NORTH CAROLINA v. BUTLER

Print this transcript Transcript: 

Argument of Lester V. Chalmers, Jr.

Chief Justice Warren E. Burger: The case is submitted.

We'll hear arguments next in North Carolina against Butler.

Mr. Chalmers, you may proceed whenever you're ready.

Mr. Lester V. Chalmers, Jr.: Mr. Chief Justice and may it please the Court.

The respondent, Willie Thomas Butler, was apprehended and arrested by Special Agent David C. Martinez and other agents of the Federal Bureau of Investigation on May 3, 1977 in an apartment located in New York City.

Upon an unlawful flight warrant to avoid prosecution, Agent Martinez read to the respondent from a card which reads as follows.

“Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in Court.

You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questions if you wish.

If you decide to answer questions now without a lawyer present, you will still have the right to stop answering and at any time until you talk to a lawyer.”

The petitioner asserts that if ever, agent fully complied with the prophylactic rules, as announced by Miranda, and the current policy of the Federal Bureau of Investigation regarding the waiver of rights in the use of form FD 395, as appears on page 13 and 14 of the brief of the Solicitor General.

The respondent was not questioned at this time about any offense that occurred in North Carolina.

He was transported by the agents to their New Rochelle office, about six miles away.

He was taken to an interview room at the FBI office in New Rochelle and then handed the advice of rights form FD 395 and subsequently asked whether he read the form, and he nodded his head and said he had.

He was asked if he understood it and he replied he did.

He was then asked to sign the form and replied that he didn't want to sign the form and stated “I will talk to you but I am not signing any form.”

Agent Martinez further testified that he did not threaten the respondent and did not offer him any hope of reward or inducement to get the respondent to talk to him, and they did not use any misrepresentation, trickery, force, or coercion to get the respondent to talk to him.

That the respondent was in the possession of his faculties and did not appear to be under the influence of alcohol or narcotic drugs.

That the respondent told him that he had 11 -- an 11th Grade education and that the respondent appeared to know what was going on about him and appeared to respond to questions in sequential fashion.

Agent Martinez further testified that the respondent told him he would speak to him without a lawyer, that the respondent never told him that he did not want a lawyer present, nor did the respondent tell him that he did want a lawyer present.

That he, again, informed the respondent that he could have a lawyer and that one would be appointed for him if he so desired, and that he asked the respondent the following question.

“Will you speak to us knowing full well that you have these rights?”

And the respondent replied, “I won't sign the form.

I will talk to you but I won't sign the form.”

Martinez further testified that it was his impression that the respondent did understand his rights and did not necessarily want a lawyer, but that he would refuse to sign any type of paper.

The trial court concluded that any statements made by a respondent to Special Agent Martinez were made freely and voluntarily after the respondent had been advised of his Miranda rights, including his right to an attorney and that the respondent understood these rights and that he effectively waived these rights, including the right to have an attorney present during the questioning by his indication that he was willing to answer questions.

And that the statement made by the respondent was made at a time when the respondent understood his rights and that no promise or offer of an illicit nor threats or pressure or coercion of any type had been exerted against him, the respondent -- and that any statement or confession so made was freely and voluntarily given.

The trial court then admitted into evidence the exculpatory statements made the respondent to Special Agent Martinez.

The Supreme Court of North Carolina reversed the trial court and held that the evidence on board there was insufficient to support the finding that the respondent waived his rights to counsel by written waiver or a specific oral waiver knowingly made.

It is noted and called to the Court's attention that this interview was conducted by a trained agent of the Federal Bureau of Investigation and that he rigidly followed the current FBI procedures as they appear in the brief of the Solicitor General and it is further noted that Chief Justice Warren, at pages 483 and 484, commended to all law enforcement agencies the practice of the Federal Bureau of Investigation as they existed at that time with respect to interviewing suspects.

Mr. Chief Justice Warren stated that the practice of the FBI can readily be emulated by state and local agencies.

And in a footnote on page 55 -- footnote 55, page 485, Mr. Chief Justice Warren stated, “We agree that the interviewing agent must exercise his judgment in determining whether the individual waives his right to counsel because the constitution -- because of the constitutional basis of the right.

However, the standard for waiver is necessarily high and, of course, the ultimate responsibility for resolving this constitutional question lies with the courts.

The petitioner does not challenge the continuing validity of the Miranda decision nor any of the guidelines it established to protect what the Court said in Miranda was a person's constitutional privilege against compulsory self-incrimination.

The issue in this case is as follows, interpreting this Court's decision in Miranda in the absence of an expressed oral or expressed written waiver of right to counsel prior to questioning, does Miranda allow a finding of an implied waiver of right to counsel from the totality of the surrounding facts and circumstances of the case where the suspect has been fully advised of his constitutional rights before making voluntary incriminating statements in response to this question -- to questioning.

Resolution of this question turns almost entirely on the interpretation of the three passages in Miranda -- in the Miranda opinion which the North Carolina Supreme Court, relied on in finding a per se violation of Miranda.

It is the position of the petitioner that the interpretation of the three passages relied on by the Supreme Court of North Carolina at page 474, 475, and 479 of Miranda should not lead to absurd or unintended results and transform the Miranda safeguards into wholly irrational objects, obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make an informed, an intelligent assessment of their entries.

