Nom v. Spencer

United States Court of Appeals
For the First Circuit

No. 02-2173

SAROURT NOM,

Petitioner, Appellant,

v.

LUIS SPENCER and THOMAS F. REILLY,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Daniel J. Johnedis for petitioner.
Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief, for
respondent.

July 29, 2003
 LIPEZ, Circuit Judge. This petition for habeas corpus

relief challenges the propriety of a question asked by a police

officer after the petitioner had unambiguously invoked his Fifth

Amendment right to counsel.

I.

On September 13, 1995, a Middlesex Superior Court jury

convicted the petitioner, Sarourt Nom ("Nom"), of the first degree

murder of his wife and unlawful possession of a firearm. The court

sentenced Nom to life in prison. On November 18, 1997, the

Massachusetts Supreme Judicial Court ("SJC") affirmed the

convictions. After exhausting his further state court appeals,1

Nom petitioned the federal district court for habeas corpus relief

under 28 U.S.C. § 2254, claiming (1) that his Fifth Amendment right

to counsel was violated when, after a prior invocation of his right

to counsel, a police officer asked Nom why he had requested

counsel, and (2) that his Sixth Amendment right to effective

assistance of counsel was violated by trial counsel's failure to

object to the trial judge's jury charge on malice.2 The district

1
Nom filed an untimely petition for re-hearing, which the
SJC denied on January 26, 1998. On November 10, 1998, Nom filed a
motion for a new trial in the Middlesex Superior Court based on
ineffective assistance of counsel, which was denied on May 27,
1999. On February 28, 2000, a single justice of the SJC denied Nom
leave to appeal the Superior Court's decision.
2
Nom also petitioned for habeas relief on the ground that
the admission of statements which he made without having received
his Miranda warnings violated his Fifth Amendment rights. Nom
voluntarily dismissed this claim prior to the district court's

-2-
court denied the petition on both grounds, and issued a certificate

of appealability on the Fifth Amendment issue. We affirm.

II.

In its opinion on Nom's direct appeal, the SJC summarized

the relevant facts. Commonwealth v. Nom, 686 N.E.2d 1017, 1020

(Mass. 1997). On April 17, 1994, in Lowell, Massachusetts, Nom's

wife was found dead in Nom's parked car with a gunshot wound to the

head. That morning, police officers from the Lowell police

department spoke by telephone with Nom, who agreed to accompany

them to the police station. In response to questioning at the

police station, Nom initially told Inspector John Guilfoyle and

Trooper James M. Connolly that he had remained at home throughout

the night. He stated that his wife had left at some point during

the evening with his car and that he had not seen her or his car

since then. At this point, the police officers had not given Nom

his Miranda warning. See Miranda v. Arizona, 384 U.S. 436 (1966).

Subsequently, the police received information from Nom's

family members that he had gone out with his wife the previous

evening and had not remained home as he stated. In response to

this information, a police officer advised Nom of his Miranda

rights at approximately 12:35 p.m., and Nom immediately waived

those rights. However, when the police subsequently asked to test

his hands for gunshot residue, Nom stated that he wanted an

decision.

-3-
attorney present. All questioning ceased and all police personnel

left the room. Trooper Connolly then reentered and sat down but

did not speak. Nom shrugged his shoulders and Connolly did the

same. Nom then said, "I admit it." Connolly replied, "What?" and

Nom then said, contrary to his initial statement, that he was out

at a restaurant with his wife the night of the shooting. Inspector

Guilfoyle then reentered the room and asked Nom why he wanted an

attorney. Nom replied that he wanted an attorney only for the

purpose of witnessing the gunshot residue test and that he would

continue to talk to the police without an attorney present.3 At

this point, Nom was again given his Miranda warnings orally and by

a card which he signed.

In the ensuing hours, Nom gave the police a second and

then a third written statement regarding his involvement in the

shooting. In the second statement he claimed that, while he was in

the restroom of the restaurant, his wife and a man with whom she

had been flirting left in Nom's car. In the third statement, Nom

said that he saw his wife leaving the restaurant with the man. He

then followed them to the car and got into an altercation with the

3
The trial court elaborated that when Guilfoyle asked Nom
why he wanted an attorney, "Nom answered that he wanted an attorney
to witness the testing of his hands. He was asked whether there
was any other reason and said, 'No.' He was asked if he would
continue to speak to the police without an attorney and he
indicated that he would." Commonwealth v. Nom, No. 94-864, slip op.
at 6 (Mass. Dist. Ct. June 21, 1995)(order on defendant's motion to
suppress).

