United States District Court, Northern District of Illinois, E.D
September 15, 1982
UNITED STATES OF AMERICA EX REL. MIGUEL FELICIANO, PETITIONER,
MICHAEL P. LANE, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Miguel Feliciano filed this petition for a writ of
habeas corpus seeking
review of his state conviction for murder, burglary and
robbery. He was sentenced to 20 to 60 years on the murder
charge and 6 to 20 years on the burglary and robbery charges,
with the sentences to run concurrently.*fn1 Feliciano's
conviction was affirmed by the Illinois Appellate Court,
People v. Feliciano, 87 Ill. App.3d 1196, 47 Ill. Dec. 272,
414 N.E.2d 1388, consolidated (1st Dist. 1980), and the Illinois
Supreme Court has denied leave to appeal. A writ of certiorari
has been denied by the United States Supreme Court.
Presently before this Court is respondent's motion for
summary judgment on Feliciano's petition.*fn2 The petition is
based on two interrelated grounds: (1) that Feliciano was
convicted on the basis of an involuntary confession and (2)
that he was denied effective assistance of counsel because his
attorney at trial did not move to suppress the allegedly
coerced confession. The crucial question for our purposes is
whether Feliciano during his pretrial interrogation in fact
invoked his fifth amendment right to remain silent. For this
reason, the Court conducted an evidentiary hearing to fully
explore all the pertinent facts surrounding Feliciano's
Having carefully considered all the relevant evidence,
including that adduced at the evidentiary hearing, the Court
finds that Feliciano did not invoke his right to remain
silent, and that the assistant state's attorney who
interrogated the petitioner did not abuse his fifth amendment
privileges. Respondent's motion for summary judgment,
therefore, will be granted.
Facts of the Case
Miguel Feliciano and Ray Rogers were convicted in separate
trials of the murder and robbery of Sarah Schuster, an elderly
resident of Chicago, and the burglary of her apartment. The
substance of Feliciano's confession was that on the evening of
the murder Feliciano and Rogers entered Mrs. Schuster's
apartment on the pretense of helping her fix a broken door
lock. Once in the apartment, Rogers forced Mrs. Schuster onto
a bed and directed Feliciano to tie her feet while Rogers
bound her hands and gagged her. While Rogers searched the
bedroom for money, Feliciano went into the apartment hallway.
Attempting to hurry Rogers, Feliciano told him he was going to
their car and would only wait fifteen minutes. Rogers came to
the car within that time and both men proceeded to Feliciano's
apartment where they divided the money Rogers had found in
Mrs. Schuster's apartment. Feliciano's share of the loot was
approximately $120. Mrs. Schuster died of asphyxiation caused
by the gagging.
At approximately 3:00 a.m. on September 15, 1977, Feliciano
was arrested at his home and taken to a police station for
questioning. He was given Miranda warnings both upon arrest and
again at the police station. At approximately 4:00 a.m.,
Feliciano spoke "off the record" with Cook County Assistant
State's Attorney Jeffrey Singer. He told Singer of his
participation in the Schuster robbery and agreed to take police
to a location where Rogers could be found. After he directed
the police to Rogers, Feliciano was returned to the police
station, where Singer requested that Feliciano tell him again
about the robbery, only this time it would be "on the record."
Feliciano agreed and a court reporter was summoned.
The transcribed questioning of Feliciano began at 6:05 a.m.
Singer commenced by again giving the Miranda warnings to
Feliciano. Accordingly, Singer advised Feliciano of his right
to remain silent, of the government's right to use his
statements against him, of his right to have an attorney
present and of his right to have an attorney appointed for him.
Singer's warnings, however, did not include a specific
statement that Feliciano could terminate the questioning at any
time. Immediately after these
warnings, the following conversation took place:
[Singer] Q. Knowing these rights that I have so
advised you of, do you still wish to answer
inquiries that I will pose to you?
[Feliciano] A. No.
Q. Do you wish to answer any of the questions
that I will pose to you?
A. Oh, I'll answer all the questions.
Q. You'll answer all the questions?
The narrow questions presented for this Court are: (1)
whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), requires an explicit warning that an
arrestee can terminate questioning at any time, and (2) whether
Feliciano, as a matter of fact, intended to terminate
questioning and invoke his right to remain silent.*fn4
Findings and Conclusions of the Court
The United States Supreme Court established in
Miranda that: "If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease." 384 U.S. at
473-74, 86 S.Ct. at 1627. As petitioner concedes, the Supreme
Court has never required Miranda warnings to include a separate
explicit statement that questioning may be halted at any
A suspect must be effectively apprised of his constitutional
rights before he can be deemed to have waived them.
Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46
L.Ed.2d 313 (1975). In the instant cause, it is apparent that
Feliciano was repeatedly told of his right to remain silent.
During the 6:05 a.m. interrogation in question, he was asked
three times whether he understood that he did not have to
answer any questions. He replied in the affirmative each time.
All three questions occurred at the very outset of the
interrogation. Feliciano stated later during the interrogation
that he had been apprised of his rights earlier that evening.
Corroborating this statement is the testimony of the arresting
officer at the evidentiary hearing that Feliciano had been
given Miranda warnings upon arrest, and on two later occasions
by Singer. The officer further testified that Feliciano
indicated he understood these rights.
For the foregoing reasons, we find that Miguel Feliciano was
effectively informed of his constitutional rights before the
interrogation in question. While it is always the better
procedure to make every effort to insure that a suspect
understands his rights, the absence of a separate statement
informing a suspect of his right to terminate questioning does
not violate the Miranda doctrine.