Justice Harry A. Blackmun: Do you feel the North Carolina rule is rather isolated?

Mr. Lester V. Chalmers, Jr.: I'm sorry?

Justice Harry A. Blackmun: Do you feel the rule enunciated by your Supreme Court is rather isolated among other courts?

Mr. Lester V. Chalmers, Jr.: Mr. Justice Blackmun, I do.

Justice Harry A. Blackmun: Why do you think your Court takes that position?

Mr. Lester V. Chalmers, Jr.: I can only say, sir, that it -- in the four or five cases that our Court has had this question raised to them, they have strictly interpreted Miranda.

And to answer your first question, sir, it's my recollection that every Circuit Court in the United States, including the District of Columbia and 20 of our sister states, interpret Miranda opposite from our North Carolina Supreme Court.

Justice Harry A. Blackmun: Do you think they're throwing the ball of Miranda back here?

Or is that what they're doing or what?

I'll withdraw that question.

Mr. Lester V. Chalmers, Jr.: We -- Mr. Justice Blackmun, we are here, sir.

What do these passages mean, as interpreted by North Carolina Supreme Court?

The petitioner asserts that they do not mean that an informed waiver of a right may be ineffective even when voluntarily made.

As Mr. Justice White said in his concurrent opinion in Michigan against Mosley, unless an individual is incompetent, we have, in the past, rejected any paternalistic rule protecting the defendant from his intelligent involuntary decisions about his own criminal case.

To do so would imprison a man in his privileges and to disregard the respect for the individual which is the lifeblood of the law.

The petitioner asserts that these words do not prohibit every element which influences a criminal suspect to make incriminating admissions.

As Mr. Chief Justice Burger stated in United States against Washington, the Fifth Amendment does not preclude a witness from testifying voluntarily in malice which may incriminate him.

For all his competent and free will to do so may give evidence against the whole world, themselves included.

Indeed, far from prohibited by the constitution, admissions of guilt by wrong doers, if not coerced, are inherently disarmed.

In addition to guaranteeing the right to remain silent and, unless in here if it's granted, the Fifth Amendment prescribes only self-incrimination obtained by a genuine compulsion testimony, accordingly, unless the record reveals some compulsion, respondent's incriminating testimony cannot conflict with any constitutional guarantees of the privilege.

Mr. Chief Justice Burger stated, at page 188, the test is whether, considering the totality of the circumstances, the free will of the witness was overborne.

Justice Potter Stewart: Well, that's not the test of Miranda, is it?

Mr. Lester V. Chalmers, Jr.: Sir?

Justice Potter Stewart: The test under Miranda is not whether the free will of the witness was overborne but, rather, whether the Miranda warnings were given and that's it.

Mr. Lester V. Chalmers, Jr.: That's -- that is the position --

Justice Potter Stewart: Miranda is not a voluntariness test.

Mr. Lester V. Chalmers, Jr.: No, sir.

That is the position of the State of North Carolina, Mr. Justice Stewart.

Justice Potter Stewart: Well, isn't it that -- what Miranda said and --

Mr. Lester V. Chalmers, Jr.: That's what Miranda said, yes.

Justice Potter Stewart: What this Court has done in every case that has followed Miranda?

Mr. Lester V. Chalmers, Jr.: That's correct, sir.

And may I state, sir, that in Michigan against Mosley you, sir, stated that a blanket prohibition against to taking a voluntary statement or a permanent immunity from further interrogation regardless of the circumstances would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity and deprive suspects of an opportunity to make informed and intelligent assessments of their interest.

We say, sir, that our Court has taken, by exposition, taken these words to mean that the suspect is deprived of an opportunity to make an informed and intelligent assessment of his interest, and to take whatever action he voluntarily chooses.

Justice Thurgood Marshall: I think that the respondents would take the position that the respondent doesn't mind to appraise his own position quietly and to himself but not before public office.

Justice Potter Stewart: Without help from the prosecution.

Justice Thurgood Marshall: And without help from the prosecution.

Why put all the weight on that he wants to sit down and appraise something, the respondent?

Mr. Lester V. Chalmers, Jr.: I think --

Justice Thurgood Marshall: You keep saying that.

Mr. Lester V. Chalmers, Jr.: I think that any --

Justice Thurgood Marshall: He was under detention in the FBI headquarters and he thinks out loud.

Is that your position?

Mr. Lester V. Chalmers, Jr.: No, sir.

No, sir.

Justice Thurgood Marshall: But, I misunderstood you to say --

Mr. Lester V. Chalmers, Jr.: No, sir.

No, sir, Mr. Justice Marshall.

It's not.

Justice Thurgood Marshall: I'm sorry.

I thought that's what you were saying.

Mr. Lester V. Chalmers, Jr.: No, sir.

Further, the position of the state of North Carolina, the petitioner, that these words were not intended to create a constitutional safe -- straightjacket, as Mr. Justice Rehnquist stated in Michigan against Tucker.

The suggested safe --

Justice John Paul Stevens: Mr. Chalmers, I did understand you to be arguing that the rule that the North Carolina Supreme Court follows deprives the suspect of the opportunity to act intelligently in his own way.

