Grant-Chase v. Comm Dept. Corrections CV-96-332-JD 03/04/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cindy Grant-Chase

v. Civil No. 96-332-JD

Commissioner, Department of Corrections

O R D E R

Petitioner Cindy Grant-Chase brought this action under

, seeking a writ of habeas corpus. Before the court

is the motion for summary judgment of the respondent, Paul

Brodeuer, the Commissioner of the New Hampshire Department of

Corrections (document no. 11) .

Background

The facts relevant to the instant motion are not in dispute.

On December 8, 1990, the petitioner was involved in a struggle

with Joe Tegelaar that culminated in the petitioner shooting

Tegelaar several times. Tegelaar managed to call the police,

who, upon arriving, transported the petitioner and Tegelaar to a

local hospital, where both received treatment for their injuries.

The police considered the petitioner a suspect in the

shooting and an officer was present at all times while she

received treatment at the hospital. The officer did not initiate any questioning of the petitioner while the petitioner was

receiving treatment, and subsequently testified that he was "just

observing" her during this period. At some point during her

receipt of treatment the petitioner asked the officer about her

purse and stated that she wanted to talk to her lawyer.

Following the completion of medical testing, the petitioner

spoke on the telephone for five to ten minutes with her lawyer,

during which time the police officer remained present but could

not overhear the conversation. Upon the completion of the

conversation, a second police officer approached the petitioner

and informed her that he was aware that she had just spoken to

her lawyer. The officer asked the petitioner whether "it was all

right that [he] asked her some questions about the incident that

had happened." The petitioner informed the officer that her

attorney had advised her "to be as helpful as possible." The

officer then read the petitioner her Miranda rights, and the

petitioner executed a form indicating that she understood these

rights and agreed to waive them. Outside the presence of her

attorney, the petitioner subsequently gave the police two

statements containing incriminating information.

The petitioner unsuccessfully moved to suppress these

statements at trial and, in July 1992, was found guilty of

committing first degree assault and sentenced to seven to twenty

2 years in prison. The petitioner appealed her conviction to the

New Hampshire Supreme Court, claiming that her invocation of her

right to a lawyer at the hospital barred the police from

eliciting any statements from her outside the presence of her

attorney, and that suppression of these statements therefore was

warranted. On October 3, 1995, after granting the petitioner's

motion to reconsider a prior order in which it denied the

petitioner's appeal, the New Hampshire Supreme Court affirmed the

petitioner's conviction. See State v. Grant-Chase,

,

(1995), cert, denied, 116 S. C t . 1431 (1996).

The New Hampshire Supreme Court found that "the timing of

the defendant's assertion of her right to counsel control[led]

the outcome of [her] case."

,

. The

Court acknowledged that "the police must terminate interrogation

of an accused in custody if the accused reguests the assistance

of counsel,"

,

(citing Miranda v.

Arizona,

(1966)), that "once the accused

reguests counsel the police may not reinitiate guestioning until

counsel has been made available to the accused or the accused

initiates further communications,"

(citing

Edwards v. Arizona,

(1981)), and that "once

the accused has asserted the right to counsel, reinterrogation

may not begin until counsel is present whether or not the accused

3 has consulted with an attorney," id. at 267,

(citing Minnick v. Mississippi,

(1981)).

However, the Court found that the prophylactic rule articulated

in Edwards is not necessarily triggered by a defendant who,

although having been placed in custody and having made a reguest

for a lawyer, neither has been informed of her Miranda rights nor

has commenced being interrogated. In such a circumstance, the

Court reasoned, no irrebuttable presumption arises that the

reason the defendant asks for counsel is for the purpose of

having counsel present during interrogation. See

,

(noting that the reguest for counsel may also

concern an unrelated matter or may be motivated by a desire for

advice concerning how to handle imminent guestioning). Thus, the

court concluded that where a defendant's pre-interrogation, pre-

Miranda assertion of the right to counsel is ambiguous as to the

purpose for which counsel is sought, the police may "clarify the

ambiguity by asking if he or she wishes to go forward with the

interrogation."

,

(citing Davis v.

United States,

(1994)).1 Applying this rule.

'in Davis, the United States Supreme Court held that "law enforcement officers may continue guestioning until and unless the suspect clearly reguests an attorney."

. However, the court also opined that "when a suspect makes an ambiguous or eguivocal statement [concerning a reguest for an attorney] it will often be good police practice for the

4 the Court found that (1) the purpose of the petitioner's

invocation of her right to counsel was ambiguous; (2) the police

merely sought to clarify the purpose of the petitioner's reguest

and ascertained that the attorney had advised her to cooperate;

and (3) the police properly advised the petitioner of her Miranda

rights before obtaining any statements from her. Accordingly,

the court held that the petitioner's constitutional rights had

not been violated.2 The petitioner's habeas petition, filed on

June 21, 1996, challenges the Court's conclusion.