-4-
man, which ended when the man fired a handgun at Nom and drove off

with Nom's wife. Soon after giving this last statement, Nom was

arrested. The next morning, after learning that the police had

gathered evidence identifying him as the shooter, Nom gave a fourth

written statement asserting that he had shot his wife accidentally

during an argument.

Nom moved to suppress the statement he made before the

police advised him of his Miranda rights (about his wife leaving

with his car); the trial court granted this suppression motion.

Nom also moved to suppress his statements made after he received

his Miranda warnings, arguing that (1) they were all tainted by the

fact that his first statement was secured in violation of his

Miranda rights, and (2) some of the statements were made in

response to questions he was asked after he had unambiguously

invoked his right to counsel. The trial judge denied this motion

to suppress on two grounds: (1) the second, third and fourth

statements were not tainted because his initial statement was not

incriminating--Nom said that he had neither seen nor heard from his

wife since she left home with his car the previous evening;4 and

4
There is a presumption that a statement made following the
violation of Miranda rights is tainted. "This presumption may be
overcome by showing either: (1) after the illegally obtained
statement, there was a break in the stream of events that
sufficiently insulated the post-Miranda statement from the tainted
one; or (2) the illegally obtained statement did not incriminate
the defendant, or, as it is more colloquially put, the cat was not
out of the bag." Commonwealth v. Nom, No. 94-864, slip op. at 11
(quoting Commonwealth v. Osachuk, 635 N.E.2d 1192, 1196 (1994)).

-5-
(2) Nom's request for counsel was "scrupulously honored" since all

questioning ceased and was only resumed when Nom initiated further

questioning by spontaneously stating "I admit it." The trial court

found that Inspector Guilfoyle's inquiry as to why Nom wanted an

attorney was "reasonable under the circumstances given . . .

[Nom's] spontaneous statement to Connolly." Commonwealth v. Nom,

No. 94-864, slip op. at 13. On direct appeal, the SJC agreed with

these determinations.

On March 6, 2000, Nom filed a timely habeas petition in

the United States District Court for the District of Massachusetts

asserting, inter alia, that Inspector Guilfoyle violated his Fifth

Amendment right to counsel when he asked Nom why he had requested

a lawyer. The district court denied the writ: "Although the

questioning of a suspect's request for an attorney is

constitutionally impermissible under ordinary circumstances, the

SJC did not unreasonably apply federal law to the facts as it found

them in this case." Nom v. Spencer, No. 00-10413, 2002 U.S. Dist.

LEXIS 16099, at *6 (D. Mass. Aug. 28, 2002). Petitioner now

appeals.

III.

The standard of review is set forth in the AEDPA statute,

28 U.S.C. § 2244-2266 (2002). On the grounds pertinent to this

case, a federal court may grant habeas relief to a state prisoner

if it finds, inter alia, that the state court adjudication

-6-
"resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal

law. . . ." 28 U.S.C. § 2254(d)(1). This section "defines two

categories of cases in which a state prisoner may obtain federal

habeas relief with respect to a claim adjudicated on the merits in

state court." Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

Under the "contrary to" prong, a federal court may grant the writ

if the state court "arrives at a conclusion opposite to that

reached by [the Supreme Court] on a question of law or if the state

court decides a case differently than [the Supreme Court] has on a

set of materially indistinguishable facts." Id. at 412-13. Under

the "unreasonable application" prong, a federal court may grant the

writ if the state court "identifies the correct governing legal

principle from [the Supreme] Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case." Id.

at 413. With respect to this second prong, the state court's

determination must be unreasonable, not simply incorrect, and

unreasonableness is an objective standard. Id. at 410-11. "If it

is a close question whether the state decision is in error, then

the state decision cannot be an unreasonable application."

McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002).

IV.