Weren't you say -- arguing about it?

Mr. Lester V. Chalmers, Jr.: No, sir.

No, sir.

I'm saying this, Mr. Justice Stevens, that our Court, by its interpretation of Miranda, has placed on the law enforcement agents and the Federal Bureau of Investigation within the confines of the North Carolina, and expressed written or oral waiver before any statement can be admitted --

Justice John Paul Stevens: That's right.

Mr. Lester V. Chalmers, Jr.: Disregarding entirely any circumstance, any gesture, any words that the defendant uses to give to the trial judge at the trial level sufficient facts to find out exactly what --

Justice John Paul Stevens: Doesn't the rule that North Carolina Court follows have the advantage of a little more certainty than the finder of fact trying to interpret ambiguous conduct?

Mr. Lester V. Chalmers, Jr.: No, sir.

I think, on the other hand, and I'll get to it in just a moment, Mr. Justice Stevens, I think what our North Carolina Court, by its rule, has done is to, in effect, add another sentence to those litany of the Miranda warnings wherein our Court now, by its interpretation of Miranda, would now require this Court to add the litany “since you decline to execute a written waiver of your rights, do you know expressly orally waive these rights?”

Justice John Paul Stevens: And what would be wrong with that to be darn sure about what he intends to do?

Mr. Lester V. Chalmers, Jr.: Would that solve the question?

Justice John Paul Stevens: Sure, if the answer is yes, the issue is answered.

Mr. Lester V. Chalmers, Jr.: Alright, sir, and, suppose, sir, the defendant at that time makes no statement but continues on talking?

Justice John Paul Stevens: Well, suppose he talks before he gets the Miranda warnings at all.

It's the same problem.

I mean, you -- I suppose one -- one of the interest hat law enforcement people have here is to have a clear-cut rule where everybody knows when the questioning can commence.

Mr. Lester V. Chalmers, Jr.: Yes, sir.

Justice John Paul Stevens: And you know you can't commence, at least until you read him the form.

Mr. Lester V. Chalmers, Jr.: That's correct.

Justice John Paul Stevens: And the question is can you convince -- can you commence before he answers unequivocally, “I'm prepared to talk.”

Mr. Lester V. Chalmers, Jr.: Well, we say that --

Justice John Paul Stevens: You say, “Yes, well, if we just kind of leave a little ambiguous, we'll take our chances on what the trial judge will find.”

Mr. Lester V. Chalmers, Jr.: No, sir.

Justice John Paul Stevens: And if you require him unequivocally to say how he feels, well then, isn't it -- don't you remove one issue from the trials that follow?

Mr. Lester V. Chalmers, Jr.: Yes, sir, except you are adding to the litany of Miranda and making --

Justice John Paul Stevens: But for the very reason that you have the Miranda warning.

You want to be very sure that the man is prepared to confess voluntarily without counsel.

Mr. Lester V. Chalmers, Jr.: That's correct.

We -- we have no problem whatsoever with the fact that a prisoner or a suspect should be fully informed and should --

Justice John Paul Stevens: And shouldn't there be a question in your mind when he says, “No, I won't sign the form”?

Mr. Lester V. Chalmers, Jr.: No, sir, there's no question in my mind about that.

Justice William H. Rehnquist: I suppose in your guilty plea cases where you have a set of things that the trial judge has to read to the person who's pleading guilty as to what he's giving up.

There really has not been nothing yet devised that makes a fool-proof situation where the defendant can't come in and say, “Well, I was under the -- I did say yes.

I understood it all.

I did sign it, but I was in -- under the influence of drugs at the time and, therefore, I want a new hearing on it.”

Mr. Lester V. Chalmers, Jr.: No, sir, that -- and we face that, Mr. Justice Rehnquist, in North Carolina with respect to post conviction hearings and also habeas corpus hearings where the long line of questions asked of a defendant are repudiated at a later date in denying it.

And I don't think that adding one other, or two other, or three other sentences to the long list that we have on the defendant, and as they plead, would preclude him from recanting or denying that he voluntarily plead.

Justice John Paul Stevens: No, but you really don't have a problem if he signs the form, do you?

Mr. Lester V. Chalmers, Jr.: Not under--

Justice John Paul Stevens: Isn't it standard practice to try and get him to sign the form.

Mr. Lester V. Chalmers, Jr.: No, sir.

I can't say that it is.

We're dealing with --

Justice John Paul Stevens: But it did here.

Mr. Lester V. Chalmers, Jr.: We're dealing -- in the facts in this case, we're dealing with an FBI agent, a highly trained sophisticated law enforcement agent, and I can't say that --

Justice John Paul Stevens: On the one side of the conversation, a highly sophisticated law enforcement agent.

That's right.

Mr. Lester V. Chalmers, Jr.: Yes, sir.

The best our country is able to produce.

Justice John Paul Stevens: If he was unable to get him to sign a form saying that --

Mr. Lester V. Chalmers, Jr.: No, sir.

I don't think he -- I don't think that there's anything in this record that this FBI agent was unable to get him to sign the form.

Justice John Paul Stevens: Well, he asked him to, didn't he?

Mr. Lester V. Chalmers, Jr.: He handed him the form and asked him what he signed.

Justice John Paul Stevens: Yes.

Mr. Lester V. Chalmers, Jr.: Yes, sir, but I don't think, and I don't -- in fact, I'm certain that there's no -- there's nothing in the record or any other allegation about that then.

Mr. Braswell, representing the respondent, that there wasn't any pressure put on the respondent Butler.

After he handed him the statement, he said “I won't sign it.”

And to say that the fact that he won't sign a statement determines fully and completely the involuntariness or the inadmissibility per se of anything he says further is to ignore reality or how he raised his children and all that fruit don't put your name upon anything (Inaudible), don't sign anything.

And this is exactly what respondent Butler did.

And with your permission, sir, and the permission of the Chief Justice, as I may request just a moment, we have another case that's pending before this Court now and it's cited in our brief where an FBI agent testified with respect to incriminating statements made, again, in North Carolina.

The FBI agents in that case terminated the interview as soon as the man said that he wanted to talk to his mouth piece.

That's why I said that we are dealing with the --

Justice Thurgood Marshall: That's what the FBI regulation says.

Mr. Lester V. Chalmers, Jr.: Yes, sir.

Justice Thurgood Marshall: To its agent?

Mr. Lester V. Chalmers, Jr.: Yes, sir, and, Mr. Justice Marshall, let me say to you that we in law enforcement have no problem living with Miranda.

Miranda is good.

Those guidelines are good.

We're not asking this Court to expand them and to read into something that this Court, which we feel has not, did not say in Miranda.

I submit that these words do not mean that a suspect is required to execute a written waiver or expressly orally waive these rights guaranteed by Miranda.

Mr. Chief Justice Warren stated at page 475 of the opinion, “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and he's rights to retain opponent counsel.

This Court has always set high standards of proofs for the waiver of constitutional rights and, we assert, these standards is applied to in-custody interrogation.

The position of the State of North Carolina, and we assert, that is just as Mr. Justice Rehnquist stated in Michigan against Tucker, the Court said, and I'm quoting, “The Court said in Miranda that the defendant of course could waive these rights, but that any waiver must have been made voluntarily, knowingly, and intelligently.”

We would ask this Court and we recognize fully that this Court is not bound by any interpretation of any Circuit Court throughout the United States but each one of the Circuits have interpreted Miranda, as was done in United States against Montos, a Fifth Circuit case where cert here was denied and the opinion expressed there was an expressed statement that “the individual does not require a lawyer,” is not required.

However, to show that an individual waived his right to have one present, prosecution must show that he was effectively advised that his rights have been effectively waived.

Justice Potter Stewart: Mr. Chalmers, you've said -- you repeated what you said earlier that each one of the Federal Circuits has expressed disagreement with North Carolina's rule.

Mr. Lester V. Chalmers, Jr.: That's correct, sir.

Justice Potter Stewart: At the time of your petition, I think it was 10 of the 11 circuits.

Mr. Lester V. Chalmers, Jr.: At the time of our petition, we could not and did not find the Sixth Circuit.

We were relying on the statement of the Solicitor General in his brief, amicus curiae, that the Sixth Circuit had ruled that way.

That is my reason for saying unanimity.

Justice Potter Stewart: I see.

And then, at the time of your petition, I think you said 16 states, and now you, today, told us 20 states.

Mr. Lester V. Chalmers, Jr.: I believe that, in our petition for cert and in our brief, we stated that there were 20.

Justice Potter Stewart: 20?

Mr. Lester V. Chalmers, Jr.: Yes, sir.

Justice Potter Stewart: And are they identified in your brief?

Mr. Lester V. Chalmers, Jr.: Yes, sir, they are.

Justice Potter Stewart: Alright, thank you.

That's all I needed.

Justice John Paul Stevens: Mr. Chalmers, before the Miranda case was decided, how many states had adopted the rule of the Miranda case?

Do you remember?

Mr. Lester V. Chalmers, Jr.: Before Miranda was announced by Mr. Justice -- Mr. Chief Justice Warren?

Justice John Paul Stevens: Yes.

Mr. Lester V. Chalmers, Jr.: Mr. Justice Stevens, if you pardon a personal observation, I've been in the prosecution business for 25 years and I am not past let any -- (Voice Overlap) that any law enforcement agency outside the Federal Bureau of Investigation --

Justice Thurgood Marshall: The FBI had won.

It was put in the record, and you know why I know it was put in the record?

I put it in there.

Mr. Lester V. Chalmers, Jr.: As I say, pre-Miranda, I don't --

Justice Thurgood Marshall: No, in the same time the Miranda case was argued, the United States against Jackson was argued because a federal case and the one the two chapters were on referred to the FBI warning regulation was put in the Jackson case.

Mr. Lester V. Chalmers, Jr.: That contention --

Justice Thurgood Marshall: And it had been used by the FBI for many years.

Mr. Lester V. Chalmers, Jr.: Yes, sir, but --

Justice Thurgood Marshall: Many years.

Chief Justice Warren E. Burger: Hadn't you just told us, Mr. Chalmers, that the FBI had followed this practice before Miranda?

Mr. Lester V. Chalmers, Jr.: Yes, sir.