Discussion

(d) provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State

interviewing officers to clarify whether or not [the suspect] actually wants an attorney."

2Although the petitioner challenged her conviction under the state and federal constitutions, the New Hampshire Supreme Court concluded that the United States Constitution did not provide the petitioner with more protection than the New Hampshire Constitution. Accordingly, the Court decided the issue under state law, making no separate federal analysis and looking to federal law and the law of other jurisdictions "for their helpfulness in analyzing and deciding the State issue." Grant- Chase ,

,

. However, implicit in the Court's conclusion is a finding that the "ambiguity as to purpose" doctrine is consistent with Miranda and its progeny.

5 court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.3

The instant petition seeks relief solely on the ground that the

New Hampshire Supreme Court committed legal error in finding that

the prophylactic rule of Edwards is not invoked by a pre­

interrogation, pre-Miranda reguest for counsel that is ambiguous

as to the purpose behind the reguest. Thus, under the terms of

the statute, habeas relief will be warranted only if the New

Hampshire Supreme Court's decision resulted in a decision that is

contrary to, or involves an unreasonable application of, clearly

established federal law as determined by the United States

Supreme Court.

In the opinion of the court, the circumstances of this case

do not warrant such a conclusion. The United States Supreme

Court clearly has stated that the police may not begin

guestioning a defendant who is not accompanied by counsel if the

d

3Section 2254 was amended effective April 24, 1996. Although neither party has made reference to this amendment or its applicability to a petition filed after its effective date but seeking to overturn a conviction obtained prior thereto, the court is of the opinion that § 2254(d) (1), as amended, provides the applicable standard of review under these circumstances. See, e.g., Drinkard v. Johnson,

(5th Cir. 1996) .

6 efendant has previously unambiguously requested the assistance of

counsel during custodial interrogation. See, e.g., McNeil v.

Wisconsin,

(1991) (summarizing Miranda and

its progeny). However, the Court's precedents do not indicate

that the invocation of the right to counsel prior to the

commencement of interrogation necessarily triggers the

prophylactic rule created in Edwards. See

(invocation

of right to attorney requires "some statement that can reasonably

be construed to be an expression of a desire for an attorney in

dealing with custodial interrogation by the police"), 182 n .3

("We have in fact never held that a person can invoke his Miranda

rights anticipatorily, in a context other than 'custodial

interrogation' . . . ."). Although not necessarily foreclosed by

Supreme Court precedent, the rule proposed by the petitioner

would extend Edwards beyond what the Court has offered as the

justification for the rights guaranteed by Miranda -- "to

counteract the inherently compelling pressures of custodial

interrogation."

(quotation marks omitted); accord

Alston v. Redman,

(3d Cir. 1994) (pretrial

detainee who informed warden by letter that he would not talk to

attorney without counsel present not entitled to protection of

Edwards because invocation of counsel, although made while

detainee was in custody, was not made during interrogation or

7 while interrogation was impending), cert, denied, 115 S. C t . 1237

(1995); see also United States v. LaGrone,

(7th Cir.

1994) (invocation of Miranda rights only effective during

custodial interrogation or if custodial interrogation is

imminent).

The court recognizes that some courts have extended the

prophylactic rule of Edwards to invocations of counsel prior to

the commencement of interrogation or a defendant's receipt of his

or her Miranda rights. See, e.g.. United States v. Kelsey,

(10th Cir. 1991) (fact that defendant who had

been placed in handcuffs and told to stay on couch while police

searched his house asked to see his attorney before police began

to guestion him and before he was read his Miranda rights was

"irrelevant" under "governing cases", including McNeil; Edwards

reguired suppression of subseguent statements to police made

outside presence of counsel); State v. Torres,

,

(1992) (holding that "defendant could invoke

right to have counsel present during impending interrogation,

even though she was not being actively guestioned at the time she

inguired about an attorney"), cited in Grant-Chase,

,

; see also LaGrone,

(invocation of counsel effective if custodial interrogation has

begun or is imminent). The court also notes that McNeil, Alston,

8 and LaGrone all involved situations in which the defendant was

not facing imminent interrogation by the police. However, the

United States Supreme Court has not only never recognized the

extension of the Edwards rule to situations prior to the

commencement of custodial interrogation, but also has suggested

in McNeil that such an extension may not be warranted. See

McNeil,

n.3. For these reasons, the court cannot

conclude that the New Hampshire Supreme Court's decision not to

extend the Edwards rule is contrary to, or involves an

unreasonable application of, clearly established Supreme Court

precedent. Accordingly, the petition for a writ of habeas corpus

must be denied.

Conclusion

The respondent's motion for summary judgment (document no.

11) is granted. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

March 4, 1997

cc: Albert E. Scherr, Esguire John Paul Kacavas, Esguire

9