ass when I get him over in the jail;" and (iv) petitioner's statement that he would beat Wilson up when he got to the jail.
Miranda stands for the principle that no statements of an accused, made in a custodial setting, may be admitted unless the prosecution demonstrates that certain procedural safeguards were followed.
384 U.S. at 444. These prophylactic measures are required only when the suspect is in custody and is subject to interrogation. Id. ; see also Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980).
On October 28, 1977, during petitioner's trial, a Miranda hearing was held. The trial judge found that: (i) the petitioner's statements denying that he knew Phillips and Wilson were admissible; (ii) the petitioner's statement that he knew that Wilson would squeal was voluntary and made with full knowledge of his constitutional right to remain silent;
(iii) and that the remark made by the petitioner in the elevator was also voluntary and admissible. The petitioner's objection to the admissibility of his statement that he had been visiting his sister was overruled.
As noted above, petitioner was first questioned by Officer Micks after he was stopped at the intersection of Ellison Place and Madison Avenue. In response to Officer Micks' questions, the petitioner gave his name and address. He also indicated that he was coming from his sister Wanda Addison's house but he could not remember her address because she had recently moved to a new residence. Petitioner contends that these statements should not have been admitted at trial.
I need not reach the issue of whether Miranda warnings should have been issued prior to Officer Micks' questioning because I conclude that the admission of these statements did not prejudice the petitioner. Indeed, petitioner's testimony at trial corroborates the statements which he made to Officer Micks. Thus, I fail to see how the admission of the statements violated his Miranda rights.
The voluntariness of a statement is a legal issue requiring an independent legal determination by the federal court. Miller v. Fenton, 474 U.S. 104, 110, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985); Riddick v. Edminston, 894 F.2d 586, 589 (3d Cir. 1990). However, in a federal habeas action, a state trial judge's findings as to the subsidiary facts are presumptively correct under 28 U.S.C. § 2254(d). "Federal courts . . . [in habeas] proceedings must not disturb the findings of state courts unless the federal habeas court articulates some basis for disarming the presumption that they are correct and may be overcome only by convincing evidence." Smith v. Phillips, 455 U.S. 209, 218, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982) (citing Sumner v. Mata, 449 U.S. 539, 551, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981)).
At the petitioner's trial, the judge found that the petitioner did not invoke his right to remain silent until after he had already stated that he had been at his sister's house and that he did not know either of the suspects. No colorable grounds have been advanced to reject the state court's finding.
Petitioner contends that the police were required to reissue Miranda warnings before presenting Wilson and Phillips for identification and before advising him that Wilson gave a statement implicating him in the murder. He maintains that his statement was obtained in violation of Miranda and should have been excluded from evidence. Furthermore, he contends that the remark he made about Wilson in the elevator was obtained in violation of Miranda.
In Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 the Supreme Court addressed the meaning of the term "interrogation" under Miranda. The Court concluded that the:
Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
446 U.S. at 300-01. Generally, remarks made by the authorities concerning evidence which is unfavorable to the defendant is not characterized as interrogation. Such information is typically communicated "attendant to arrest and custody" in order to give the defendant an opportunity to make an informed intelligent waiver of a previously invoked right to remain silent. see Jenkins v. Bara, 663 F.Supp. 891, 895 (S.D.N.Y. 1987) (no compulsion on the part of the police where they turned up volume of police radio broadcast concerning the discovery of evidence in the vicinity where the suspect was arrested); United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976) cert. denied 429 U.S. 1099 (1977) (confession made while defendant was being transported to jail after agents recited the evidence they had obtained against him including his fingerprints on a ransom note, held to be admissible despite the defendant's demand to see an attorney).
In the instant case, the appellate court concluded that the police did not subject the petitioner to interrogation when they brought Wilson and Phillips into the room to identify him; "The police, as a normal incident to custody and arrest, had the right to have other witnesses, who, including those Simmons said he did not know, identify Simmons if they could." Simmons, op. at 40. Similarly, the court concluded that the police did not subject the petitioner to interrogation when they advised him that Wilson had given a statement which implicated the petitioner in the murder. Id. Thus, the court concluded that the petitioner's Miranda rights were not eviscerated.
I concur with the conclusion of the New Jersey Appellate Division that the conduct of the police did not rise to the level of interrogation. Although there may have been an element of compulsion present, it did not "reflect a measure of compulsion above and beyond that inherent in custody itself." see Innis, 446 U.S. at 300. Moreover, the unsolicited comment made by the petitioner in the elevator while being transported to another location was clearly a spontaneous utterance which was not the product of custodial interrogation. see United States v. Vasquez, 857 F.2d 857, 862 (1st Cir. 1988). Thus, the admission of petitioner's statements was not violative of his constitutional rights.
Furthermore, I conclude that any statements made by the petitioner were the product of a knowing, voluntary waiver of his Miranda rights. In Michigan v. Moseley, 423 U.S. 96, 107, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975) the Supreme Court stated that, pursuant to Miranda, interrogation must cease once the person in custody indicates his desire to remain silent. The Court observed, however, that Miranda does not explicitly prohibit resumption of further questioning. Consequently, the Court concluded that "The admissibility of statements obtained after the person in custody had decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was scrupulously honored." Id. at 104.
To determine the voluntariness of a confession, the court must consider the effect that the totality of circumstances has upon the will of the defendant. See Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The question in each case is whether the defendant's will was overborne when he confessed. See Miller v. Fenton, 796 F.2d 598 (3d Cir.1986) (citing Schneckloth, 412 U.S. at 225-26).
It is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect. see Miller v. Fenton, 796 F.2d at 650 (citing Haynes v. Washington, 373 U.S. 503, 514-15, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963)). For example, the interrogator may play on the suspect's sympathies or explain that honesty might be the best policy for the criminal who hopes for leniency from the state. See Miller v. Fenton, 796 F.2d at 605 (citing Rachlin v. United States, 723 F.2d 1373, 1378 (3d Cir. 1983)) These ploys may play a part in the suspect's decision to confess, but so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary. Thus, the question in this case is whether the petitioner was coerced or deprived of his ability to make an unconstrained decision to waive his Miranda rights.
I conclude that statements made by the defendant when he was; (i) confronted by Wilson and Phillips, (ii) confronted with Wilsons confession; and (iii) placed in an elevator with Wilson were not the product of compulsion or coercion on the part of the authorities. Petitioner's statements were made voluntarily and as such they were properly admitted into evidence at trial. See United States v. Hodge, 487 F.2d 945 (5th Cir.1973)(a voluntary waiver of Miranda took place where defendant made incriminating statements following an explanation by law enforcement officials of the charges and the evidence against him, after he had invoked his right to counsel); United States v. Davis, 527 F.2d 1110 (9th Cir. 1975) (defendant's confession, obtained almost immediately after he indicated his desire to remain silent was admissible despite the conduct of FBI agents who asked if defendant wished to reconsider his position and showed the defendant a bank surveillance photograph of himself participating in the robbery).
II. Use of the Reconstructed Record
Petitioner contends that the reconstructed portions of the pre-trial record do not adequately address two issues: (i) whetter the prosecutor used peremptory challenges to improperly exclude blacks from the jury; and (ii) whether the jury had been tainted by pretrial publicity. Petitioner claims that, as a result of the inadequacy of the record, he was unable to argue those issues effectively on appeal. Petitioner contends that the state's failure to provide him with a verbatim transcript of the voir dire examination is a denial of his due process right to a meaningful appeal.
It is well established that the absence of a verbatim transcript is not a defect of constitutional magnitude where an adequate alternative is provided:
Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript.