Appeal from the United States District Court for the Southern District of Illinois, Peoria Division. No. P 76-C-104 -- Robert D. Morgan, Judge.
Before Swygert, Sprecher, and Wood, Circuit Judges.
Petitioner-appellant Eutues White appeals from the judgment of the district court which denied his claim for habeas corpus relief under 28 U.S.C. § 2254. The basis of White's petition is that a confession admitted at his murder trial was obtained in violation of his rights under the Fifth Amendment as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Specifically, White contends that the interrogation which led to his confession occurred after he had made a request for counsel. The issues presented for decision are whether White made a request for counsel and if so, whether this request was waived. We hold that a request for counsel was made, but that this request was waived.
White was convicted by a jury of murder,*fn1 with the prosecution relying primarily upon his confession. At a suppression hearing held prior to trial, White challenged the admissibility of this confession. The trial court denied the motion.
On appeal, the Illinois Appellate Court ordered that a new suppression hearing be held.*fn2 This hearing was held and the confession was again found to be admissible.*fn3 On appeal, the Illinois Appellate Court affirmed this judgment.*fn4 The Illinois Supreme Court affirmed this decision*fn5 and the United States Supreme Court denied certiorari.*fn6
Thereafter, White petitioned the district court for a writ of habeas corpus. Without holding a hearing, the district court denied the application for a writ. On appeal, this court remanded for an evidentiary hearing to determine: 1) whether the appellant requested counsel when he was in custody; 2) whether there was a waiver of the request for counsel; 3) whether the officers acted in good faith in obtaining the confession; 4) whether the reasoning of Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 precludes federal habeas corpus relief.*fn7
On remand the district court held an evidentiary hearing. The district court made findings of fact and conclusions of law. The district court concluded that White did not make a request for counsel. At most, the district court found that White stated that "I'd rather see an attorney."*fn8 The district court also found that the confession was voluntary. Because no violation of petitioner's rights was found the district court declined to decide whether Stone v. Powell precludes habeas corpus relief for violations of the Miranda rules. We affirm the judgment of the district court but do so on different grounds. We conclude that a request for counsel was made but that White waived this request.*fn9
White was arrested in East St. Louis, Illinois on May 24, 1969. The arrest was for an offense unrelated to the murder for which he was eventually convicted. It appears that the arrest occurred sometime in the morning. After arriving at the police station, a Captain Johnson read White his Miranda rights. At this time a short conversation occurred between Johnson and White. Apparently Johnson sought to determine if he knew White and also asked White if he wanted to talk about why he was in custody. The exact words are not certain, but White responded in substance that "I'd rather see an attorney."*fn10 Johnson never notified the other officers of this request nor made note of it. Apparently, Johnson merely considered this an invocation of the right to remain silent.*fn11
Between May 24 and May 26, White was never given an attorney. Also, during that time he was subject to several interrogations by the investigating officers, a lineup, and a palm print. During the interrogation of May 25 White signed waiver forms and also signed typed confessions to other crimes.*fn12 Before each separate interrogation the officers gave White his Miranda rights. White indicated that he understood these rights. On May 26, White was again interrogated, given his Miranda rights, and signed a waiver of rights form and a confession typed out by one of the interrogating officers. The officers were not aware of White's prior remark requesting counsel nor did White at any time state that he now wanted counsel appointed nor that he had previously requested counsel. There was testimony that when White was asked if he wanted counsel, he responded in substance "I don't need a lawyer." After signing the confession White and several officers returned to the scene of the crime and reenacted the crime.
The initial inquiry is whether White made a request for counsel. The district court found that no "clear or unequivocal request" for counsel was made.*fn13 But it does appear that White did state in some form that "I'd rather see an attorney." The district court, however, did not believe that this statement was an actual request for an attorney but rather an invocation of the right to remain silent.
In determining whether a request for counsel was made, the language of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ...