ANTONIO MARTINEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-5814 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The District Of Columbia Court Of Appeals Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-21a) is reported at 566 A.2d 1049. JURISDICTION The judgment of the court of appeals was entered on November 21, 1989. A petition for rehearing was denied on June 28, 1990. The petition for a writ of certiorari was filed on September 25, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the trial court properly permitted the government to use petitioner's post-indictment statement for impeachment purposes when the statement was made without a valid waiver of petitioner's Sixth Amendment right to counsel. STATEMENT After a jury trial in the Superior Court of the District of Columbia, petitioner was convicted of voluntary manslaughter while armed, in violation of D.C. Code Sections 22-2405 and 22-3202. He was sentenced to 15 years' to life imprisonment. The court of appeals affirmed. Pet. App. 1a-21a. 1. The evidence at trial showed that on August 6, 1981, petitioner attended a party in his brother's apartment. Following an argument at the party, petitioner stabbed Santos Berrios in the chest. Petitioner then pushed Berrios out the window of the fifth floor apartment. The fall caused Berrios' death, although the medical examiner testified that the stab wound would have been fatal if Berrios had not first died because of the fall. Pet. App. 2a-4a. On November 17, 1982, a grand jury indicted petitioner and his brother for second-degree murder while armed. Petitioner, however, fled to El Salvador and failed to appear for his arraignment. Petitioner remained a fugitive for more than two years until he was arrested in California on December 15, 1984. Pet. App. 6a. Following extradition proceedings in California, petitioner was returned to the District of Columbia on January 25, 1985. Upon his arrival, he was taken to an interview room in the office of the Homicide Branch at police headquarters. Detective Cianciotti gave petitioner the standard warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). After it became apparent to Cianciotti that his command of Spanish was inadequate to converse with petitioner, he sought the assistance of a Spanish-speaking officer, Detective Villars. Pet. App. 6a-7a. Villars read petitioner the Miranda warnings in Spanish; he then asked petitioner whether he wished to answer questions and whether he was willing to answer questions without an attorney present. Petitioner responded "no" to both questions. He told Villars that, on the advice of his brother's lawyer, he was not going to answer any questions. /1/ Villars informed Cianciotti that petitioner had refused to answer any questions without an attorney present. Pet. App. 7a. Cianciotti then read aloud routine biographical questions from the standard booking form, which Villars translated into Spanish. Cianciotti typed the translated answers on the form. Pet. App. 7a-8a. When Cianciotti got to the last section of the form, which contained a blank space entitled "Defendant's Version," he told Villars to ask petitioner "if he wanted to tell his side of the story." Petitioner responded by refusing to answer any more questions. Villars translated that response to Cianciotti, who replied, "Fine, that is his right. He doesn't have to if he doesn't want to." Villars told petitioner what Cianciotti had said. Pet. App. 8a. Villars then got up and began to walk toward the door. At that moment petitioner called out to Villars, saying, "Wait, I'm going to tell you what happened." Villars walked back to the table, and petitioner recounted, in narrative form without any questioning from Villars, what had happened on the night of the stabbing. /2/ Ibid. 2. Petitioner testified in his own defense, giving a version of the homicide that was inconsistent in several respects with the version he had given to the officers. /3/ The government then sought leave to use petitioner's pretrial statement to impeach him, and the court permitted the government to introduce the statement for that limited purpose. Pet. App. 9a. 3. The court of appeals affirmed. The court first considered whether petitioner "knowingly and intelligently waived his right to counsel." Pet. App. 10a. Citing Michigan v. Jackson, 475 U.S. 625, 626 (1986), and Edwards v. Arizona, 451 U.S. 477, 484 (1981), the court made note of the rule established in those cases, that "once a suspect invokes his or her right to counsel, the right is waived only when the defendant thereafter initiates a conversation with the police." After recounting the sequence of events preceding petitioner's statement to Villars, the court found that it was just as likely that petitioner's statement "was a product of Villars' question rather than a reopening of a dialogue with the detectives." Pet. App. 11a. Finding that the government had not "met its burden" under Edwards and Jackson, the court agreed "with the trial court that (petitioner's) statement