2d 1245, 1249-50 (5th
Cir. 1985), cert. denied, 475 U.S. 1111 (1986).
Concerning initiation, the state habeas court found: "On June
12, 1972, [Self] made the decision to take the polygraph test. It
showed that some of the facts in his statement of June 9, 1972,
were incorrect. He then initiated the making of another statement,
correcting these inaccuracies and adding more details." The
district court held that this finding "is not supported by the
record". We disagree.
As noted, Meadows testified at the suppression hearing that,
when he met with Self immediately after his appointment on June 9,
he told Self that anything Self said could be used against him, and
advised Self not to make any statements to officials unless he
(Meadows) was present. Meadows further testified:
[S]omething was said about a polygraph test and I told [Self] at the time that I said [sic] it was against my advice that you take it. He says, "But I want to take it because I didn't do it". I said, "If you want to take that okay, but my advice is not to." And he said, "I'm going to go ahead and take it", and I said, "Okay."
On this point, Deal testified at the suppression hearing and
trial as follows. On June 12, beginning at approximately 1:00
p.m., Self took a polygraph examination and was interviewed by
several area law enforcement officials concerning the unsolved
- 39 - murders of other young girls in the area.28 After taking the
examination, Self agreed to give an additional statement, because
he had left out some details in the first. Deal, the only Webster
officer present during the June 12 interrogation, warned Self of
his rights prior to asking any questions; and Self did not state
that he wanted his lawyer present. The questioning began at 4:40
p.m.; Self signed the confession at approximately 6:00 p.m. No
force, coercion, threats, or intimidation were used.
At the suppression hearing and trial, Self testified that,
around 4:30 or 5:00 p.m., Deal asked him if he wanted to change
some errors in the June 9 confession. Self was not sure whether
Deal asked him if he wanted a lawyer, but he testified that he
asked Deal if Deal had talked to his (Self's) attorney. Self did
not remember Deal's response. Although he could not remember
whether Deal warned him of his rights prior to questioning him, he
testified that no one beat or threatened him; and that he "gave it
of [his] own free will and volition". He further testified that he
had "no complaints" about the June 12 statement, but would not have
given it if he had not already given the first one.
The June 12 confession contains the following, indicating that
Self was aware of his right to have his attorney present:
I do not want to consult with a lawyer before I make this statement, and I do not want to remain silent, and I now freely and voluntarily waive my right to a lawyer and to
28 As noted, the polygraph apparently indicated that Self had been untruthful with respect to portions of his June 9 statement.
- 40 - remain silent and make the following voluntary statement ....
In addition, the district court does not comment on the following
language from that confession, which lends further support to the
state finding that Self initiated the interrogation that led to it:
Last Friday, June 9th, 1972, I gave a statement to Officer Tommy Deal, of the Webster Police Dept. Since that statment [sic], I thought of some additional information that I wish to add to my first statement. Therefore I wish to make a new statment [sic] and add the things that I had forgotten in my original staement [sic].
The district court's finding that Self did not initiate the
June 12 contact is greatly influenced by its clearly erroneous
finding that an unnamed district attorney unethically interfered
with Self's exercise of his Sixth Amendment right to counsel, by
directing the police to obtain a second confession after counsel
had been appointed. At the habeas hearing eight years after the
June 12 confession, Harris County Deputy Sheriff Cleboski, who was
present during it, testified that the Webster police had given him
the impression that there was something wrong with the first
confession; that perhaps they had consulted with a prosecutor; and
that he was not directed to take the statement by anyone from the
district attorney's office, but "presume[d]" that if such direction
had been given, it would have been to the Webster police.
(Emphasis added.) Deal testified that he conferred with more
experienced investigators from the Harris County sheriff's
department prior to the June 12 interrogation; he did not mention
- 41 - consulting with anyone from the prosecutor's office. Cleboski's
testimony does not furnish a basis for the district court's finding
of unethical conduct by an unnamed district attorney.29
Next, although the record does not contain any evidence
concerning the actual administration of the polygraph examination
or its results, Meadows' testimony supports the implicit state
finding that it was administered at Self's request. Deal's
testimony, as well as the above-quoted portion of the June 12
confession, fairly support the state finding that, as the logical
sequence to that examination, Self prolonged the contact he had
initiated by making the June 12 confession to add details and
additional information to supplement his June 9 confession.