Justice John Paul Stevens: But my point is that --

Mr. Lester V. Chalmers, Jr.: Yes, sir, I was -- to answer his question --

Chief Justice Warren E. Burger: The state had not followed it, but the FBI had followed it.

Mr. Lester V. Chalmers, Jr.: The FBI had the policy pre-Miranda, as appears on page 483-486, I believe, of Miranda.

Justice John Paul Stevens: But pre-Miranda, neither -- no state had it nor any Court of Appeals.

Mr. Lester V. Chalmers, Jr.: I --

Justice John Paul Stevens: But, now, at least they've got North Carolina on this rule.

So, there's more support for the rule the defendant asked for here in the other courts than there was for Miranda before this Court decided.

Mr. Lester V. Chalmers, Jr.: I cannot take exception to that, sir.

Thank you, Mr. Chief Justice.

Argument of R. Gene Braswell

Chief Justice Warren E. Burger: Mr. Braswell.

Mr. R. Gene Braswell: Mr. Chief Justice and may it please the Court.

At the outset, I would like to explain the facts and elaborate upon those a little differently than my brother did in stating that I think one must look and see that, at the time of 6 o'clock A.M. that morning, seven to eight from the FBI arrived at the residence of the respondent.

He was awoken by a loud noise.

He was going in -- the agents went inside and awaken him from his sleep, took him out, advised him orally of his rights.

He made no statement.

He was taken down to the New Rochelle office.

Chief Justice Warren E. Burger: What's the significance that you attach to the hour of the day?

Mr. R. Gene Braswell: Because I say that is understandingly intelligently and knowingly waived any rights that he may have.

I wanted to bring that to the Court's attention that within one hour --

Chief Justice Warren E. Burger: But how does that -- what -- that doesn't relate to six o'clock in the morning as it might at 2 o'clock in the morning in that sense, does it?

Mr. R. Gene Braswell: Well, I think it does, depending upon -- it said that he was very quiet.

It took a lot of noise to get him aroused.

He was startled at the time.

There were seven agents.

They were prepared to go to any extreme and indicated by office Martinez, that they took him down approximately 7:15 in New Rochelle office.

They handed him a form and asked him to read it.

Whereupon, I contend that the officer, at that time, assumed that this man had the intelligence to understand that he could read it simply from stating that he had an 11th Grade education.

There's no guarantee that this man possess the intelligence to understand what he read at that time.

After he read that, he stated, “I will not sign it.

I will not sign anything.”

And at that time, the officer proceeded to say, “It is not mandatory that you sign the form.

We would like for you to talk to us.”

The respondent contends that, at that time, the questioning should've stopped, unless when the officer made the statements, “Well, it's not mandatory that you talk to us, but we would like to ask you some questions.”

The officer should've said to him at that time, “But if you answer those questions, those rights that are in that written paper that you just had in your hand will still apply,” because, as stated, I believe, that the man at that time felt, as he was there, as my brother said, paper, to me, it attaches a different significance and that the paper writing was something permanent.

And that he was being offered something to sign and say, “I give up these rights.”

He refused to do it.

He refused to take that step, and I believe our Court -- Supreme Court of North Carolina is in standing with what Miranda decision meant and what it implies, that that time, if in any manner, a suspect in any manner allows or instigates or makes a statement to say that he, at that time, intends to exercise his rights, then there's a duty for the FBI man to stop and not go any further.

Justice Potter Stewart: Exercise what rights?

Mr. R. Gene Braswell: That -- to remain silent, not make any statement, or that he wants a counsel, or, words of that time, he states or he makes a statement, “I'm not going to sign anything.I will not sign the form.”

But at that time, Martinez should've stopped.

Justice Thurgood Marshall: But Mr. Braswell, there wasn't any signed statement involved in Miranda, was there?

Mr. R. Gene Braswell: No, sir, there was not, Justice Marshall.

Justice Thurgood Marshall: Well, where do you put all this on the signed statement and put it on Miranda?

Mr. R. Gene Braswell: I think the interrogator set the tone of the interrogation.

He orally advised the man of his rights and the man made no statements.

He then came in and he places a written statement before him and says “read this.”

He, at that time, set the tone of what he was going to do about giving this man his rights.

If he intended to give his rights to him, I contend and respondent -- in behalf of the respondent, that he should've read them to him.

That he should've said that.

He should not assume that the man could've read them and understood them.

He should have gotten that specific waiver that Justice Stevens is talking about.

Justice Thurgood Marshall: My only point is why the answer is on him not signing that.

Mr. R. Gene Braswell: Because that's what the officer gave to him, Justice Marshall.

I feel, at that time when he gave him that, he at that time placed himself, the agent that is, placed himself in this man's mind of saying, “Here is something that you must sign if you want to waive your rights,” and the man refused to sign it.

Chief Justice Warren E. Burger: Do you -- do you contend that he didn't understand what was printed on the material handed to him?

Mr. R. Gene Braswell: I say the record is silent from that, sir.

He -- I'm saying that the Court --

Justice Potter Stewart: The record does show that he said he had an 11th Grade education.

Mr. R. Gene Braswell: Right, he nodded his head, sir.