was voluntary, but that he did not waive his Sixth Amendment right to counsel." Id. at 12a. The court of appeals nevertheless held that a "statement obtained in violation of a defendant's Sixth Amendment right to counsel could * * * be introduced to impeach that defendant's testimony at trial." Pet. App. 12a. The court pointed out that "(t)he majority of state and federal courts that have addressed (the issue) are in harmony with the government's position that statements obtained in violation of a defendant's Sixth Amendment right to counsel can be introduced as impeachment evidence, just as evidence obtained in violation of the Fourth and Fifth Amendments can be introduced, and for the same reasons." Pet. App. 12a-13a. While acknowledging that the statement would not have been admissible, even for impeachment purposes, if it had been obtained "by use of abusive tactics, coercion, or duress," Pet. App. 20a, the court held that the evidence obtained in this case was the product of a "good faith mistake, as opposed to abusive or willful misconduct," id. at 21a. The court therefore concluded that "the truth-seeking function was better served by the introduction of the exculpatory statement than the deterrent function would have been by its exclusion." Ibid. In a brief dissent, Judge Mack stated that she would apply the holding of the Second Circuit in United States v. Brown, 699 F.2d 585, 588-591 (2d Cir. 1983), and "reverse (petitioner's) conviction on the ground that his statement was erroneously admitted to impeach his testimony, in violation of his Sixth Amendment right to counsel." Pet. App. 21a. ARGUMENT The court of appeals was correct to rule that petitioner's statement to Detective Villars was admissible at trial for impeachment purposes. In Michigan v. Harvey, 110 S. Ct. 1176 (1990), this Court held that voluntary statements obtained in violation of the rule of Michigan v. Jackson, 475 U.S. 625 (1986), could be used for impeachment purposes. The Court did not decide whether voluntary statements would be admissible if they were obtained in violation of the Sixth Amendment, as opposed to the prophylactic rule of Jackson. 110 S. Ct. at 1182. Petitioner contends that this case presents that question. We disagree. Because the court of appeals' ruling predated this Court's decision in Michigan v. Harvey, the court of appeals did not find it necessary to state expressly whether the interrogation in this case violated the Sixth Amendment itself or the prophylactic rule of Michigan v. Jackson. We believe, however, that the court's discussion of the issue indicates that the court found that petitioner's waiver of his Sixth Amendment rights was invalid only because the police violated the Jackson rule. This case is therefore controlled by Harvey and does not properly present the question petitioner asks this Court to decide. 1. In Michigan v. Harvey, this Court held that the "prosecution may use a statement taken in violation of the (prophylactic rule of Michigan v. Jackson) to impeach a defendant's false or inconsistent testimony," even though such a statement "could not be admitted as substantive evidence in the prosecution's case in chief." 110 S. Ct. 1177-1178. Under the Jackson rule, "once a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right -- even if voluntary, knowing, and intelligent under traditional standards -- is presumed invalid if secured pursuant to police-initiated conversation." 110 S. Ct. at 1177. Identifying Jackson as a prophylactic rule analogous to the rule in Miranda, the Court held that, as in the case of statements obtained in violation of Miranda, statements obtained in violation of Jackson must be suppressed from the prosecution's case-in-chief, but can be used for impeachment purposes. The Court in Harvey limited its ruling to statements obtained in violation of Jackson's prophylactic rule. The Court did not find it necessary to decide whether the same analysis would extend to statements obtained in violation of the Sixth Amendment. That is, the Court left open the question of "the admissibility for impeachment purposes of a voluntary statement obtained in the absence of a knowing and voluntary waiver of the right to counsel." 110 S. Ct. at 1182. 2. We agree with petitioner that the question he presents -- whether a statement obtained without a knowing and intelligent waiver of the defendant's Sixth Amendment rights may be used for impeachment purposes -- is worthy of this Court's review. We do not agree with petitioner, however, that this case squarely presents that issue. Because it appears that the court of appeals found petitioner's statement to have been obtained in violation of Jackson, but not in violation of the Sixth Amendment itself, this case appears to be controlled by Harvey and not to present the issue on which petitioner urges review. The record demonstrates that, setting aside the Jackson violation, petitioner made an intelligent, knowing, and voluntary waiver of his right to counsel: petitioner had received Miranda