The district court failed to accord the deference required by
§ 2254 to the state court's finding that Self initiated the June 12
contact with police that resulted in his confession later that day.
29 Based on Cleboski's unsupported "presumption", discussed above, the magistrate judge ruled:
Since [the state] did not dispute Cleboski's uncontradicted assertion, the Court will assume and finds that a state's prosecutor requested the additional written confession from Self. This was, of course, a violation of the then existing disciplinary rules of the State Bar of Texas .... Despite the fact that the Assistant District Attorney requested that the second statement be taken, the Trial Judge found that Self had initiated the taking of the second [June 12] statement. Obviously the Assistant District Attorney reviewing the first [June 9] written confession recognized the apparent falsity of the girls allegedly leaving with Self from Shaw's home.
(Emphasis added.) Again, it appears that the magistrate judge went far beyond the standard of review permitted by § 2254.
- 42 - b. Mental Capacity for Waiver
At the conclusion of the suppression hearing, the state court
made the following findings regarding Self's mental capacity:
[T]he Defendant, Michael Lloyd Self, was twenty- three (23) years of age, was in good health, good physical condition, of sound mind and aware of what he was doing at the time he made and signed each of these statements. He had the ability to read and good command of the English language as demonstrated when testifying during this hearing.
And, at the conclusion of the habeas hearing, it made similar
findings:
[Self] was alert and mentally competent when he made this statement of June 9, 1972.
... In 1972, he was below normal academically, and would have been classified by his schoolteacher mother as "a dull normal," this being above the level where he would have been placed in a special class. At the time of the taking of the statement of June 12, 1972, [Self] displayed mental alertness and understanding. At the time he was given his magistrate's warning by Judge Duggan, he displayed understanding and alertness requesting appointment of counsel. [Self]'s testimony and his demeanor at pretrial motions, at trial and at the punishment hearing, and his demeanor at the instant hearing, were heard and observed by the judge who writes these findings. That testimony and demeanor demonstrated mental alertness and understanding.
... [Self] was mentally competent at the time that he made his statement on June 9, 1972, and at the time he made his statement on June 12, 1972.
The district court's conclusion that Self did not validly
waive his right to counsel is based in part on its findings that
"[t]he testimony showed that [he] was a dull student and slow
learner with minimal brain injury [, and that] he was pliant and
easily intimidated by authority figures". Although those findings
- 43 - are consistent with some of the state's, and are supported by the
record, the district court failed to explain why it chose to
disregard the other state findings regarding Self's ability to
comprehend both the nature of his legal rights and the consequences
of his decision to abandon them on June 9 and 12.
The district court did not hold an evidentiary hearing; its
findings are based solely on the state record. Obviously, the
state trial judge, who had an opportunity to observe Self during
his testimony at the suppression hearing and trial, was in a much
better position than the district court to evaluate Self's mental
capacity to understand the nature of his rights and the
consequences of a decision to waive them. The district court erred
in disregarding state findings that are fairly supported by the
record.
c. Taint from June 9 Confession
The district court's conclusion that Self did not validly
waive his right to counsel at the June 12 interrogation is based,
in part, on its finding that the waiver was obtained as a
consequence of the coerced June 9 confession and Self's fear of
continuing brutality. We have found that the record fairly
supports the state finding that the June 9 confession was not
coerced. Accordingly, it does not affect the validity of Self's
June 12 waiver.
d. Police Interference
Finally, the district court held that Self's June 12 waiver
was invalid because (1) the police ignored Meadows' command that
- 44 - they refrain from questioning Self unless he was present; and (2)
Morris impermissibly interfered with Meadows' attempt to represent
Self on June 12, shortly before Self signed the confession at 6:00
p.m.30
(1) Counsel's Instructions to Police
Although Meadows had informed the police officers who were
present in Judge Duggan's courtroom on June 9 that they were not to
interview Self outside his presence, Meadows testified, as
discussed earlier, that Self, contrary to his advice, stated that
he intended to take a polygraph examination. Deal testified that
Self did not express any desire to have Meadows present during the
June 12 interrogation, and the June 12 statement corroborates this.