In affirming the trial court's conclusion that Nom's

Fifth Amendment right to counsel was not violated, the SJC noted

-7-
the trial court's finding that "[t]hroughout the morning of his

custody, the defendant spoke freely with the police," Nom, 686

N.E.2d at 1022, and only requested an attorney when the police

attempted to test his hands for blood and gunshot residue. At that

point, "all questioning ceased" until Nom "initiated further

conversation by stating 'I admit it.'" Id. (emphasis in original).

The SJC agreed with the trial court that Inspector Guilfoyle's

subsequent inquiry as to why Nom wanted an attorney was "no more

than a request for a clarification of the inconsistency between his

earlier request and his subsequent initiation of conversation with

Trooper Connolly," and was "neither designed nor reasonably likely

to elicit an incriminating response." Id.

Nom argues that the SJC's decision was contrary to the

Supreme Court's decision in Smith v. Illinois, 469 U.S. 91, 100

(1984), because it used the inconsistency between Nom's request for

counsel and his subsequent initiation of conversation with Trooper

Connolly to cast retrospective ambiguity on the clarity of his

"crystal clear" invocation of his right to have an attorney

present. Nom also argues that the SJC's decision was "an

unreasonable application of clearly established federal law, as

determined by the Supreme Court" in Miranda, and Edwards v.

Arizona, 451 U.S. 477 (1981), and their progeny. We turn to those

contentions.

-8-
A. "Contrary to . . . clearly established Federal law"

To assess Nom's argument that the SJC's decision was in

direct conflict with the Supreme Court's holding in Smith v.

Illinois, we first note the careful distinction drawn by the

Supreme Court in that case between the defendant's initial

invocation of the right to counsel and his subsequent waiver of

that right.

The courts below were able to construe Smith's
request for counsel as "ambiguous" only by
looking to Smith's subsequent responses to
continued police questioning and by concluding
that, "considered in total," Smith's
"statements" were equivocal. This line of
analysis is unprecedented and untenable. . . .
Where nothing about the request for counsel or
the circumstances leading up to the request
would render it ambiguous, all questioning
must cease. In these circumstances, an
accused's subsequent statements are relevant
only to the question whether the accused
waived the right he had invoked. Invocation
and waiver are entirely distinct inquiries,
and the two must not be blurred by merging
them together.

Smith, 469 U.S. at 97-98 (internal citations omitted).

The trial court always described Nom's initial request

for counsel as unambiguous.

The Court finds that upon Nom's request for an
attorney, all conversation ceased. Nom
reinitiated conversation when he asserted, "I
admit it." Inspector Guilfoyle's attempt to
clarify Nom's statement that he wanted an
attorney was appropriate in the context of
this situation.

-9-
Commonwealth v. Nom, No. 94-864, slip op. at 13. The SJC noted

this finding in its recitation of the facts: "When the police

subsequently requested to test his hands for gunshot residue,

however, the defendant stated that he wanted an attorney present.

The questioning ceased, and all police personnel left the room."

Nom, 686 N.E.2d at 1020. These statements by the trial court and

the SJC indicate that the clarity of Nom's request for an attorney

was never in question--the police officers, the trial court and the

SJC all understood that he had unambiguously invoked his right to

an attorney.

Moreover, the SJC correctly stated that once a suspect

has invoked his right to counsel, police interrogation must cease

and may only be resumed if the suspect initiated further

communication with the police. However, as the SJC stated, "the

burden remains upon the prosecution to show that subsequent events

indicated a waiver of the Fifth Amendment right to have counsel

present during the interrogation." Nom, 686 N.E.2d at 1022

(quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983)). Contrary

to Nom's interpretation, the SJC did not interpret Inspector

Guilfoyle's question about why Nom wanted an attorney as an attempt

to clarify Nom's ambiguous invocation of his right to counsel.

Instead, the SJC agreed with the trial court that the question was

an attempt to clarify whether, by initiating further communication

with the police, Nom was waiving his clearly invoked right to

-10-
counsel. "Guilfoyle's asking why he wanted an attorney in these

circumstances was no more than a request for a clarification of the

inconsistency between his earlier request and his subsequent

initiation of conversation with Trooper Connolly." Nom, 686 N.E.2d

at 1022.