Having concluded that Feliciano was effectively apprised of
his rights, we must determine whether he intended to exercise
these rights by his response of "No" to Singer's question
". . . do you still wish to answer inquiries that I will pose
to you?" Further, even if Feliciano did not intend to invoke
his right to remain silent, we must determine whether Singer
was required to cease questioning once he received an
apparently negative response.
Respondent asserts that Feliciano simply did not understand
the word "inquiries."*fn6
When the question was rephrased in more basic vocabulary,
using the word "questions" instead of "inquiries," Feliciano
understood and confirmed his desire to make a statement and
waive his right to remain silent. Feliciano now contends he
understood the word "inquiries," intended to invoke his right
to remain silent, and changed his answer on the second
exchange out of fear of the consequences if he did not
cooperate with Singer.
Petitioner's contention that his affirmative answer to
Singer's rephrasing of the question was the result of coercion
is not tenable. Feliciano maintains that the coercion came in
the form of an emotional, threatening outburst by Singer in
which he paced the room and "made faces" at Feliciano.
Petitioner contends that from these actions he could tell what
was in Singer's mind — that Singer wanted "to take me back to
the room and do some kind of physical force to make me
talk."*fn7 Feliciano's testimony as to Singer's actions and
his own reactions to Singer following the apparently negative
response do not comport with his further testimony that no time
elapsed between his answer of "No" and Singer's next question.
Rather, it is far more probable that Feliciano's limited
education has resulted in a restricted vocabulary.*fn8
Feliciano had shown every indication of cooperation prior to
this statement. Once the word "questions" was substituted for
the word "inquiries," he again showed complete cooperation. The
Court finds, therefore, that Feliciano did not intend to invoke
his right to remain silent with his initial response of "No."
Petitioner asserts, however, that once an apparently
negative response was uttered, Singer had a duty, under the
cases interpreting Miranda, to cease questioning and not resume
interrogation unless he gave Feliciano another set of Miranda
warnings. Petitioner argues that, as the Seventh Circuit
emphasized in United States v. Crisp, 435 F.2d 354 (7th Cir.
1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d
116 (1971), once the privilege of the fifth amendment has been
asserted, the interrogator must not disregard it by seeking to
unreasonably narrow its scope or have the suspect retract the
invocation. 435 F.2d at 357.
An important distinction exists, however, between the
instant case and Crisp. The petitioner in Crisp, rather than
answering with a single word, replied to the invitation to make
a statement in narrative form, saying that "he was not willing
to discuss any activities on his part concerning the
[Grunfield] bank robbery or any bank robbery in which he might
have been involved." Id. The Crisp court found that this answer
was not "in any manner ambiguous." Id. In contrast, while the
word Feliciano uttered was not ambiguous, the manner and
context of his testimony created some ambiguity. Feliciano was
a cooperative subject who had made numerous affirmances of his
willingness to answer questions. It was reasonable for Singer
to wonder whether the "No" meant Feliciano had changed his mind
or whether it meant he misunderstood the question, particularly
in view of the fact that he had repeatedly stated immediately
prior to the exchange in question that he was willing to answer
Singer's questions on the record.
The Second Circuit was presented with a somewhat similar
situation in the case of Wilson v. Henderson, 584 F.2d 1185 (2d
Cir. 1978), cert. denied, 442 U.S. 945, 99 S.Ct.
2892, 61 L.Ed.2d 316 (1979). Wilson was arrested for a murder
and robbery occurring on July 4th. After being given the
standard Miranda warnings, Wilson was asked if he wished to
make a statement. He replied, "No." He was immediately asked,
"Well, would you care to tell me what you did on July 4th?"
Wilson replied, "Yes," and gave a statement that placed him at
the scene of the murder and robbery. He stated he had witnessed
the crime, but insisted that he fled the premises because he
was not personally involved and feared being blamed. 584 F.2d
at 1186-87. The statement was introduced at trial, along with
other evidence, and Wilson was subsequently convicted of murder
and the unlawful possession of a weapon. Id. at 1187. On
review, the Second Circuit concluded that Wilson's statement
was not coerced.
The Wilson court stated that Miranda "did not create a per se
proscription of indefinite duration upon any further
questioning" once a subject invoked his right to remain silent.
Id. The length of time between questioning although of
significance is not the controlling factor in determining a
fifth amendment violation. The pivotal question, rather, is
whether the individual's "will to resist was overborne by
persistent or coercive questions." Id. at 1189. Accordingly,
the Second Circuit decided that Crisp does not mandate that the
incriminating statements in the Wilson case be suppressed.
In the case before us, there is no evidence of persistent or
coercive questioning by either Assistant State's Attorney
Singer or the police officers in the face of statements by
Feliciano that he wished to remain silent. Indeed, there was
no need for such alleged persistence. Feliciano had answered
all previous questions and both Singer and the officers found
Feliciano to be totally cooperative. He had even assisted in
locating an additional suspect. Although Crisp requires that an
interrogator refrain from seeking the retraction of a subject's
apparent invocation of his fifth amendment rights, it is clear
that Singer's second question was not a request that Feliciano
retract his first answer. Rather, it was a request that he
clarify that answer. Thus, in light of all the circumstances
herein, Singer was not required, as a matter of law, to refrain
from asking Feliciano to clarify his earlier response.*fn9
For the reasons stated, respondent's motion for summary
judgment is granted and Feliciano's petition for a writ of
habeas corpus is denied. It is so ordered.