US Supreme Court Briefs

No. 99-1702

In the Supreme Court of the United States

 

TEXAS, PETITIONER

v.

RAYMOND LEVI COBB

 

ON WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS OF TEXAS

 

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

 

SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
LISA SCHIAVO BLATT
Assistant to the Solicitor
General
DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

The United States will address the following question:

Whether the Sixth Amendment rule announced in Michigan v. Jackson, 475U.S. 625 (1986), which bars an officer from approaching a defendant to interrogatehim on a charged offense when he has invoked the right to counsel, alsoapplies to interrogation on a factually related but uncharged offense.

 

In the Supreme Court of the United States

 

No. 99-1702

TEXAS, PETITIONER

v.

RAYMOND LEVI COBB

 

ON WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS OF TEXAS

 

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

 

INTEREST OF THE UNITED STATES

The question in this case is whether the police violated respondent'sSixth Amendment rights under Michigan v. Jackson, 475 U.S. 625 (1986), byeliciting incriminating statements about respondent's murder of two individualsafter respondent had been charged with the burglary of the individuals'home and was represented by counsel on that charge. The Court's resolutionof that question will affect the conduct of interrogations by federal lawenforcement officers and the admissibility in federal prosecutions of voluntarystatements taken in comparable circumstances.

STATEMENT

1. On December 27, 1993, respondent stabbed and killed Margaret Owingswhile burglarizing her home. Respondent carried Margaret Owings' body toa wooded area near the home. Respondent then went back to the Owings' residencewhere he saw Margaret Owings' sixteen-month-old daughter, Kori Rae Owings,sleeping in her bed. Respondent carried the child, who was still sleeping,to the woods where he had left her mother's body. After retrieving a shovelfrom his residence, which was located across the street from the Owings'residence, respondent returned to the woods where he began digging a hole.The child subsequently awoke, started to approach her mother, and fell intothe hole. Respondent buried Margaret Owings together with her daughter,who thereafter died of suffocation. Pet. App. A3, A4-A5, A9-A10. Respondentreturned to the Owings' residence and removed a stereo, VCR, videotapes,and a bottle of tequila. Pet. 4-5.

Later that day, Margaret Owings' husband, Lindsey Owings, notified theWalker County, Texas, Sheriff's Office that his wife and daughter were missingand that some of his property had been stolen from his home. In February1994, the sheriff's office received an anonymous tip that respondent mighthave been involved in the burglary. Walker County investigators questionedrespondent about the burglary, but respondent denied any involvement. OnJuly 15, 1993, respondent, while under arrest on unrelated charges, executeda written statement confessing to the burglary, but he denied any knowledgeof or involvement in the disappearances of Margaret and Kori Rae Owings.A Walker County grand jury subsequently indicted respondent for the burglary.Pet. App. A4.

In August 1994, an attorney, Hal Ridley, was appointed to represent respondenton the burglary charge.1 Shortly thereafter, Walker County investigatorssought and obtained Ridley's permission to question respondent about thedisappearances of Margaret and Kori Rae Owings. Investigators then questionedrespondent, who denied any involvement in the disappearances. On September13, 1995, investigators, after consulting with Ridley, again questionedrespondent, who maintained that he was not involved in the disappearances.Pet. App. A4-A5.

Thereafter, respondent, who was free on bail with respect to the burglarycharge, began residing with his father in Odessa, Texas. On November 11,1995, respondent's father telephoned the Walker County Sheriff's Officeand reported that respondent had confessed to him that respondent had murderedMargaret Owings in the course of burglarizing her home. Walker County investigatorsobtained an arrest warrant, which they sent by telecopier to Odessa policefor execution. The Walker County investigators did not inform the Odessapolice that respondent was represented by counsel in connection with theburglary charge. Pet. App. A5.

On November 12, 1995, Odessa police arrested respondent, who waived hisrights under Miranda v. Arizona, 384 U.S. 436 (1966), and gave police awritten confession to the murders of both Margaret and Kori Rae Owings.Pet. App. A5. Respondent thereafter led investigators to the location wherehe had buried the victims' bodies. Pet. 6.

2. Respondent was charged with the capital offense of intentionally killingtwo persons in the same criminal transaction, in violation of Texas PenalCode Ann. § 19.03(a)(7)(A) (West 1994).2 Before trial, respondent movedto suppress his murder confession on the ground that it was obtained bythe Odessa police in violation of his Sixth Amendment right to counsel.After a hearing, the trial court denied the motion to suppress. Pet. App.D1-D7. The court concluded that respondent had waived his Miranda rights,voluntarily confessed to the murders, and led police to the area where hehad buried Margaret and Kori Rae Owings. Id. at D3, D4. The court also observedthat, although in August 1994 an attorney had been appointed to representrespondent on the burglary charge, that attorney conceded at the suppressionhearing that "he was not [respondent's] attorney on the Capital Murder"charge when respondent confessed to the murders. Id. at D6.

3. By a 6-3 vote, the Court of Criminal Appeals of Texas reversed respondent'sconviction. Pet. App. A1-A27. The court observed that the right to counselguaranteed by the Sixth Amendment "attaches at the initiation of adversarialproceedings." Id. at A6. Under this Court's decision in Michigan v.Jackson, 475 U.S. 625, 636 (1986), the court noted, "once the rightto counsel has attached and has been invoked, any subsequent waiver [ofthe right to counsel] during police-initiated interrogation is ineffectiveunless counsel has first given his permission for the interrogation."Pet. App. A6. The court also found "relevant to this case

* * * the Sixth Amendment rule that once the right to counsel attachesto the offenses charged, it also attaches to any other offense that is veryclosely related factually to the offense charged." Ibid.

Applying those principles, the court held that "[o]nce [respondent]was indicted for the Owings burglary, his Sixth Amendment right to counselattached to that offense and to the capital murder offense, which was factuallyinterwoven with the burglary." Pet. App. A7. The court further heldthat respondent asserted his right to counsel "by accepting Ridley'sappointment as his counsel." Ibid. The court therefore concluded that,"before the Odessa police could lawfully question [respondent] aboutthe disappearances of the Owings, they were under an obligation to contactRidley and get his permission." Ibid. Because police failed to takethose steps, the court ruled that the fruits of the interview, includingrespondent's written confession, were inadmissible in the prosecution'scase-in-chief. Ibid.