Self had no duty to follow Meadows' instructions to the police,
just as he had no duty to heed Meadows' advice that he not submit
to a polygraph examination. Self was free to choose to forego
Meadows' presence at the June 12 interrogation, and he did not need
Meadows' permission to make that choice. A defendant may waive his
right to counsel without notice to counsel. Brewer v. Williams,
430 U.S. at 405-06.
Self asserts that Felder v. McCotter is factually similar.
Felder's counsel consulted with Felder "almost daily" and
"explicitly instructed" police not to question Felder unless his
counsel was present; the police agreed. 765 F.2d at 1246.
30 Without providing supporting facts or law, the magistrate judge stated that "[h]ad Self truly waived assistance from his counsel, Meadows would have been promptly notified by the authorities."
- 45 - Nevertheless, a Houston officer, knowing that Felder was
represented by counsel, initiated an interview with him without his
counsel's presence or consent. This court rejected the state's
argument that Felder had waived his Sixth Amendment right to
counsel by failing to assert it after receiving Miranda warnings,
holding that "the mere giving of Miranda warnings, after the
accused through his lawyer has instructed the police not to
interrogate him, does not sanction that interrogation." Id. at
1249. Meadows instructed the police not to interrogate Self unless
he was present; in that respect, Self's case is similar to Felder;
but, the similarity ends there. Unlike Self, Felder did not
initiate the contact with police, nor did he express any desire to
talk with police officers in the absence of his attorney. Id. at
1250.
Most important, however, "Felder had not acted in a manner
inconsistent with his lawyer's instructions or advice". Id. at
1249. "[C]onsistent reliance upon the advice of counsel in dealing
with the authorities" has been held to refute any suggestion of
waiver. Brewer v. Williams, 430 U.S. at 404. Self did not
consistently rely on Meadows' advice. Indeed, the record
demonstrates that he consistently disregarded Meadows' specific
advice that he not take a polygraph examination and not talk to the
police. The June 12 confession was a continuation of the contact
initiated by Self following the administration of the polygraph
examination, conducted at his request.
- 46 - This case is similar, in some respects, to United States v.
Brown, 459 F.2d 319 (5th Cir. 1971), cert. denied, 409 U.S. 864
(1972). Brown spoke with her appointed attorney on the telephone
for 15 to 20 minutes. Id. at 323. After the conversation, she
told federal agents that the attorney had advised her to remain
silent, but indicated that she had lost confidence in the attorney
because he had not responded to a previous call. Id. She then
confessed. This court held that, "[i]n the circumstances of this
case a failure to invoke the right to counsel, which had just been
exercised, demonstrates a waiver of that right". Id. There was no
showing that Self had lost confidence in Meadows, but there is
evidence that he disregarded Meadows' specific advice by choosing
to submit to the polygraph examination. Although the amount of
time that elapsed between Self's exercise of his right to counsel
on June 9, and his failure to invoke that right on June 12, is
greater than that in Brown, we similarly conclude that in the
circumstances of this case, Self's failure to invoke the right to
counsel, which he had recently exercised, is a valid and
significant factor in the waiver analysis.
(2) Police Delaying Tactics
At the suppression hearing, Meadows testified that he
telephoned the Webster Police Department on the afternoon of June
12 to set up an appointment with Self (who was jailed in Houston)
and spoke with Morris. Meadows first testified that he placed the
call at 4:45 p.m., but later stated that "[i]t was around 5:30 or
5:45". During the habeas hearing, however, he testified that he
- 47 - placed it at 3:00 or 4:00 p.m. According to Meadows' testimony at
the suppression hearing, Morris discussed the case with him for
about fifteen minutes (during the habeas hearing, Meadows testified
that it lasted 15 to 30 minutes), and then told him that Self was
then signing a statement. (Self signed at 6:00 p.m.) Meadows
then called the Harris County Sheriff's Department in Houston and
told the person who answered that he did not want Self "making any
statements to anybody without me being there and the officer or
whoever it was on the other end indicated he would not". Meadows
testified at the habeas hearing that, in retrospect, he had the
impression that Morris was trying to stall him so that he would not
find out that Self was being interviewed.