warnings and had indicated that he understood them by invoking his right to remain silent. The officers explicitly informed petitioner that it was his right to remain silent and that he did not have to talk if he did not want to. Only after the interview terminated without any further questioning did petitioner seek to renew the discussion so as to recount his version of the story. Even conceding that Detective Villars' final question to petitioner prompted the statement at issue here, all the evidence indicates that petitioner chose to speak despite full awareness of the rights he was relinquishing. In sum, petitioner's decision to talk to Detective Villars -- with full knowledge of his Miranda rights -- would have been viewed as reflecting an effective waiver of his right to counsel but for the rule in Jackson. See Solem v. Stumes, 465 U.S. 638, 646-648 (1984). If that is so, petitioner's pretrial statement was admissible under this Court's decision in Harvey to impeach his testimony at trial. The court of appeals' judgment is consistent with this view of the case. To be sure, because the court of appeals decided this case before this Court decided the Harvey case, the court of appeals did not find it necessary to decide whether the waiver in this case was invalid because of Jackson or because the waiver was not knowing and intelligent. Moreover, the legal analysis used by the court of appeals was not limited to statements obtained in violation of Jackson. The court of appeals addressed the question that this Court subsequently left open in Harvey, and concluded that any voluntary statement obtained in violation of the Sixth Amendment is admissible for impeachment purposes. But in finding a violation in this case, the court appears to have relied entirely on the Jackson rule, so that the holding of the court -- as opposed to its analysis -- is no broader than this Court's decision in Harvey. In the portion of its opinion dealing with the violation in this case, the court of appeals characterized the inquiry as "whether (petitioner) knowingly and intelligently waived his right to counsel." Pet. App. 10a. But in addressing that issue, the court relied entirely on analysis from this Court's decision in Jackson and its Fifth Amendment analogues, Edwards v. Arizona, 451 U.S. 477 (1981), and Smith v. Illinois, 469 U.S. 91 (1984). See Pet. App. 11a-12a. In particular, the court noted that under Edwards, once a defendant has invoked his right to counsel "'a valid waiver cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.'" Pet. App. 11a (quoting Edwards, 451 U.S. at 484). In that setting, the court noted, this Court has established a bright-line rule that "once a suspect invokes his or her right to counsel, the right is waived only when the defendant thereafter initiates a conversation with the police." Pet. App. 11a. Because petitioner's statement may have been "a product of Villars' question rather than a reopening of a dialogue with the detectives," the court concluded that the government had failed to meet its burden of showing a valid waiver of the right to counsel in this case. Ibid. (citing Edwards). In sum, based on the facts of the case and the court of appeals' discussion of the issue, it appears that the violation in this case was based on the Edwards-Jackson prophylactic rule, and that the court of appeals characterized it in that way. If that is so, the court of appeals was correct, in light of the subsequent decision in Harvey, to hold petitioner's pretrial statement admissible for impeachment purposes. 3. As noted, we agree that the question petitioner identifies -- whether a statement made in the absence of a knowing and intelligent waiver of the right to counsel may be used for impeachment -- is one that merits this Court's review; accordingly, if the Court concludes that this case presents the issue properly, the Court may wish to grant certiorari in this case. The question is an important one, it was left open in Harvey, and it has divided the lower courts. Most lower courts have held, like the court of appeals in this case, that voluntary statements obtained in violation of the Sixth Amendment may be admitted for impeachment purposes. See United States v. Lott, 854 F.2d 244 (7th Cir. 1988); United States v. McManaman, 606 F.2d 919 (10th Cir. 1979); United States v. Taxe, 540 F.2d 961 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977); State v. Thomas, 698 S.W.2d 942 (Mo. 1985); People v. Maerling, 64 N.Y.2d 134, 485 N.Y.S.2d 23, 474 N.E.2d 231 (1984); State v. Swallow, 405 N.W.2d 29 (S.D. 1987). The Second Circuit, however, has disagreed. In United States v. Brown, 699 F.2d 585 (2d Cir. 1983), the Second Circuit held that a statement obtained in violation of the Sixth Amendment could not be used for any purpose, including impeachment, even if the statement was voluntary. The defendant in Brown admitted to an FBI agent that he had been involved in an armed robbery. The agent, who knew at the time that the defendant had been indicted for armed robbery and was awaiting arraignment and appointment of counsel within the hour, "did nothing to explain to (the defendant) the significance of his legal situation, or that he would shortly have the advice and representation of a lawyer." 