Three judges dissented. Pet. App. A8-A27. In their view, the officersreasonably viewed the conduct of respondent's attorney as indicating hisunqualified and continuing consent to the questioning of respondent as longas respondent did not object. Id. at A11-A16. They also expressed the viewthat respondent's acceptance of counsel was not an unequivocal assertionof his right to counsel sufficient to invoke the rule of Michigan v. Jackson.Id. at A21-A25.

SUMMARY OF ARGUMENT

A. The Sixth Amendment right to counsel is triggered by the initiationof adversary judicial proceedings in a criminal case. The rule of Michiganv. Jackson, 475 U.S. 625 (1986), protects a defendant whose Sixth Amendmentright has attached and been invoked. In order to safeguard the defendant'sability to deal with the State on a charged crime through counsel, the Courtconcluded that a defendant's waiver of his right to counsel in police-initiatedinterrogation is invalid. One requirement for the application of Michiganv. Jackson is that the accused have previously invoked his right to counsel.A question in this case is whether respondent's acceptance of counsel onhis burglary charge constituted the request for the help of a lawyer envisionedin Jackson. But whatever the answer to that question, the conclusive facthere is that the statements respondent gave were introduced, not on thethen-pending burglary charges, but on capital murder charges that had notbeen brought at the time of the interrogation. The Sixth Amendment rightto counsel therefore had not attached on the murder charges, and Michiganv. Jackson does not bar use of the statements.

B. In McNeil v. Wisconsin, 501 U.S. 171, 175 (1991), this Court madeclear that the Sixth Amendment right to counsel is "offense specific";thus, "its Michigan v. Jackson effect of invalidating subsequent waiversin police-initiated interviews is [also] offense specific." The propertest to apply to the "offense specific" Sixth Amendment rightis the same-elements test of Blockburger v. United States, 284 U.S. 299(1932), that the Court applies in Fifth Amendment Double Jeopardy analysis.That test asks whether each offense contains an element that the other doesnot. If each does, they are not the same offense. The test yields predictableresults and can be readily applied to determine which offenses are the subjectof a pending prosecution (for which the right to counsel has attached) andwhich are not.

C. An extension of the rule of Michigan v. Jackson to uncharged, butclosely factually related offenses, is not justified. There is no reasonto hold that the offenses involved in a "criminal prosecution[]"under the Sixth Amendment embrace uncharged offenses that have differentelements. The purpose of the Sixth Amendment is to ensure that the defendant,in responding to formal accusations that have been brought in court, hasthe assistance of counsel to guide him through the intricacies of the criminallegal process. But that purpose does not extend to uncharged crimes thatmay be under investigation, even if they are factually related to the chargedcrimes. As to those offenses, the Sixth Amendment right has not even attached.The suspect is thus as capable as any other suspect of making a knowingand voluntary decision whether to assert his Fifth Amendment rights to silenceand counsel under Miranda v. Arizona, 384 U.S. 436 (1966), or alternatively,to speak to law enforcement unaided.

D. This Court's decisions in Brewer v. Williams, 430 U.S. 387 (1977),and Maine v. Moulton, 474 U.S. 159 (1985), do not support the extensionof Michigan v. Jackson to factually related crimes. In Williams and Moulton,the Court did reverse convictions because, after Sixth Amendment rightshad been invoked on certain crimes, statements were improperly elicitedon then-uncharged crimes. But whether the Sixth Amendment right had "attached"on those uncharged offenses when the statements were elicited was neitherbriefed nor argued, and it was not mentioned in either case. Those decisionsthus do not control the question that now is squarely presented. And developmentssince that time-including the "offense specific" interpretationof the Sixth Amendment in McNeil and the adoption of an "elements"rather than a "same conduct" test under the Double Jeopardy Clause-underminewhatever precedential force Williams and Moulton might otherwise have hadon the issue.

E. Finally, extension of Michigan v. Jackson to "factually related"but uncharged crimes would impose unjustified costs on society. Not onlywould such a test defy consistent and predictable application, but it wouldalso result in the loss of some voluntary confessions obtained after compliancewith the Miranda safeguards. A rule that suppresses such statements requiresa substantial justification. Such a rule was found justified in Michiganv. Jackson to preserve the right to counsel once formal charges have beenbrought. But there is no similar justification when the State has neitherformally charged a suspect with the offense about which he is asked norattempted to use the suspect's incriminating statements in prosecuting thesuspect on a charged offense. Extension of the prophylaxis of Michigan v.Jackson to uncharged offenses is thus unwarranted.

ARGUMENT

MICHIGAN v. JACKSON DOES NOT BAR THE ADMISSION OF RESPONDENT'S CONFESSIONTO THE THEN-UNCHARGED OFFENSE OF CAPITAL MURDER

A. Respondent's Sixth Amendment Right To Counsel Had Attached On TheOffense Of Burglary

The Sixth Amendment guarantees that "[i]n all criminal prosecutions,the accused shall enjoy the right * * * to have the Assistance of Counselfor his defence." U.S. Const. Amend. VI. As the text of the Sixth Amendmentitself suggests, the right to counsel "does not attach until a prosecutionis commenced, that is, at or after the initiation of adversary judicialcriminal proceedings-whether by way of formal charge, preliminary hearing,indictment, information, or arraignment." McNeil v. Wisconsin, 501U.S. 171, 175 (1991) (internal quotations marks and citation omitted); accordMoran v. Burbine, 475 U.S. 412, 428 (1986); United States v. Gouveia, 467U.S. 180, 188 (1984); Brewer v. Williams, 430 U.S. 387, 398 (1977); Kirbyv. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion).