Understandably, Nom cites the SJC's statement that

Inspector Guilfoyle's question was "a response to the defendant's

ambiguously invoking his right to counsel and then initiating

further conversation with the statement 'I admit it.'" (emphasis

added). Read in isolation, the placement of "ambiguously"

immediately before "invoking" suggests that the SJC did not heed

the Supreme Court's admonition in Smith that "invocation and waiver

are entirely distinct inquiries, and the two must not be blurred by

merging them together." Smith, 469 U.S. at 98. However, in light

of the entirety of the SJC's opinion and the trial court's

decision, we conclude that the SJC was focusing on the issue of

waiver (i.e. the initiation of conversation by Nom as waiver of his

previously invoked right to counsel). Hence, the SJC recognized

the principle of Smith that "an accused's subsequent statements

were relevant only to the question whether the accused waived the

right he had invoked," Id., and its decision was not contrary to

clearly established federal law.

-11-
B. "Unreasonable application of clearly established Federal law"

Having concluded that the SJC recognized the centrality

of the waiver issue in Nom's appeal, we must now address Nom's

contention that the SJC's resolution of this issue was an

unreasonable application of clearly established federal law.

After Nom initiated further communication by stating "I

admit it," the police did not forge ahead with questioning Nom

about this admission. Instead, Inspector Guilfoyle sought to

clarify whether Nom's statement was intended as a waiver of his

right to counsel by asking him why he wanted an attorney. In Davis

v. United States, 512 U.S. 452 (1994), the Supreme Court held that

"if a suspect makes a reference to an attorney that is ambiguous or

equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might be

invoking the right to counsel, our precedents do not require the

cessation of questioning." Id., at 459. The Supreme Court then

elaborated on this point:

when the officers conducting the questioning
reasonably do not know whether or not the
suspect wants a lawyer, a rule requiring the
immediate cessation of questioning "would
transform the Miranda safeguards into wholly
irrational obstacles to legitimate police
investigative activity," . . . because it
would needlessly prevent the police from
questioning a suspect in the absence of
counsel even if the suspect did not wish to
have a lawyer present. Nothing in Edwards
requires the provision of counsel to a suspect
who consents to answer questions without the
assistance of a lawyer.

-12-
Id. at 460 (internal citations omitted).

To be sure, the Supreme Court in Davis was addressing an

ambiguous request for counsel, not an ambiguous waiver of a prior

request for counsel. However, a defendant who has previously

invoked counsel unambiguously could, as Nom did here, volunteer a

statement in the presence of a police officer subsequent to that

invocation that creates an ambiguity in the mind of a reasonable

police officer about whether the defendant is now waiving his right

to counsel. In the presence of such an ambiguous waiver of a prior

request for counsel, the observation of the Supreme Court in Davis

seems apt: "When a suspect makes an ambiguous or equivocal

statement it will often be good police practice for the

interviewing officer to clarify whether or not he actually wants an

attorney." Id. at 461.5 As the SJC noted, "in ordinary

circumstances, there would be no proper basis for an interrogator's

5
We recently held in James v. Marshall, 322 F.3d 103 (1st
Cir. 2003) that police questioning designed to clarify an ambiguous
invocation of a suspect's Fifth Amendment rights

is precisely the kind of "good police
practice" described by the Supreme Court in
Davis, where the Supreme Court declined to
adopt a rule requiring officers to ask
clarifying questions in the face of an
ambiguous assertion of the right to counsel,
but noted that "when a suspect makes an
ambiguous or equivocal statement it will often
be good police practice for the interviewing
officers to clarify whether or not he actually
wants an attorney."

Id. at 109 (quoting Davis, 512 U.S. at 461.).

-13-
asking a suspect his reason for requesting an attorney." Nom, 686

N.E.2d at 1023. However, in the unusual circumstances of this

case, the SJC agreed with the trial court that Inspector

Guilfoyle's question to Nom about why he wanted an attorney present

was reasonably designed to clarify an ambiguity created by Nom

himself with his spontaneous statement, "I admit it." Nom's answer

to Guilfoyle's question--that he wanted the attorney present only

for the purpose of witnessing the gunshot residue test--indicates

that Nom understood the question, and that he knowingly and

voluntarily waived his right to have an attorney present during the

subsequent interrogation by the officers. The application by the

SJC of the principles of Davis to the facts of this case was not an

unreasonable application of clearly established federal law.

Affirmed.

-14-