Unpublished Disposition, 851 F.2d 360 (9th Cir. 1988)

MEMORANDUM^** 

McCrimmon (petitioner) appeals the district court's denial of his petition for writ of habeas corpus. This court reviews de novo the district court's decision to deny the petition. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

After petitioner was arrested in connection with the murder of a Las Vegas man, he was advised of his right to counsel. Thereafter, police detectives interviewed him about his activities on the night of the death. Petitioner answered the questions until he was asked about the murder. At that point, petitioner declined to answer questions before talking to an attorney and the police ceased questioning him. An hour later, one of the officers returned with a transcribed statement for petitioner to sign and to obtain booking information. Petitioner had not seen an attorney. According to the detective, as he began to fill out a booking sheet, petitioner inquired about the charges for which he was being booked and asked a series of third-person hypothetical questions regarding justifiable homicide. The detective answered his questions and thereafter petitioner agreed to give a second statement on videotape. Petitioner was readvised of his constitutional rights prior to and during the videotaping. Petitioner contends that his right to counsel was violated, that his videotaped statement was coerced, and that the trial court erred in admitting his videotaped statement.

Petitioner was granted a full evidentiary hearing on his motion to suppress the videotaped statement in state court. The state court found that petitioner was advised of and understood his constitutional rights at the time of his first statement and that when he requested counsel, the interview ended. The court also found that the detective's request for petitioner's signature on the first statement and booking questions were administrative and did not constitute a reopening of interrogation, and that petitioner initiated the exchange that led to the videotaped statement. It ruled that the videotaped statement was voluntary and that petitioner was readvised of his right to counsel and knowingly waived it before making the videotaped statement.

After an accused has invoked his right to counsel, he may not be interrogated unless he initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477 (1981); see also Neuschafer v. McKay, 807 F.2d 839, 840 (9th Cir. 1987). The state trial court's findings that petitioner initiated the exchange which led to the videotaped statement and voluntarily waived the right to counsel which he had previously invoked are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Cf. Evans v. Raines, 800 F.2d 884, 886-87 (9th Cir. 1986) (state court finding that defendant competently, knowingly and intelligently waived right to counsel entitled to presumption of correctness). This court has reviewed the record and concludes that it supports these determinations. The detective testified at the hearing on the motion to suppress that petitioner initiated the dialog by inquiring for which charges he was being booked and then asking a series of hypothetical questions about justifiable homicide. However, petitioner testified that when the detective returned with the statement for him to sign, he asked for an attorney. Petitioner stated that the detective responded that the police already had a statement from another witness that would poke holes through his first statement and that petitioner should tell the truth. However, the trial court, acknowledging that the testimony conflicted, found that the defendant reopened the dialog by asking the officer questions. Thus, this finding is based on the court's assessment of the credibility of the witnesses, which we cannot reassess. Maggio v. Fulford, 462 U.S. 111 (1984). Therefore we conclude that petitioner initiated the exchange which led to the videotaped statement and that he voluntarily waived his right to counsel before making the statement.

Contrary to respondents' contention, however, the state trial court's determination that petitioner confessed voluntarily is not entitled to a presumption of correctness. Miller v. Fenton, 474 U.S. 104 (1985). Thus, the district court correctly made an independent assessment of the record concerning the voluntariness of petitioner's videotaped statement. This court has also reviewed the record. We agree with the district court that the detective's statements were not coercive, that the videotaped statement itself indicates that it was made voluntarily and that petitioner was readvised of his right to counsel prior to and during the videotaping. Thus, in view of the totality of the circumstances surrounding the videotaped statement, the facts determined by the state court evidentiary hearing, and the statement itself, we conclude that petitioner's statement was voluntary.

Therefore, because petitioner initiated the second exchange with the detective, made the statement voluntarily and knowingly and intelligently waived his right to counsel, the videotaped statement was admissible.

AFFIRMED.