In Michigan v. Jackson, this Court established a prophylactic rule underthe Sixth Amendment that, "if police initiate interrogation after adefendant's assertion, at an arraignment or similar proceeding, of his rightto counsel, any waiver of the defendant's right to counsel for that police-initiatedinterrogation is invalid." 475 U.S. at 636; see Michigan v. Harvey,494 U.S. 344, 345 (1990). The Court observed that it previously had heldin Edwards v. Arizona, 451 U.S. 477 (1981), that, under the Fifth Amendment'sSelf-Incrimination Clause, "an accused person in custody who has 'expressedhis desire to deal with the police only through counsel, is not subjectto further interrogation by the authorities until counsel has been madeavailable to him, unless the accused himself initiates further communication,exchanges, or conversations with the police.'" 475 U.S. at 626 (quotingEdwards, 451 U.S. at 484-485). The Court in Jackson concluded that, because"the reasons for prohibiting the interrogation of an uncounseled prisonerwho has asked for the help of a lawyer are even stronger after he has beenformally charged with an offense than before[,] * * * the Sixth Amendmentright to counsel at a postarraignment interrogation requires at least asmuch protection as the Fifth Amendment right to counsel at any custodialinterrogation." Id. at 631, 632. If a defendant requests a lawyer withrespect to a pending charge, the Court held, it would "presume thatthe defendant requests the lawyer's services at every critical stage ofthe prosecution," including police interrogation. Id. at 633.

The Michigan v. Jackson rule applies only when an accused invokes orasserts his Sixth Amendment right to counsel. In Patterson v. Illinois,487 U.S. 285, 290 (1988), the Court declined to apply Michigan v. Jacksonto suppress incriminating statements made by an accused who had been indictedand was in custody on murder charges, but who "at no time sought toexercise his right to have counsel present." The Court explained thatits "decision in Jackson * * * turned on the fact that the accused'ha[d] asked for the help of a lawyer' in dealing with the police"and that "[p]reserving the integrity of an accused's choice to communicatewith police only through counsel is the essence of Edwards and its progeny-notbarring an accused from making an initial election as to whether he willface the State's officers during questioning with the aid of counsel, orgo it alone." Id. at 291 (quoting Jackson, 475 U.S. at 631). The Courtin Patterson noted, however, that it was "significan[t] that petitionerhad not retained, or accepted by appointment, a lawyer to represent himat the time he was questioned by authorities," explaining that "[o]ncean accused has a lawyer, a distinct set of constitutional safeguards aimedat preserving the sanctity of the attorney-client relationship takes effect."487 U.S. at 290 n.3 (citing Maine v. Moulton, 474 U.S. 159, 176 (1985)).

In this case, when respondent was formally charged with the offense ofburglary, his Sixth Amendment right to counsel attached with respect tothat offense. See McNeil, 501 U.S. at 175. The first question presentedby the petition (Pet. i) is whether respondent invoked the protections ofMichigan v. Jackson by accepting the appointment of counsel. Regardlessof the resolution of that issue, however, Michigan v. Jackson did not barthe admission of respondent's statements. A critical fact is that respondentwas not charged with the murders at the time of his interrogation. The statecourt therefore erred, as a threshold matter, in holding that the attachmentof respondent's Sixth Amendment right to counsel with respect to the burglaryoffense extended as well to the then-uncharged offense of capital murder.

B. Respondent Had No Right To Counsel On The Uncharged Offense Of CapitalMurder When He Confessed To That Offense

1. In McNeil v. Wisconsin, 501 U.S. at 175, this Court held that theSixth Amendment right to counsel is "offense specific." That righttherefore "cannot be invoked once for all future prosecutions, forit does not attach until a prosecution is commenced, that is, at or afterthe initiation of adversary judicial criminal proceedings." Ibid. (internalquotation marks and citation omitted). The Court in McNeil also stated that"just as the [Sixth Amendment] right is offense specific, so also itsMichigan v. Jackson effect of invalidating subsequent waivers in police-initiatedinterviews is offense specific." Ibid.

In McNeil, those principles led the Court to hold that officers did notviolate the defendant's Sixth Amendment rights when they questioned himabout uncharged offenses of murder, attempted murder, and armed burglarywhile he was in custody and under indictment for armed robbery. 501 U.S.at 175-176. The Court explained that, "[b]ecause petitioner providedthe statements at issue here before his Sixth Amendment right to counselwith respect to the [uncharged] offenses had been (or even could have been)invoked, that right poses no bar to the admission of the statements in thiscase." Id. at 176 (emphasis omitted).

Earlier, in Maine v. Moulton, 474 U.S. at 180 n.16, the Court made clearthat, where the government used an undercover agent to investigate the ongoingor future commission of crimes by an indicted defendant, "[i]ncriminatingstatements pertaining to other crimes, as to which the Sixth Amendment hasnot yet attached, are, of course, admissible at trial of those offenses."That holding necessarily entails the proposition that the Sixth Amendmentprotections on an indicted offense do not extend to all other crimes bythe same defendant. See also Moran v. Burbine, 475 U.S. at 431 (interpretingMoulton to hold that "evidence concerning the crime for which the defendanthad not been indicted * * * would be admissible at a trial limited to thosecharges"); Kuhlmann v. Wilson, 477 U.S. 436, 458 n.21 (1986) (same);cf. Massiah v. United States, 377 U.S. 201, 206-207 (1964) (proper for governmentto continue investigation of suspected criminal activities of a defendant,even though the defendant already had been indicted and had retained counselfor pending charges); accord Hoffa v. United States, 385 U.S. 293, 308 (1966).The rationale for the offense-specific rule under the Sixth Amendment iswell-settled: "to exclude evidence pertaining to charges as to whichthe Sixth Amendment right to counsel had not attached at the time the evidencewas obtained, simply because other charges were pending at that time, wouldunnecessarily frustrate the public's interest in the investigation of criminalactivities." Maine v. Moulton, 474 U.S. at 180.

2. Those principles dictate the conclusion that respondent's Sixth Amendmentright to counsel had not attached with respect to the offense of capitalmurder when he confessed to that crime on November 12, 1995. At that time,although the State had charged respondent with burglary, the State had notcharged him with capital murder or otherwise initiated formal adversaryproceedings with respect to that offense. Thus, unless capital murder andburglary are the same "offense" for purposes of the Sixth Amendment,the Sixth Amendment and its protections under Michigan v. Jackson posedno bar to the admission of respondent's voluntary confession to the murdersat his murder trial.

