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Eagan v. Duckworth

decided: March 22, 1988.

GARY JAMES EAGAN, PETITIONER-APPELLANT,
v.
JACK R. DUCKWORTH, WARDEN, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, No. S 86-56 -- Allen Sharp, Judge.

Bauer, Chief Judge, Coffey, Circuit Judge, and Eschbach, Senior Circuit Judge.

Author: Bauer

BAUER, Chief Judge.

The petitioner, Gary Eagan, appeals from the district court's order denying his petition for a writ of habeas corpus. We reverse and remand.

I.

The petitioner was tried and convicted by a Lake County, Indiana jury of attempted murder for stabbing a woman nine times after she refused to have sexual relations with him.

According to the evidence introduced at trial, Eagan and several companions picked up the woman as they drove through Chicago late on the evening of May 16, 1982. Sometime thereafter, Eagan, his friends and the woman met with several other men, all of whom drove together to Indiana and parked on a beach along the Lake Michigan shoreline. The woman then had sexual relations with several of the men in the group, although it is not clear from the record whether she was coerced into the sexual activities or consented upon the payment of money. Eagan, his original companions, and the woman then separated from the larger group. Shortly thereafter, they returned to the same Lake Michigan beach where Eagan and his companions apparently desired to continue their sexual activities with the woman. She refused. A struggle ensued, which ended with Eagan stabbing the woman nine times and then fleeing.

Eagan and his companions returned to Chicago where Eagan called a Chicago policeman he knew to report that he had seen the naked body of a dead woman lying on the beach along the shores of Lake Michigan. Eagan subsequently led the Chicago police to the woman. The police found the woman screaming for help, and upon seeing Eagan, the woman asked him in the presence of the police why he had stabbed her. Eagan explained to the police that he had been with the woman earlier that evening but had been attacked by several men who abducted the woman. The Chicago police turned the matter over to the Hammond, Indiana police, who requested that Eagan accompany them to the Hammond police station for questioning.

At approximately 11:00 a.m. the following morning, May 17, 1982, detectives from the Hammond Police Department questioned Eagan. Before questioning, Hammond police detectives read to Eagan, and asked him to sign, a waiver form which provided:

YOUR RIGHTS

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you've talked to a lawyer.*fn1

(Emphasis added.) During the ensuing interview, Eagan gave an exculpatory recitation of his activities the night of the crime.

At approximately 4:00 p.m. the following day, May 18th, the Hammond police interviewed Eagan for a second time. Before this interrogation, Eagan signed another waiver form which stated:

1. Before making this statement, I was advised that I have the right to remain silent and that anything I might say may or will be used against me in a court of law.

2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.

3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.

4. That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation.

5. That if I do not hire an attorney, one will be provided for me.

After reading and signing this waiver form, Eagan admitted that he had stabbed the woman and then led police to the area along the Lake Michigan shoreline where he had discarded the knife used in the stabbing as well as several items of clothing. At trial, the state court admitted Eagan's confession, the knife, and the clothing. The jury found Eagan guilty of attempted murder but acquitted him of rape. The court sentenced him to 35 years imprisonment.

II.

Eagan argues that the police obtained his confession in violation of his constitutional right against self-incrimination because the first waiver form he signed failed to apprise him adequately of his right to a lawyer, if he so desired, before the police questioned him. Specifically, Eagan claims that the "if and when you go to court" passage in the sixth sentence of the waiver form was confusing and misleading and that he did not understand that the court would appoint him counsel before police interrogation.

In United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972), this court confronted a warning identical to the one issued to Eagan. In Twomey, the warning given by an Indiana State Trooper stated that the habeas corpus petitioner, Williams, had the "right to the advice and presence of an attorney whether you can afford to hire one or not. We have no way of furnishing you with an attorney, but one will be appointed for you, if you wish, if and when you go to court." Id. at 1249-1250 n.1. We stated that

the warning given here was not an "effective and express explanation;" to the contrary, it was equivocal and ambiguous. In one breath appellant [Williams] was informed that he had the right to appointed counsel during questioning. In the next breath, he was told that counsel could not be provided until later. In other words, the statement that no lawyer can be provided at the moment and can only be obtained if and when the accused reaches court substantially restricts the absolute right to counsel previously stated; it conveys the contradictory message that an indigent is first entitled to counsel upon an appearance in court at some unknown, future time. The entire warning is therefore, at best, misleading and confusing and, at worst, constitutes a subtle temptation to the unsophisticated, indigent accused to forego the right to counsel at this critical moment.

Id. at 1250.

Although over fifteen years have passed since this court rendered Twomey, it remains the "seminal case in this circuit dealing with the issue of ambiguously worded Miranda warnings," Emler v. Duckworth, 549 F. Supp. 379, 381 (N.D. Indiana, 1982). We see no reason to stray from its teachings now. The "internal inconsisten[cies]", United States ex rel. Placek v. State of Illinois, 546 F.2d 1298, 1300 (7th Cir. 1976), inherent in this type of warning are no less ambiguous and misleading today than they were fifteen years ago. The "if and when" language limits and conditions an indigent's right to counsel on a future event. The warning suggests erroneously that only those accused who can afford an attorney have the right to have one present before answering any questions; those who are not so fortunate must wait. This language further implies that if the accused does not "go to court," i.e. the government does not file charges, the accused is not entitled to an attorney at all.

Thus, this warning is constitutionally defective because it denies an accused indigent a clear and unequivocal warning of the right to appointed counsel before any interrogation. Twomey, 467 F.2d at 1250. We caution that our holding does not require that the police furnish an accused with counsel immediately. See, e.g., Placek, 546 F.2d at 1300. Nor do we urge police officers to make this appointment. The problem with the warning given Eagan is not its lack of immediacy but its confusing linkage of an indigent's right to counsel before interrogation with a future event. This potential misunderstanding violates Miranda. California v. Prysock, 453 U.S. 355, 360, 69 L. Ed. 2d 696, 101 S. Ct. 2806 (1981).*fn2

III.

Under Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), Eagan's second statement was not necessarily tainted by the initial infirm warning. This conclusion, however, does not obviate our responsibility to determine whether Eagan's waiver of rights before the second statement was knowing and intelligent -- the defendant's main argument on appeal. Although Eagan's second statement was made voluntarily, this conclusion does not end our inquiry. In addition to being voluntary, a "waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986).

Eagan argues that his second waiver was not knowingly and intelligently given because of the misapprehension caused by the initial warning, and the failure of the second warning to correct that misapprehension. This argument is not defeated by a determination that the second statement probably was not tainted by the improper warnings given prior to the first statement. When a defendant gives a statement while in custody, the government has the burden of showing that the defendant knowingly and intelligently waived his rights. United States ex rel. Williams v. Twomey, 467 F.2d 1248, 1251 (7th Cir. 1972). Whether a waiver was knowing and intelligent is a question of fact, Perri v. Director, Department of Corrections, 817 F.2d 448, 451 (7th Cir. 1987), requiring an evaluation of all the surrounding circumstances. Elstad, 410 U.S. at 318.

As a result of the first warning, Eagan arguably believed that he could not secure a lawyer during interrogation. The second warning did not explicitly correct this misinformation. Of course, we know very little about the factual circumstances surrounding these events because the state courts did not directly examine this issue. These are not matters for appellate determination and have not been adequately determined below. Accordingly, we remand for a determination of whether the defendant knowingly and intelligently waived his right to the presence of an attorney during the second interrogation.

REVERSED AND REMANDED.

COFFEY, Circuit Judge, dissenting.

This court recently observed that "the Supreme Court has never mandated that law enforcement officers use certain 'magic words' to inform a defendant of his rights." Richardson v. Duckworth, 834 F.2d 1366, 1370 (7th Cir. 1987). Nonetheless, the majority reaffirms United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972), resurrecting "an overly technical application of the Miranda rule." Id. at 1253 (Pell, J., dissenting). The majority's application of Twomey is inconsistent with the reasoning and holding of Richardson, as well as our earlier decision in United States v. Johnson, 426 F.2d 1112 (7th Cir.), cert. denied, 400 U.S. 842, 91 S. Ct. 86, 27 L. Ed. 2d 78 (1970), and is contrary to the great weight of authority. Thus, I respectively dissent. Further, assuming arguendo, that Twomey retains its validity, rendering the petitioner's initial statement inadmissible since it was made in technical violation of Miranda, I would still affirm the district court. The petitioner received a subsequent constitutionally sufficient Miranda warning and voluntarily and knowingly waived his rights before confessing to stabbing the victim.

I.

The petitioner was tried and convicted before a jury in Lake County, Indiana, of attempted murder.*fn1 According to the evidence, Eagan and at least two companions picked up the woman as they drove through South Chicago, Illinois, late on the evening of May 16, 1982. The victim testified that sometime thereafter she, Eagan, and his companions, met some other men and decided to drive to Indiana and visited on a beach on the Lake Michigan shoreline. Sometime thereafter, the victim had sexual relations with at least three of the men in the group, although it is not clear from the record whether she was coerced or consented to engaging in the sexual activities. Eventually, it appears that the defendant, his companions, and the woman left the lakefront but returned later to the same beach area. The woman refused to engage in further sexual relations at which time, according to the victim's testimony, the defendant repeatedly stabbed her (9 times) and left the scene with his companions.

The petitioner returned to Chicago where he called the Chicago police and requested to talk to Officer LoBianco, with whom he was acquainted. LoBianco testified at trial that he and another officer went to an apartment building in Chicago and met Eagan. Eagan, denying his guilt, informed LoBianco that "he would like to take [him] to an area where he spotted a body." According to LoBianco's testimony, Eagan further elaborated, stating that "he found a naked woman dead" at the lakefront. LoBianco's earlier deposition testimony regarding his conversation with Eagan on the way to the lakefront was read into the trial record at this time as follows:

"I kept asking him, 'Are you sure what you're telling me is true? Do you know what you are saying to me?', all this stuff. I kept asking him and asking him. This was a story about a homicide. What is a homicide? It's hard to say. So she was just laying there not breathing, nothing. No movement on her or nothing. And, during the whole -- going to the area this is when this conversation was going on. Okay, at that time he was just somebody that found a woman, okay, dead in the weeds."

