914 F2d 262 Kenneth Wayne Hovland v. James Blodgett

914 F.2d 262

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Kenneth Wayne HOVLAND, Petitioner-Appellant,
v.
James BLODGETT,* Respondent-Appellee.

No. 89-35624.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 10, 1990.
Decided Sept. 17, 1990.

Before EUGENE A. WRIGHT, SCHROEDER and WILLIAM A. NORRIS, Circuit Judges.

1

MEMORANDUM**

2

Hovland appeals the district court's denial of his petition for a writ of habeas corpus. He challenges his aggravated first degree murder conviction for which he was sentenced to life in prison without possibility of parole. He contends that his murder confession should have been suppressed because before confessing he had invoked and was denied his right to counsel. We affirm the denial of habeas relief.

FACTS AND PRIOR PROCEEDINGS

3

Three officers from the Snohomish County Sheriff's Office interviewed Hovland in the Okanogan County Jail, where he was incarcerated on an unrelated charge. They suspected him of murdering a 16-year-old girl. The officers read him his Miranda rights and, after indicating he understood them, he signed a waiver. Hovland does not appeal the finding of an initial valid waiver of Miranda rights.

4

The officers then asked Hovland about his actions the morning of the girl's murder. When the supervising officer, Nelson, thought Hovland was about to confess, he said perhaps they "had reached the point in time when he might be thinking about getting an attorney." Hovland replied, "I think I have reached the point where I should be thinking about an attorney."

5

Officer Nelson then left the room to learn how to obtain appointed counsel. While Nelson was out of the room, the other two officers discussed fishing, camping and apple picking with Hovland. When Nelson returned several minutes later, he told Hovland that "the Judge had authorized him to open the phone book, call any local attorney and ask him to be present at no expense to Mr. Hovland."1 He then pointed to the telephone book and telephone within Hovland's reach. Hovland indicated he understood but took no further action. The officers resumed questioning, and shortly thereafter Hovland confessed to the murder.

6

The trial court denied Hovland's motion to suppress his confession. The Washington Court of Appeals affirmed, finding that Hovland had not requested an attorney. The Supreme Court of Washington denied his petition for appeal.2 The United States District Court for the Western District of Washington denied Hovland's habeas petition, holding that he had made an equivocal request for an attorney which the officers handled properly.

DISCUSSION

7

We review de novo a district court's decision to deny a petition for writ of habeas corpus. Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir.1987), cert. denied, 109 S.Ct. 380 (1988).

8

Hovland argues that his statement, "I think I have reached the point where I should be thinking about an attorney" was an equivocal request for counsel. If the statement was not a request for counsel, the officers were not required to take any action. Bruni v. Lewis, 847 F.2d 561, 564 (9th Cir.), cert. denied, 109 S.Ct. 403 (1988). For the purposes of this discussion, we shall assume that this was an equivocal request.

9

In this circuit, questioning after an equivocal request for counsel must cease except for inquiries to clarify the suspect's desire for counsel. Robtoy v. Kincheloe, 871 F.2d 1478, 1482 (9th Cir.1989), cert. denied sub nom. Robtoy v. Callahan, 110 S.Ct. 1483 (1990) (citing United States v. Fouche, 833 F.2d 1284, 1287 (9th Cir.1987), cert. denied, 108 S.Ct. 1756 (1988)). The issue on appeal is whether Hovland's subsequent conduct provided the necessary clarification of his equivocal request and entitled the officers to resume their interrogation.

10

The critical factor in assessing the officers' actions is "whether a review of the whole event discloses that the interviewing agent has impinged on the exercise of the suspect's continuing option to cut off the interview."3 Robtoy, 871 F.2d at 1482 (citing Fouche, 833 F.2d at 1287 (quoting Nash v. Estelle, 597 F.2d 513, 518 (5th Cir.) (en banc), cert. denied, 444 U.S. 981 (1979)).

11

Examination of all circumstances of the interrogation reveals that the officers did not impinge on Hovland's option to terminate the interview. Robtoy, 871 F.2d at 1482. First, the record reveals no effort to coerce or intimidate him or prevent him from seeking counsel or remaining silent. Second, he had knowingly waived his Miranda rights and had commented on his past experience with the judicial system so there is reason to believe he knew how to request counsel.

12

Third, Nelson told Hovland he could call an attorney to represent him at government expense and then pointed to the nearby telephone and telephone book. Hovland indicated he understood and then took no steps to call an attorney. Finally, interrogation about the murder ceased until the officers were satisfied Hovland did not wish to consult counsel.

13

This case might present a close question because, unlike in Fouche, the officers did not explicitly question the suspect as to whether he still wished to waive his right to counsel. See Fouche, 833 F.2d at 1286. Nevertheless, review of all the circumstances demonstrates that Hovland clarified his desire not to be represented by counsel at that time.

CONCLUSION

14

In summary, if Hovland's statements did not constitute a request for counsel, the police were not required to take any action. If the statements did constitute a request for counsel, it was an equivocal request which the police handled properly. The district court's denial of the writ of habeas corpus is AFFIRMED.

*

James Blodgett has replaced Lawrence Kincheloe

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

Officer Nelson had contacted a judge after he learned that public defenders were unavailable

2

Hovland has exhausted his state court remedies as required by 28 U.S.C. Sec. 2254

3

Hovland urges the panel to adopt the "per se" rule applicable to unequivocal requests for counsel. This requires that, when a suspect unequivocally requests an attorney, all questioning must cease until counsel is available unless the suspect initiates communication with the officers. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1980). The panel may not overturn current Ninth Circuit precedent that applies to equivocal requests. LeVick v. Skaggs Companies, Inc., 701 F.2d 777, 778 (9th Cir.1983) (only an en banc panel or a Supreme Court decision can overrule circuit precedent)