This Court has not defined what constitutes an "offense" forpurposes of the Sixth Amendment. The Court's precedents firmly establish,however, that the question whether two factually related crimes constitutethe same "offense" under the Fifth Amendment's Double JeopardyClause is determined by applying the "same elements" test setforth in Blockburger v. United States, 284 U.S. 299, 304 (1932). See Rutledgev. United States, 517 U.S. 292, 297 (1996); United States v. Dixon, 509U.S. 688 (1993); cf. Garrett v. United States, 471 U.S. 773, 779, 790 (1985).If "the same act or transaction constitutes a violation of two distinctstatutory provisions, the test to be applied to determine whether thereare two offenses or only one, is whether each provision requires proof ofa fact which the other does not." Blockburger, 284 U.S. at 304. "Thistest emphasizes the elements of the two crimes. 'If each requires proofof a fact that the other does not, the Blockburger test is satisfied, notwithstandinga substantial overlap in the proof offered to establish the crimes.'"Brown v. Ohio, 432 U.S. 161, 166 (1977) (quoting Iannelli v. United States,420 U.S. 770, 785 n. 17 (1975)).

While the Sixth Amendment refers to "criminal prosections,"and the Double Jeopardy Clause to the "same offence," a singletest should logically apply in both settings to determine whether an unchargedoffense constitutes the same crime as the offense under indictment. TheBlockburger test, moreover, is familiar to the courts and creates a bright-linerule that is easily administrable by judges, prosecutors, and law enforcementofficers. Because it turns on the elements of the offenses charged in theindictment, it is of particular value to law enforcement officers who mustdecide at the outset of an investigation whether they may quesion an indictedsuspect, after he has obtained counsel, about uncharged offenses.

Under Blockburger's same elements test, the offenses of burglary andcapital murder constitute separate offenses. To establish the crime of burglaryunder Texas Penal Code Ann. § 30.02(a)(1) (West 1994), the State mustprove that a defendant entered a habitation, without the effective consentof the owner, with the intent to commit a felony or theft. By contrast,the offense of capital murder for the killing of two persons in a singlecriminal transaction under Texas Penal Code Ann. § 19.03(a)(7)(A) (West1994) requires proof that the defendant committed murder by intentionallyor knowingly causing the death of more than one individual during "acontinuous and uninterrupted chain of conduct occurring over a very shortperiod of time * * * in a rapid sequence of unbroken events." Jacksonv. State, 17 S.W.3d 664, 669 (Tex. Crim. App. 2000) (quoting Rios v. State,846 S.W.2d 310, 311-312 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1051(1993)).3 Because burglary and capital murder each "require[] proofof a fact which the other does not," Blockburger, 284 U.S. at 304,the two crimes are distinct offenses. Respondent's Sixth Amendment rightto counsel with respect to the burglary charge therefore did not carry overto the capital murder charge, which had not been brought when respondentconfessed to the murder.

C. The Sixth Amendment's Purposes Do Not Support Extension Of Michiganv. Jackson To An Uncharged Offense That Is Factually Related To A ChargedOffense

1. In holding that "[o]nce [respondent] was indicted for the Owingsburglary, his Sixth Amendment right to counsel attached * * * to the capitalmurder offense," Pet. App. A7, the state court relied (id. at A6-A7)on the decisions of lower courts that have concluded that there is an "exception"to the Sixth Amendment's offense-specific rule when police question a suspectabout uncharged offenses that are "closely related" to or "inextricablyintertwined" with the pending charges for which the defendant has invokedhis Sixth Amendment right to counsel. See, e.g., United States v. Covarrubias,179 F.3d 1219 (9th Cir. 1999); United States v. Arnold, 106 F.3d 37, 40-41(3d Cir. 1997); see also United States v. Doherty, 126 F.3d 769, 776 (6thCir. 1997) (collecting federal and state cases), cert. denied, 524 U.S.917 (1998). In applying that exception, courts have examined the conduct,time, place, motive, and victim with respect to an uncharged offense todetermine whether it "arises from the same acts and factual predicateson which the pending charges were based." Arnold, 106 F.3d at 41; accordWhittlesey v. Maryland, 665 A.2d 223, 234 (Md. 1995), cert. denied, 516U.S. 1148 (1996).

In this case, respondent's burglary and capital murder offenses did occuron the same day. But there was only a partial overlap in the place of thecrimes and the victims. The burglary and the murder of one of the victims,Margaret Owings, occurred in the Owings' residence, while the murder ofKori Rae Owings occurred in the nearby woods. And the victims of the murderswere Margaret and Kori Rae Owings, while the victims of the burglary wereMargaret Owings and her husband, Lindsey Owings, who presumably owned theproperty taken from the residence. Pet. App. A3-A4, A9-A10. Importantly,respondent's conduct constituting each offense was distinct. Respondentcommitted burglary when he entered the Owings' residence with the intentto remove the stereo and other property from the residence. Texas PenalCode Ann. § 30.02(a)(1) (West 1994). Respondent committed capital murderwhen he stabbed Margaret Owings in her home, carried her body into the woods,returned to her home to retrieve her sixteen-month-old daughter, and buriedthe child alive along with her mother in the woods. Texas Penal Code Ann.§ 19.03(a)(7)(A) (West 1994). Finally, respondent's motives for thetwo crimes were different. Respondent committed the burglary offense inorder to obtain property from the Owings' residence. Respondent murderedMargaret and Kori Rae Owings because they witnessed the burglary. Br. inOpp. 14.4 On balance, the distinctions between the two offenses-differentconduct, different motive, and a lack of symmetry in the victims and location-should lead to the conclusion that respondent's burglary offense was not,as the court below held (Pet. App. A7), "factually interwoven"with respondent's capital murder offense.

2. Our fundamental submission, however, is that a multifactored approachof this character should be rejected. The Sixth Amendment's text and purposedo not justify barring police from questioning a suspect about an unchargedoffense simply because it is closely related factually to a charged offense.