In our state, this year, we gave an 11th Grade competency test where approximately 25% of the people fan -- failed which, I think, shows that a person may be ashamed, he may be reluctant to admit that he can't read and right and understand --

Justice Potter Stewart: Normally, there's a presumption that somebody who's gone through 11 years of schooling knows how to read and right.

Mr. R. Gene Braswell: I grant you that, sir, but at -- I'm saying that at this particular case that this man here did not ever acknowledged that he understood everything about it, except to say, “I will not sign anything.”

Justice Potter Stewart: Doesn't the record also indicate that he was orally advised of his rights under the Miranda case?

Mr. R. Gene Braswell: Sir, earlier, and he exercised --

Justice Potter Stewart: Now, there's no indication that he was deaf, is there?

Mr. R. Gene Braswell: No, sir.

He exercised those at that time and he exercised them again with the written waiver.

Justice Potter Stewart: He exercised what?

Mr. R. Gene Braswell: He exercised his right to remain silent.

Justice Potter Stewart: No, he talked.

He said “I'll --

Mr. R. Gene Braswell: No, sir.

Justice Potter Stewart: He expressed his willingness to talk and then he talked.

Mr. R. Gene Braswell: He did not talk after the oral advisory.

He did not talk after the offer of the paper.

He said, “I will not sign,” and he did not make any statement until the officer said to him, “It is not mandatory that you sign the form, but we would like for you to talk to us” which, as indicated here, the man is a highly trained person.

Justice John Paul Stevens: Mr. Braswell --

Chief Justice Warren E. Burger: Isn't that correct that he's not required to sign?

Isn't that the correct statement of the law that he's not --

Justice Potter Stewart: Not in North Carolina.

Chief Justice Warren E. Burger: In the--

Mr. R. Gene Braswell: I think you --

Chief Justice Warren E. Burger: In Miranda -- under Miranda, is there any requirement that --

Mr. R. Gene Braswell: No, sir.

I say that he's -- he is not required.

Justice Potter Stewart: North Carolina has held that there is --

Mr. R. Gene Braswell: Sir?

Justice Potter Stewart: -- in this case.

That's what this case is about.

Mr. R. Gene Braswell: North Carolina has now, what --

Justice Potter Stewart: It has read Miranda to require an explicit waiver.

Mr. R. Gene Braswell: Expressed waiver.

Justice John Paul Stevens: Not necessarily in --

Mr. R. Gene Braswell: Either orally or written, not necessarily written but one of the other.

In other words, given a --

Justice Potter Stewart: Explicit, never implicit.

Mr. R. Gene Braswell: I've cited --

Chief Justice Warren E. Burger: Let me go back to my original question which has nothing to do with what North Carolina thinks about it.

Is there anything in Miranda in the opinion, directly or indirectly, which says that a person must sign in writing in order to waive?

Mr. R. Gene Braswell: No, sir, there is nothing.

Chief Justice Warren E. Burger: That's all my question is about.

Justice John Paul Stevens: Mr. Braswell, just so I have the sequence correct.

Am I not correct in recalling that the oral advice of Miranda rights was given in the Bronx before he was taken to the FBI office some seven or eight miles away?

Mr. R. Gene Braswell: That's correct.

Justice John Paul Stevens: And then after he got to the -- and there was no confession after the oral advise.

And after he got to the FBI office, he was handed the written thing to read to himself but there was no further oral statement of his rights at that time.

Mr. R. Gene Braswell: Nothing.

In the U.S. brief filed as amicus curiae by the Solicitor General, they indicate, and I state that if it had happened as they indicate in their brief we will not be here, that is they indicate that after the reading of the form by my client at that time that the agent advised him that, “If you do decide to talk, then you still have the same rights and if you want an attorney, one will be appointed for you if you can't afford one.”

If they had said that and he went ahead and made those statements, I'd say there'd be no need for us being here today, here in this case, but he did not say that.

He said, “I'm not going to sign anything.”

Again, Martinez said to him “it's not mandatory that you sign, but we would like to ask you some questions,” whereupon, he said, “Well, I'm not going to sign anything.

I'll talk to you.”

At that time, Martinez -- and I refer to the FDR 395, the FBI form which sets out the guidelines that one goes through if one encounters that, and I say that was not followed by the agent.

There was nothing to indicate that he wrote in the form that the man refused to sign but said he would talk to us.

There was nothing to indicate that my client, the respondent, ever had an opportunity to read, to see, to have it read back to him what allegedly he said which, I say, goes to one of the tests that has been implied later, of trustworthiness, by Justice Rehnquist which said that if you look at it overall and that the statement is trustworthy, you go to that.

Justice William H. Rehnquist: But that wasn't the basis on which the Supreme Court of North Carolina excluded the test.

Mr. R. Gene Braswell: No, sir.

They specifically -- they said there must be a specific waiver.

Justice Potter Stewart: Right and, Mr. Braswell, the opinion of the Supreme Court of North Carolina which decided this case in your favor seems to be inconsistent in its statement of the facts with the answer you just gave to my Brother Stevens.

It says in the last paragraph of the page, on page 83 of the appendix to the petition, says when he was arrested in New York at 1225 Chardon Avenue in Brooklyn, he was immediately and fully advised of his constitutional rights and transported to the New Rochelle office where he was again advised of his rights.