699 F.2d at 588. The court found that the statements made by the defendant were taken "without a valid waiver of his right to counsel," ibid., and refused to allow the government to use them to impeach the defendant at trial. Relying on New Jersey v. Portash, 440 U.S. 450 (1979), the court observed that "(h)ere we deal with the taking and use of an indicted defendant's statement in violation of his Sixth Amendment right to counsel." The court reasoned that, just as in Portash, where a compelled statement taken in violation of the privilege against compulsory self-incrimination was held to be inadmissible at trial for any purpose, so here, in the case of a statement obtained in direct violation of the Sixth Amendment, it was "impermissible" to admit the statement for impeachment by balancing a violation of the constitutional right to counsel against the need to deter perjury. 699 F.2d at 590. Four years later, the Second Circuit reaffirmed its holding in Brown. See Meadows v. Kuhlmann, 812 F.2d 72, 77 (2d Cir.), cert. denied, 482 U.S. 915 (1987). Although the Meadows court held the impeachment use of the statement at issue in that case to be harmless error, the court reaffirmed the rule in Brown that in the Second Circuit a statement obtained in violation of the Sixth Amendment may not be used for any purpose, including impeachment. /4/ To be sure, the Second Circuit has not had an occasion since this Court's decision in Harvey to decide whether it would continue to adhere to its minority position. But in light of the fact that Harvey expressly left open the question addressed here and in the Second Circuit's decisions in Brown and Meadows, there is no reason to suppose that that court will regard Harvey as requiring it to abandon its position, except as applied to statements that violate only the prophylactic rule of Jackson. Accordingly, if this Court agrees with petitioner that this case squarely presents the issue the Court left open in Harvey, review in this case would be appropriate. But if the Court agrees with us that this case does not properly present that issue, the petition should be denied. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General WILLIAM C. BRYSON Deputy Solicitor General AMY L. WAX Assistant to the Solicitor General ROBERT S. MUELLER, III Assistant Attorney General GEOFFREY R. BRIGHAM Attorney NOVEMBER 1990 /1/ Villars asked petitioner four questions, as follows, to which he received these oral responses: 1. "Have your rights been read to you?" "Yes." 2. "Do you understand your rights?" "Yes." 3. "Do you wish to answer the questions now?" "No." 4. "Are you willing to answer questions now, without an attorney present?" "No." After reading the questions, Villars gave petitioner a card on which the four questions were printed in Spanish and asked him to read the front and back, write out a "yes" or "no" answer to each question, and then sign the card. The answers petitioner wrote down were consistent with his oral answers. Pet. App. 7a. /2/ Petitioner told Villars that he was alone in his apartment when he heard a knock on the front door. He opened the door and saw Berrios standing there with a knife. Berrios tried to stab petitioner with the knife as petitioner retreated through a hallway and into his bedroom with Berrios in pursuit. Petitioner told Villars that he somehow managed to take the knife away from Berrios. As the two stood near the bedroom window, he stabbed Berrios once with the knife. According to petitioner, Berrios then fell out the window. Pet. App. 8a. /3/ Petitioner testified that he stabbed Berrios in his brother's apartment in the company of others. Pet. App. 19a. In his trial testimony, in contrast to his pretrial statement, petitioner said that Berrios had attacked him with two knives, that petitioner had managed to wrest one of the knives from Berrios, and that he stabbed Berrios as Berrios was coming at him with the second knife. He testified that he did not know how Berrios managed to fall out the window. Gov't C.A. Br. 5-6. /4/ The Michigan Supreme Court reached a similar conclusion in People v. Gonyea, 421 Mich. 462, 365 N.W.2d 136 (1984), but as petitioner notes, that decision rests principally on state law. The court's analysis, however, relied heavily on federal precedents, and the concurring judge appears to have relied solely on the Sixth Amendment. There is no square conflict between the decision in this case and the decisions of the Sixth Circuit in Bishop v. Rose, 701 F.2d 1150 (1983), and the Supreme Court of Illinois in People v. Knippenberg, 66 Ill. 2d 276, 362 N.E.2d 681 (1977). Both of those cases involved the prosecution's use of privileged information that was intended for disclosure only to the defendant's attorney but was inadvertently disclosed to the prosecution.