Under the Sixth Amendment, an "accused" has the right to counselto assist in his defense of a "criminal prosecuion[]." Thus, onceany suspect is charged with an offense, the Sixth Amendment right to counselattaches with respect to that offense.5 See p. 8, supra. Assuming that theaccused thereafter invokes his right to counsel (see Patterson, supra),the Sixth Amendment as amplified by Michigan v. Jackson bars the policefrom initiating questioning concerning that offense. See McNeil v. Wisconsin,501 U.S. at 180; Maine v. Moulton, 474 U.S. at 180. With respect to uncharged,albeit closely related, offenses, however, the State has not initiated formaladversary proceedings, and thus there is no "prosecution" to whichthe right to counsel can attach. See United States v. Ash, 413 U.S. 300,321-322 (1973) (Stewart, J., concurring) ("The requirement that therebe a 'prosecution,' means that this constitutional 'right to counsel attachesonly at or after the time that adversary judicial proceedings have beeninitiated against [an accused.]") (quoting Kirby v. Illinois, 406 U.S.at 688 (plurality opinion)).

This Court has recognized that "[t]he purpose of the Sixth Amendmentcounsel guarantee * * * is to 'protect the unaided layman at critical confrontations'with his 'expert adversary,' the government, after 'the adverse positionsof government and defendant have solidified' with respect to a particularalleged crime." McNeil v. Wisconsin, 501 U.S. at 177-178 (bracketsomitted) (quoting Gouveia, 467 U.S. at 189); see also Arizona v. Roberson,486 U.S. 675, 685 (1988) (Sixth Amendment right to counsel "arisesfrom the fact that the suspect has been formally charged with a particularcrime and thus is facing a state apparatus that has been geared up to prosecutehim").6 Indeed, in Michigan v. Jackson, the Court emphasized the "significanceof the formal accusation, and the corresponding attachment of the SixthAmendment right to counsel," and acknowledged that the Amendment'spurpose is not triggered unless the State has accused an individual of committinga specific offense:

Given the plain language of the Amendment and its purpose of protectingthe unaided layman at critical confrontations with his adversary, our conclusionthat the right to counsel attaches at the initiation of adversary proceedings'is far from a mere formalism.' Kirby v. Illinois, 406 U.S., at 689. Itis only at that time 'that the government has committed itself to prosecute,and only then that the adverse positions of government and defendant havesolidified. It is then that a defendant finds himself faced with the prosecutorialforces of organized society, and immersed in the intricacies of substantiveand procedural criminal law.'

475 U.S. at 631 (quoting Gouveia, 467 U.S. at 189).

Absent the considerations present when a State has brought charges againsta suspect alleging a specific offense, the purposes of the Sixth Amendmentdo not support a rule that prevents the police from approaching a suspectwho can then "mak[e] an initial election as to whether he will facethe State's officers during questioning with the aid of counsel, or go italone." Patterson v. Illinois, 487 U.S. at 291; see also McNeil v.Wisconsin, 501 U.S. at 178 ("One might be quite willing to speak tothe police without counsel present concerning many matters, but not thematter under prosecution."); Michigan v. Harvey, 494 U.S. at 353 ("Althougha defendant may sometimes later regret his decision to speak with police,the Sixth Amendment does not disable a criminal defendant from exercisinghis free will."); Moran v. Burbine, 475 U.S. at 430 ("The SixthAmendment's intended function is not * * * to protect a suspect from theconsequences of his own candor.").

Moreover, if the suspect is in custody, the Fifth Amendment as interpretedby Miranda requires police to advise the suspect of his right to counsel,which the suspect may invoke at any time to cause the police to cease theirquestioning. As this Court in McNeil v. Wisconsin, explained:

If a suspect does not wish to communicate with the police except throughan attorney, he can simply tell them that when they give him the Mirandawarnings. There is not the remotest chance that he will feel "badgered"by their asking to talk to him without counsel present, since the subjectwill not be the charge on which he has already requested counsel's assistance(for in that event Jackson would preclude initiation of the interview) andhe will not have rejected uncounseled interrogation on any subject before(for in that event, Edwards would preclude initiation of the interview).

501 U.S. at 180. Thus, in the absence of any indication by the defendantthat he does not want to talk to police about an uncharged offense, evenone that is factually related to a pending charge, Michigan v. Jackson'sprophylactic rule should not be extended to exclude a defendant's voluntaryconfession to the uncharged offense.

D. This Court's Decisions Do Not Support A Sixth Amendment ExceptionFor Factually Related Offenses

Many lower courts have reasoned that an exception to the Sixth Amendment'soffense-specific rule for factually related crimes is supported by thisCourt's decisions in Brewer v. Williams, supra, and Maine v. Moulton, supra,in which the Court reversed convictions on charges that had not been broughtagainst the defendants in those cases at the time the incriminating statementsat issue were made. See, e.g., Covarrubias, 179 F.3d at 1223-1224; UnitedStates v. Melgar, 139 F.3d 1005, 1011-1014 (4th Cir. 1998); Doherty, 126F.3d at 776; Arnold, 106 F.3d at 40-41; United States v. Carpenter, 963F.2d 736, 740 (5th Cir.), cert. denied, 506 U.S. 927 (1992); People v. Clankie,530 N.E.2d 448, 462-463 (Ill. 1988).7

In Brewer, a defendant who had been formally charged with a child's abduction,and who had retained counsel with respect to that charge, was being transportedby police from the city where he had surrendered to the city where the abductionhad occurred. A detective traveling with the defendant elicited from thedefendant the location of the child's body by expressing the view that theparents were entitled to a "Christian burial" for their child.430 U.S. at 390-394. On habeas review of the defendant's conviction on murdercharges, the Court held that the police violated the defendant's Sixth Amendmentright to counsel when police questioned him outside the presence of hisattorneys, reasoning that the police "purposely sought during Williams'isolation from his lawyers to obtain as much incriminating information aspossible." Id. at 399. The Court further held that the defendant didnot intentionally relinquish his right to counsel, explaining that his "consistentreliance upon the advice of counsel in dealing with the authorities refutesany suggestion that he waived that right." Id. at 404.