Deal, who was present when Self signed the June 12 confession
in Houston, testified at the suppression hearing that Meadows
called the Harris County sheriff's department at about 6:05 p.m. on
June 12 and told Deal that the police were not to talk to Self
anymore unless he was present. Deal testified that, by the time he
spoke with Meadows, Self had already signed the confession; and
they complied with Meadows' request.
There is no state finding on this point. That Morris did not
interfere is implicit in the other findings and is fairly supported
by the record.31
31 Morris did not testify about a telephone conversation with Meadows on the afternoon of June 12. In any event, although it is reasonable to assume that Morris knew that Deal was in Houston for Self's polygraph examination, and perhaps to assume that Morris knew that the first confession contained insufficient detail, making a second confession desirable, there is no evidence that Morris knew that Self was being interrogated and was moments away
- 48 - C. Other District Court Errors
The magistrate judge's recommendation contains other errors,
two of which are mentioned here, because they may have affected his
recommendation, and the district judge's decision, to grant relief.
1. June 10 Recorded Interview
First, the district court found that a recorded interview of
Self on June 10 "[p]resumably ... contained no incriminating
statements since it was never offered in evidence against Self";
but, it further found that, because the tape was never provided to
Self's counsel, "it may well have contained exculpatory matters."
The record does not support these assumptions.
Deal testified at trial that Self was interviewed, and part of
the conversation taped, on Saturday, June 10. After Deal so
testified, Self's counsel asked him to furnish the tape, but Deal
was not then employed by the Webster police department and did not
have access to it. And, in response to a question by Self's habeas
counsel during the state habeas hearing, Meadows testified that he
did not recall having been told that, during the June 10 interview,
Self said that he removed the girls' clothing and put it in his
car. This reference to the contents of the tape suggests strongly
that Self's state habeas counsel had heard the tape, or seen a
transcript of it.32
from signing a second confession when Meadows called. 32 It thus seems likely that, if the tape contained exculpatory evidence, its contents would have been introduced during the habeas hearing. Moreover, if Self said during the interview that he had removed the clothing and put it in his car, this statement could hardly be considered "exculpatory".
- 49 - 2. Evidence of Guilt
The district court also held that Self's June 12 confession
"was the sole evidence implicating Self in the murders". It failed
to give weight to evidence that, as discussed, Self twice led
officers to the exact location where the remains were found, first
on June 9, after his first confession, and again on June 23.
Perhaps, as discussed in note 26 supra, it based this conclusion on
its ruling that this evidence was illegally obtained, in violation
of Self's Sixth Amendment right to counsel. Although the district
court noted that Self's counsel failed to object at trial to this
evidence, it failed to note that Self did not allege any
constitutional error in its admission. Nor does Self raise this
issue on appeal.
It is unclear whether these erroneous rulings had any impact
on the decision to grant the writ. In any event, Self is not
entitled to relief on the basis of either of them.
III.
This is a disturbing case, especially in light of Morris' and
Deal's convictions and Mitchell's claim about Morris' conduct
during the June 9 interrogation (including supposedly slapping a
nightstick in his hand). But, in cases such as this, where the
district court does not conduct an evidentiary hearing and has only
the state record before it, the deference that must be given to
state findings, especially credibility choices, is all the greater
and more necessary. For state habeas applications, pursuant to §
2254 and "our federalism", federal courts sit not as original
- 50 - finders of fact, but instead to review only within the balanced
boundaries of § 2254.
The state record fairly supports the state findings that Self
was advised about, and understood, his rights prior to the June 9
and 12 interrogations, and freely and voluntarily chose not to
exercise them. And, it is our "independent federal determination",
based upon "the totality of the circumstances, [including the state
findings, that] the challenged confession was obtained in a manner
compatible with the requirements of the Constitution", Miller v.
Fenton, 474 U.S. at 112; that Self validly waived his Fifth
Amendment right at the June 9 interrogation, as well as his Fifth
and Sixth Amendment rights at the June 12 interrogation.
For the foregoing reasons, the judgment of the district court
is REVERSED, and the case is REMANDED for the entry of an order of
REVERSED AND REMANDED.
- 51 -
Related
Cite This Page — Counsel Stack
Self v. Collins, Counsel Stack Legal Research, https://law.counselstack.com/opinion/self-v-collins-ca5-1992.