Defendant, who had an 11th Grade education, then took the advice of rights form and read it himself.

Now, you said that, just in answer to Justice Stevens, that all that was done at the New Rochelle office was to give him the right -- the advice of rights form and let him read it himself.

That's not what this opinion says.

Mr. R. Gene Braswell: No, sir.

I am sorry.

I misunderstood.

He was arrested and then he was transported.

Justice Potter Stewart: Yes, he was arrested and advised of his Miranda rights.

He was then transported to New Rochelle and again advised of his Miranda rights, and then was given the form to read.

Is that correct?

Mr. R. Gene Braswell: Well --

Justice Potter Stewart: That's what the North Carolina Supreme Court said.

Mr. R. Gene Braswell: No, sir.

I agree, that's what the case says, but the statement of the case by the petitioner and the appendix in the record itself says, and in the case, the only thing that has ever hap -- or ever happened at that time was that he was given the form to read.

Justice Potter Stewart: Could you show me the -- where in the appendix?

Justice John Paul Stevens: On the top of 825.

It's somewhat ambiguous actually.

“We advised him of his rights and I have a card that I carry with me that I have here.

The card reads as follows.”

Mr. R. Gene Braswell: Okay, so page 85, starting with the first paragraph, “During the trip and I gave him a prov -- his advice of rights form in the room.”

Justice Potter Stewart: Well, there's no question that he did give him the advice of rights form.

Mr. R. Gene Braswell: Yes, sir.

Justice Potter Stewart: The question is that he orally advised him before that.

Mr. R. Gene Braswell: Alright, sir.

I read, “During the trip, he was very quiet and he seem to accept the fact that we'd arrested him and he offered no resistance.

He knew who we were and I think he knew what was going on.

At the office space, Special Agent Ben and I took Butler up to an interview room and gave him the rights -- advice of rights form which he read.

There were not any paper served on him at that time.”

Skipping out, “I gave him the advice of rights form in the room and I observed whether or not he could read it.

I read it and I don't recall if I read it orally to him.”

Justice Potter Stewart: So, the statement in the opinion of the North Carolina Supreme Court, you think, is erroneous.

Mr. R. Gene Braswell: Yes, sir.

Justice Thurgood Marshall: Well, this is ambiguous.

“I don't recall if I read it orally to him or not.”

Mr. R. Gene Braswell: Yes, sir.

Justice Harry A. Blackmun: Mr. Braswell.

Mr. R. Gene Braswell: Sir?

Justice Harry A. Blackmun: Let me be sure as to what you're saying.

Do you disagree with a statement that he was given the Miranda warnings by Agent Martinez at the time of his arrest and again back at the agent's office?

Mr. R. Gene Braswell: I disagree in as much as if it says that he was given them orally back in New Rochelle office.

Justice Harry A. Blackmun: Because the -- what I've just read is from the petitioner's brief and, in your brief, you say that you rely on the statement of the case as set forth in the petitioner's brief --

Mr. R. Gene Braswell: Yes.

Justice Harry A. Blackmun: With one exception which is not relevant to what I'm asking.

Mr. R. Gene Braswell: Right.

In that there appears to be, again, an oversight of the statement and I feel that the --

Justice William H. Rehnquist: Oversight on whose part?

Mr. R. Gene Braswell: An oversight at the time that the Court read that that we all took it from that as Mr. Justice Stewart did at that time, sir.

But in looking back through the case and looking through the evidence in all, find that Officer Martinez was very -- could not be very exact in -- as to reading the rights or whether or not --

Justice William H. Rehnquist: Well, you didn't cross-petition for a review of the findings of fact of the Supreme Court of North Carolina.

Mr. R. Gene Braswell: No, sir, I did not, Mr. Justice Rehnquist.

Justice Potter Stewart: And is there any controversy about whether or not your client was asked if he understood his rights after reading the form and his reply that he did?

Mr. R. Gene Braswell: Again, Mr. Justice Stewart, there appears that he indicated by nodding his head and that he said he did.

Justice Potter Stewart: Again, I'm just reading from the opinion of the Court of Appeals of North Carolina.

Mr. R. Gene Braswell: Yes, sir.

Justice Potter Stewart: Which, as I say --

Mr. R. Gene Braswell: Right.

Justice Potter Stewart: Decided in your favor.

You're questioning that statement of fact also?

Mr. R. Gene Braswell: Not as this case relates, no, sir.

I do question as it having, in reality, occurred.

But based on the narrow question as I see this, I did not question it, no, sir.

Justice Byron R. White: Well, do you -- does the question here make -- does the question you think is here, is it affected by whether or not he was advised orally a second time at the stationhouse?

Mr. R. Gene Braswell: I think it does, yes, sir.

Justice Byron R. White: But why is that?

Mr. R. Gene Braswell: Because he said, “I will not sign anything.

I will not sign the form.”

And at that time, the agent said, “It is not mandatory that you sign, but we would like to ask you some questions,” and I think --

Justice Byron R. White: Yes, but what if he -- would the situation be different if the agent had orally advised him of his rights at the stationhouse?

Mr. R. Gene Braswell: I believe it would have, yes, sir.

Justice Byron R. White: Why is that?

Mr. R. Gene Braswell: Well, on the occasion when he was orally advised of his rights, he made no statement.