In Moulton, the defendant was indicted on, and retained counsel withrespect to, four counts of theft of vehicles and automotive parts. Thereafter,a co-defendant, Colson, began cooperating with police and secretly tape-recordedconversations with the defendant in which the defendant made incriminatingstatements about the thefts as well as the defendant's plan to kill oneof the witnesses on the theft charges. 474 U.S. at 162-166. In holding that"the State violated Moulton's Sixth Amendment right when it arrangedto record conversations between Moulton and its undercover informant, Colson,"the Court reasoned that "[t]he police thus knew that Moulton wouldmake statements that he had a constitutional right not to make to theiragent prior to consulting with counsel." Id. at 176, 177. The Courtrejected the contention that the police conduct was excused because thepolice were investigating the defendant's attempts to kill the witness tothe theft charges. Id. at 178-180. The Court therefore affirmed the statecourt's decision, which had reversed the defendant's conviction for theftas well as a burglary offense that the State had charged after Colson begancooperating with the authorities. Id. at 167, 180.

Although the Court in Brewer and Moulton reversed convictions with respectto offenses that had not been charged at the time that the defendant madeincriminating statments (the offense of murder in Brewer and of burglaryin Moulton), neither decision actually addressed the issue of whether theSixth Amendment attaches to uncharged, factually related offenses, and itdoes not appear that the State raised the point in either case. The Courtin this case accordingly is "free to address the issue on the merits."Brecht v. Abrahamson, 507 U.S. 619, 631 (1993); see also United States v.Verdugo-Urquidez, 494 U.S. 259, 272 (1990) ("The Court often grantscertiorari to decide particular legal issues while assuming without decidingthe validity of antecedent propositions, * * * and such assumptions * ** are not binding in future cases that directly raise the questions.");United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (statingthat prior decision is not controlling when issue "was not there raisedin briefs or argument nor discussed in the opinion of the Court").Indeed, the Court in Moulton explicitly limited the reach of its decisionto the State's obtaining of incriminating evidence that pertained to pendingcharges to which the Sixth Amendment had attached at the time that the policeobtained the evidence. 474 U.S. at 180 n.16 ("Incriminating statementspertaining to other crimes, as to which the Sixth Amendment right has notyet attached, are, of course, admissible at a trial of those offenses.");see also Moran v. Burbine, 475 U.S. at 431 ("The Court [in Moulton]made clear * * * that the evidence concerning the crime for which the defendanthad not been indicted * * * would be admissible at a trial limited to thosecharges."). In suggesting that the State could have used the incriminatingstatements made by the defendant in a prosecution for the defendant's attemptto kill a witness to the charged theft offenses, 474 U.S. at 179-180 &n.16; see also id. at 185 (Burger, C.J., dissenting), the Court implicitlyrejected the principle that the Sixth Amendment attaches to all offensesthat have some factual relationship to the charged offense.8

In any event, both Brewer and Moulton predate McNeil, in which the Courtexpressly articulated the principle that the Sixth Amendment right to counselis "offense specific." 501 U.S. at 175. McNeil, of course, didinvolve factually unrelated offenses. The accused in that case had invokedhis Sixth Amendment right to counsel on a pending armed robbery charge,while the police questioned him about uncharged murder and burglary offensesthat had occurred in a town different from where armed robbery had occurred.Id. at 173-174. Nothing in the Court's opinion in McNeil, however, suggeststhat the Court's holding turned on the fact that the uncharged and chargedoffenses were factually unrelated, or even that the Court deemed it relevantthat the two offenses were unrelated. Rather, the Court relied solely onthe fact that the accused had "provided the statements at issue * ** before his Sixth Amendment right to counsel with respect to the [uncharged]offenses had been (or even could have been) invoked." Id. at 176 (emphasisomitted).

Similarly, both Brewer and Moulton were decided before Dixon, supra,which adopted Blockburger's "same elements" test to determinewhether a defendant is being subjected to successive punishment or prosecutionsfor the same criminal offense, in violation of the Fifth Amendment's DoubleJeopardy Clause. 509 U.S. at 703-704; cf. Garrett v. United States, supra.In reaching that conclusion, the Court in Dixon, 509 U.S. at 709, overruledits decision in Grady v. Corbin, 495 U.S. 508 (1990), which had held that,in addition to the same-elements test, a subsequent prosecution must satisfya "same-conduct" test that barred the State from bringing "asubsequent prosecution if, to establish an essential element of an offensecharged in that prosecution, the government w[ould] prove conduct that constitute[d]an offense for which the defendant ha[d] already been prosecuted."Id. at 510. The Court in Dixon concluded that it was "compellinglyclear" that Grady "was a mistake," reasoning that the same-conducttest "proved unstable in application" and was "a continuingsource of confusion." 509 U.S. at 709-711. Now that the Court has adoptedthe same-elements test in interpreting the word "offense" underthe Fifth Amendment, it would be highly anomalous for the Court to concludethat the Sixth Amendment's offense-specific rule is to be applied not onlyby examining the elements of the charged and uncharged offenses, but alsoby asking whether the offenses are "very closely related factually."Pet. App. A6.

E. An Exception For Factually Related Offenses Would Be Unworkable AndWould Impose Unjustified Costs

1. This Court's adverse experience with the "same conduct"test of Grady v. Corbin strongly counsels in favor of adopting the same-elementstest as the exclusive test to determine whether the Sixth Amendment permitspolice to question a suspect about uncharged offenses. Indeed, in two otherinstances, this Court has recognized the practical difficulties createdby rules-other than an elements test-for determining the requisite degreeof relationship between two offenses. In Schmuck v. United States, 489 U.S.705, 709 (1989), the Court rejected an "inherent relationship"test that would have required an offense to be submitted to jury as lesser-includedoffense when "two offenses relate[d] to the protection of the sameinterests and the proof of the greater offense [could] generally be expectedto require proof of the lesser offense." The Court explained that the"inherent relationship" test is "rife with the potentialfor confusion," while the elements test "promotes judicial economyby providing a clearer rule of decision." Id. at 720-721. Similarly,in Hopkins v. Reeves, 524 U.S. 88, 97 (1998), the Court held that the Constitutiondoes not require state trial courts to instruct juries in capital caseson a "'lesser related offense'-when no lesser included offense exists."Such an instruction, the Court reasoned, would be "unworkable,"because "there would be no basis for determining the offenses for whichinstructions are warranted." Ibid.