The petitioner led the Chicago police to the exact location in a wooded area along Lake Michigan in Indiana, a short distance from the Illinois-Indiana border where the police found the victim moaning and screaming for help. LoBianco further testified that upon seeing the petitioner, the victim spoke up, and addressing her statements to Eagan, stated: "Why did you stab me? Why did you stab me?"

At this time LoBianco's partner called an ambulance and the victim was conveyed to a hospital. Eagan accompanied the officers to the hospital where he was initially questioned concerning his alleged discovery of a nude woman's body. The petitioner explained to LoBianco that he had come across the nude body while "he was out there for a party." At approximately 7:30 a.m. two Chicago police detectives took over the investigation and escorted Eagan back to the lakefront. At that time, the Chicago police, noting that the crime had been committed in Indiana, turned the matter over to the Indiana authorities for further investigation. Hammond Police Detectives Raskosky and Baughman arrived on the scene at approximately 8 a.m. the morning of May 17.

Officer Raskosky, while testifying at trial in answer to an interrogatory, stated that initially he believed that Eagan was only a possible witness to the stabbing. Raskosky further testified that the petitioner informed him that:

"he [Eagan] had been attacked earlier in the evening by several subjects. He was beaten, and he requested that he wanted to make out a police report, obtain a warrant for those subjects. So he voluntarily went to the Robertsdale Station [a Hammond police station] to make out a report with Officer Lora."

Officer Lora transported the defendant to the Hammond police station.

While at the police station, Eagan filed a battery complaint stating he had been with the victim at the lakefront and that she departed from the area with three men in a van. He further reported that these same three individuals in the van threw bottles at his car and attacked him, striking him in the face. Subsequently, Detectives Raskosky and Baughman arrived at the Hammond (Robertsdale) station and asked Eagan "if he would willingly come to the main station" to make a statement. Eagan agreed, and the detectives transported the petitioner to the Hammond police headquarters.

At 11:14 a.m. the morning of May 17, before Detectives Raskosky and Baughman questioned the petitioner about the stabbing of the woman, Detective Raskosky informed the petitioner of his constitutional rights, reading the following warning from a Hammond Police Department form entitled "Voluntary Appearance; Advice of Rights"*fn2

"Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for your, you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you've talked to a lawyer."

(Emphasis added). In his initial statement Eagan provided the detectives with an exculpatory recitation of his activities the night of the crime consistent with those recounted in his battery complaint. The petitioner admitted that he had been with the woman earlier in the evening and had engaged in sexual activity with her, but stated that she left him to join "three other guys" in a van. Again, Eagan asserted that these same men attacked him later that same morning.

Eagan subsequently was placed in custody in the "record lock-up" located in the basement of the Hammond police headquarters. Some 29 hours later on the following day, May 18th, Detectives Raskosky and Baughman interviewed the petitioner for a second time. Detective Baughman testified at trial that the petitioner was again fully advised of his rights at 4:21 p.m. by Detective Raskosky who read him a waiver of rights form,*fn3 which provided:

"1. Before making this statement, I was advised that I have the right to remain silent and that anything I might say may or will be used against me in a court of law.

2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.

3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.

4. That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation.

5. That if I cannot hire an attorney, one will be provided for me."

Eagan then read the waiver form aloud to the officers and Raskosky asked him whether he understood his rights. Eagan replied he did. Detective Baughman testified that Eagan appeared to understand his rights. Both detectives observed him sign the waiver of rights form at 4:23 p.m. An hour later, at 5:25 p.m., Eagan completed his second statement, giving a full confession concerning the stabbing of the woman. The following morning, May 19, Eagan led Officers Raskosky, Baughman and Myszak to the area along the Lake Michigan shoreline where the police recovered the knife used in the stabbing of the victim as well as several items of her clothing which Eagan had previously discarded. At the state trial, the court received Eagan's two statements and also the knife and clothing the police had recovered, over the petitioner's objection. The jury found the petitioner guilty of attempted murder but acquitted him of rape; he was sentenced to a term of 35 years' imprisonment.

II.

In spite of the fact that Eagan initially (voluntarily) contacted the police and reported seeing a nude, dead body and in light of the record revealing that Eagan on at least two occasions waived his Miranda rights and confessed, the majority holds that the petitioner's initial Miranda warning was constitutionally defective and tainted his second waiver of rights "because of the misapprehension caused by the initial warning."*fn4 I disagree and would hold that the initial warning given Eagan was constitutionally sufficient. Further, I would overrule United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972), and United States v. Cassell, 452 F.2d 533 (7th Cir. 1971),*fn5 to the extent these cases hold otherwise and join Judge Pell in his rejection of "an overly technical application of the Miranda rule." Twomey, 467 F.2d at 1253 (Pell, J., dissenting).

In Twomey, the defendant, Williams, was given the following Miranda warning:

"Before we ask you any questions, it is our duty as police officers to advise you of your rights and to warn you of the ...


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