If three or four minutes occurred, a lapse of three or four minutes occurred after the reading of this --

Justice Byron R. White: Well, I know, but are you suggesting that he did understand his rights from the paper, you say?

I guess you assume he could read then and he understood his rights but he refused to sign?

Mr. R. Gene Braswell: Right.

Justice Byron R. White: So, you think he was twice given his rights.

Mr. R. Gene Braswell: They could give him --

Justice Byron R. White: Twice advised of his rights, once in orally and once in writing.

Mr. R. Gene Braswell: Yes, sir.

Justice Potter Stewart: He understood it.

Justice Byron R. White: And that he understood them both times?

Mr. R. Gene Braswell: That is what he indicated, yes, sir.

Justice Byron R. White: And you don't disagree with that.

Mr. R. Gene Braswell: Well, I'm saying that is the agent's assumption of what he said.

Justice Byron R. White: And you don't disagree with that he was given his rights to --

Mr. R. Gene Braswell: No, sir, I do not disagree that he was orally given them, that he was writtenly given at the station.

Justice Byron R. White: Or that he understood them both times.

Mr. R. Gene Braswell: I would disagree as to whether or not there is sufficient evidence to show that he understood them, yes, sir.

Justice Potter Stewart: And how about -- is there any controversy over the fact that he said, “I will talk to you”?

Mr. R. Gene Braswell: “I will talk to you?”

No, sir.

Justice Potter Stewart: You accept that as one of the findings?

Mr. R. Gene Braswell: I will -- I accept that he said that after the agent made the statement to him, yes, sir.

Justice Potter Stewart: And after the --

Mr. R. Gene Braswell: “It is not mandatory.”

Justice Potter Stewart: And after -- and after at least one oral and one written statement --

Mr. R. Gene Braswell: Yes, sir.

Justice Potter Stewart: Advise of his rights.

Mr. R. Gene Braswell: Right.

That after the agent says, “It's not mandatory for you to sign the form, but we would like for you to talk to us.”

Justice Potter Stewart: And then he said, “I will talk to you.”

Mr. R. Gene Braswell: He said, “I will talk to you, but I won't sign anything.”

Justice Potter Stewart: “I'm not signing any form.”

Mr. R. Gene Braswell: Right.

Chief Justice Warren E. Burger: You are saying in fact that refusal to sign repudiates any kind of consent.

Mr. R. Gene Braswell: I'm saying it should've stopped right there.

I think it should've gone -- should not have gone any further.

I think that is mostly akin to the -- with the exception of time limit there of what Browster states in -- where the man has gotten on the train and he's riding on the train going to where his other lawyer is.

Justice Thurgood Marshall: Wouldn't you decide to find if the agent asked him, “Do you waive your rights?”

Mr. R. Gene Braswell: Yes, sir.

If he --

Justice Thurgood Marshall: Would that satisfy you?

Mr. R. Gene Braswell: If he had have said to him and he had got an oral answer, “Yes, sir,” if he had said “Do you waive these rights?”

Justice Thurgood Marshall: That -- that'd be alright?

Justice Potter Stewart: Well, --

Mr. R. Gene Braswell: Yes, sir.

Justice Potter Stewart: -- probably, with today's education as you explain it to us, he wouldn't know what the word “waive” meant.

Mr. R. Gene Braswell: That's a very good point, Justice Stewart.

Quite cannily, a lot of times when a person is on the stand and you use a simple word “prior” he doesn't understand what you mean when you mean “before.”

It happens all the time.

Chief Justice Warren E. Burger: This man or some other people?

Mr. R. Gene Braswell: I can't say for this man, Mr. Chief Justice.

Justice Harry A. Blackmun: Does the record show how old he was?

Mr. R. Gene Braswell: I believe it does, if I understand -- if I recall from record 28, Justice Blackmun.

Justice John Paul Stevens: When you say he should've -- the FBI should've stopped, I take it, what you mean is they should've either given him orally the rights or some of the substance of it again and had him orally say, “Well, I'll waive orally --

Mr. R. Gene Braswell: They should've either stopped or they should've said at that time that “We would like to talk to you.”

Justice John Paul Stevens: Yes, he did.

Mr. R. Gene Braswell: “But it's not mandatory for you to sign this form but that if you talk to us, the same rights will apply.”

Justice John Paul Stevens: Is that your understanding of what the North Carolina Court held?

They didn't hold that he had to sign in writing.

They held that he had either to make it unequivocally clear orally or in writing.

Mr. R. Gene Braswell: Yes, sir.

That's correct.

Justice Potter Stewart: There had to be an explicit waiver --

Mr. R. Gene Braswell: Yes, sir, an explicit waiver.

Justice Potter Stewart: And that if he wants to get or find the waiver from circumstantial evidence.

Mr. R. Gene Braswell: Right.

We could not leave it up to the officer to assume.

Justice Potter Stewart: Right.

Mr. R. Gene Braswell: Yes, sir.

Any further questions?

Thank you, gentlemen.

Chief Justice Warren E. Burger: Thank you.

Do you have anything further, Mr. Chalmers?

Very well.

Thank you, gentlemen.

The case is submitted.

We'll hear arguments --