Like the tests rejected in Grady, Schmuck, and Reeves, the test appliedby the decision below-whether an uncharged offense is "factually interwovenwith" or "very closely related factually to the offense charged"(Pet. App. A6, A7)-is too imprecise and indeterminate to support a workablerule to govern police interrogations. The courts that have embraced an exceptionto the Sixth Amendment's offense-specific rule have looked to a wide varietyof factors, none of which is necessarily controlling in a given case. Asthe Ninth Circuit has explained:

Deciding whether the exception is applicable requires an examinationand comparison of all the facts and circumstances relating to the conductinvolved, including the identity of the persons involved (including thevictim, if any), and the timing, motive, and location of the crimes. Nosingle factor is ordinarily dispositive; nor need all of the factors favorapplication of the exception in order for the offenses to be deemed inextricablyintertwined or closely related.

Covarrubias, 179 F.3d at 1225.

Because of the sheer number of factors that bear on whether an unchargedoffense "is very closely related factually to the offense charged"(Pet. App. A6), it is difficult for courts to fashion a coherent body oflaw that achieves similar outcomes on comparable facts. Compare Arnold,106 F.3d at 42 (witness intimidation charge based on defendant's threatto a witness and attempted murder charge based on defendant's subsequenthiring of a hit man to kill the witness were "sufficiently relatedfor purposes of the Sixth Amendment exception" because the defendant's"central purpose and the intended results of both offenses were thesame"), with United States v. Cooper, 949 F.2d 737, 744 (5th Cir. 1991)(rejecting claim that state offense of aggravated robbery was inextricablyintertwined with federal offense of possession of an unregistered weapon,because two crimes "concern different conduct, although, efficientlyfor the governments, both prosecutions could use much of the same evidence"),cert. denied, 504 U.S. 975 (1992).

Furthermore, because law enforcement officials must determine in advancewhether they may question an accused about uncharged offenses, a Sixth Amendmentexception for "very closely related" crimes (Pet. App. A6) poseseven more difficulties in application than the same-conduct test that thisCourt in Dixon rejected under the Fifth Amendment. In many instances, officerswill not know, before approaching a suspect to ask about an unindicted crime,all of the factual circumstances that could render that crime "closelyrelated" to or "inextricably intertwined" with the chargedcrime. As a result, the question whether a court later will conclude thatthe right to counsel on the earlier crime extended to uncharged crimes willbe unpredictable. The approach embraced by the decision below thereforewould have the adverse practical effect of discouraging law enforcementofficers from approaching a suspect about criminal activity and therebywould "unnecessarily frustrate the public's interest in the investigationof criminal activities." McNeil, 501 U.S. at 176 (quoting Maine v.Moulton, 474 U.S. at 180); see also Massiah, 377 U.S. at 207. At a minimum,the exception to the offense-specific rule obscures the "clear, 'brightline'" that Michigan v. Jackson intended to create so that police mayconform their conduct accordingly. 475 U.S. at 634.

2. The intrusion on police investigatory work is not justified by anycountervailing considerations. "Cases involving Sixth Amendment deprivationsare subject to the general rule that remedies * * * should not unnecessarilyinfringe on competing interests." United States v. Morrison, 449 U.S.361, 364 (1981); see also Michigan v. Harvey, 494 U.S. at 346 (decliningto bar the State from using a statement taken in violation of Michigan v.Jackson to impeach a defendant's false or inconsistent testimony). In thiscase, extending the rule of Michigan v. Jackson to factually related unchargedoffenses would impose serious costs without providing a sufficient benefit.

The Court repeatedly has observed that the exclusion of a voluntary confessiondeprives the trier of fact of "what concededly is relevant evidence."Colorado v. Connelly, 479 U.S. 157, 166 (1986) (quoting United States v.Janis, 428 U.S. 433, 449 (1976)); see also United States v. Havens, 446U.S. 620, 627 (1980); United States v. Calandra, 414 U.S. 338 (1974). TheCourt likewise has made clear that "the ready ability to obtain uncoercedconfessions," far from being an evil, is an "unmitigated good."McNeil v. Wisconsin, 501 U.S. at 181. Thus, as the Court in Moran v. Burbineobserved: "Admissions of guilt are more than merely 'desirable' * ** they are essential to society's compelling interest in finding, convicting,and punishing those who violate the law." 475 U.S. at 426 (quotingUnited States v. Washington, 431 U.S. 181, 186 (1977)); see also Oregonv. Elstad,

470 U.S. 298, 305 (1985); id. at 312 (the loss of "highly probativeevidence of a voluntary confession" is a "high cost to legitimatelaw enforcement activity"); Schneckloth v. Bustamonte, 412 U.S. 218,225 (1973) (noting the "acknowledged need for police questioning asa tool for the effective enforcement of criminal laws"). Confessions,if obtained by fair methods that guarantee their reliability, result inthe resolution of many cases that could not otherwise be solved, ensureconfidence in the accuracy of criminal judgments, reduce the risk of prosecutingor convicting innocent persons, and alleviate burdens on all segments ofthe criminal justice system. Ibid. Extension of Michigan v. Jackson to unchargedoffenses, with the effect of excluding voluntary, reliable confessions fromevidence, therefore would require a substantial justification.

No such justification is present here. Courts have purported to justifythe application of Michigan v. Jackson to factually related offenses because"to hold otherwise would allow the government to circumvent the SixthAmendment right to counsel merely by charging a defendant with additionalrelated crimes after questioning him without counsel present." Arnold,106 F.3d at 41 (internal brackets and quotation marks omitted); see alsoMelgar, 139 F.3d at 1013; Doherty, 126 F.3d at 776; Pet. App. A7.9 Thatreasoning, however, presupposes that a suspect has a Sixth Amendment rightto counsel with respect to offenses for which he has not been formally charged.That conclusion is incorrect. See pp. 10-12, 16-19, supra. In any event,there is no indication in this case that the State attempted to circumventrespondent's right to counsel on the burglary offense when police questionedhim about the murder offenses on November 12, 1995, and later charged himwith the murder that he confessed to committing.10 Respondent at that timehad already confessed to the burglary, Pet. App. A4, and the State was notcontinuing its investigation of the charged burglary offense under the guiseof investigating uncharged crimes. Nor did the State use any of the incriminatingstatements that respondent made on November 12, 1995, to prosecute respondentfor the offense of burglary. Cf. note 2, supra. There is therefore no basisfor applying Michigan v. Jackson's prophylactic rule to exclude respondent'svoluntary confession to the capital murder offense.

CONCLUSION

The decision of the Court of Criminal Appeals of Texas should be reversed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
LISA SCHIAVO BLATT
Assistant to the Solicitor
General
DEBORAH WATSON
Attorney

AUGUST 2000

 

1 The attorney apparently was appointed by letter from the court beforerespondent's arraignment on the burglary charge. Pet. App. B1-B3, B5.

2 The indictment also charged respondent with the capital offense ofmurder in the course of committing a burglary, in violation of Texas PenalCode Ann. § 19.03(a)(2) (West 1994). Before trial, however, the Stateabandoned that charge and proceeded against respondent solely on the chargeof capital murder under Section 19.03(a)(7)(A). Pet. App. D4. The recorddoes not reflect whether respondent was ever tried in a separate proceedingfor burglary.

3 The fact that burglary and capital murder contain dissimilar elementsreflects the state legislature's view that the two crimes protect distinctsocietal interests. Whereas the offense of capital murder is proscribedunder Title 5 of the Texas Penal Code, entitled "Offenses Against ThePerson," burglary is proscribed under Title 7, entitled "OffensesAgainst Property." See generally 5 William Blackstone, Blackstone'sCommentaries 177, 220 (Tucker ed. 1996) (explaining that homicide is a offense"injurious to the persons of private subjects" while burglaryis an offense against the "habitations of individuals").

4 Respondent contends (Br. in Opp. 14) that the two crimes are inextricablyintertwined because the burglary "was the precipitating event whichresulted in the murders, and was the clear motive for these killings, i.e.,to escape detection for said burglary." But "committing a crimeis separate from an attempt to avoid responsibility for it." Whittlesey,665 A.2d at 236; see also Hendricks v. Vasquez, 974 F.2d 1099, 1104 (9thCir. 1992) (concluding murder charges and a charge of interstate flightto avoid prosecution for the murder charges "were separate incidents"and were "neither 'inextricably intertwined' * * * nor did they arisefrom the same conduct).

5 In felony cases, the Sixth Amendment entitles an indigent defendantto appointment of counsel in any felony case, while in a misdemeanor case,appointed counsel is required only if the charge results in a sentence ofimprisonment. See Nichols v. United States, 511 U.S. 738, 743 & n.9(1994).

6 By contrast, the Court has explained that the protection of the FifthAmendment's Self-Incrimination Clause is "broader" than the SixthAmendment right to counsel to the extent that the Fifth Amendment "relatesto interrogation regarding any suspected crime and attaches whether or notthe 'adversarial relationship' produced by a pending prosecution has yetarisen." McNeil v. Wisconsin, 501 U.S. at 178; see also Arizona v.Roberson, 486 U.S. at 685.

7 In finding that the Sixth Amendment right to counsel attaches withrespect to factually related uncharged offenses, the Sixth Circuit in Doherty,126 F.3d at 776, also relied on this Court's decision in Illinois v. Perkins,496 U.S. 292 (1990). In Perkins, the Court held that the Sixth Amendmentdid not bar the State's use of an undercover agent to question the defendantabout a murder while he was imprisoned on an unrelated battery conviction,reasoning that "[i]n the instant case no charges had been filed onthe subject of the interrogation, and our Sixth Amendment precedents arenot applicable." Id. at 299 (emphasis added). Focusing on the highlightedlanguage, the court in Doherty concluded that "it is the subject matterof the interrogation, and not any formal distinction in the elements ofthe underlying charges, that is relevant for Sixth Amendment purposes."126 F.3d at 776. The highlighted language is most naturally read, however,to mean that, had the defendant been formally charged with offenses relatingto the murder, and had the defendant invoked his right to counsel for thosecharges, the State would have been barred from seeking incriminating statementsabout those charges without the presence of counsel.

8 Brewer also involved the distinguishing feature that the police deliberatelycircumvented the defendant's Sixth Amendment right to counsel with respectto the abduction charge by breaching an agreement with the defendant's attorneysthat police would not question the defendant while they transported himacross the state. See 430 U.S. at 404-405; id. at 413-414 n.2 (Powell, J.,concurring) ("Here, we have a * * * case * * * in which the police deliberately took advantage of an inherentlycoercive setting in the absence of counsel, contrary to their express agreement.");id. at 415 (Stevens, J., concurring) ("If, in the long run, we areseriously concerned about the individual's effective representation by counsel,the State cannot be permitted to dishonor its promise to this lawyer.").

9 The state court also asserted that the exception "prevents thegovernment from circumventing the Sixth Amendment right to counsel merely* * * by charging predicate crimes with the purpose of questioning a suspecton an aggravated crime." Pet. App. A7 (internal quotation marks andcitation omitted). Under Blockburger's same-elements test, however, an aggravatedoffense would be the same offense as the predicate crime and the State thuswould be precluded under Michigan v. Jackson from approaching the suspectabout either offense.

10 Nor is there any reason to believe that the police believed that theyhad enough evidence to charge respondent with the offense of capital murderwhen he was indicted for burglary. Pet. App. B3-B4, B7. More generally,applying the rule of Michigan v. Jackson to closely related uncharged offensescannot be justified in order to prevent police from deliberately filingonly a subset of the provable charges in the hopes of circumventing an indicteddefendant's right to counsel. For purposes of bail and plea bargaining,officials typically have an incentive to bring the most serious chargesthat would support an indictment against an accused.

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