Full opinion text
ORDER GRAHAM, District Judge. THIS CAUSE comes before the Court upon Petitioner’s Amended Petition for Writ of Habeas Corpus (D.E.70). THE COURT has considered the Petition, the pertinent portions of the record, and is otherwise duly advised in the premises. BACKGROUND This case involves the rare and extraordinary occasion where a petitioner in state custody has prevailed on a claim of “actual innocence,” as that legal term is defined in the Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298, 316-321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). On September 9, 2002, after conducting lengthy evidentiary hearings in the matter, this Court determined that Petitioner Timothy Brown (“Brown”) demonstrated that no reasonable jury would have found him guilty beyond a reasonable doubt of the first-degree murder of Broward Sheriffs Deputy Patrick 0. Behan, had it heard the competent evidence presented during the federal habeas proceedings. See Brown v. Singletary, 229 F.Supp.2d 1345 (S.D.Fla.2002). In its September 9, 2002 Order, the Court recognized that its finding of “actual innocence” does not automatically entitle Brown to habeas relief, as the purpose of a federal habeas corpus proceeding is not to review or correct errors of fact, but to ensure that individuals are not imprisoned in violation of the U.S. Constitution. See Herrera v. Collins, 506 U.S. 390, 400-01, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). As the Supreme Court has made clear, “what we have to deal with [on habeas review] is not the petitioners’ innocence or guilt but solely the question whether their constitutional rights have been preserved.” Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Thus, the Court’s determination of “actual innocence” merely “opened the gateway” for the Court to consider the merits of Brown’s constitutional claims, including those claims which were otherwise procedurally barred. Schlup, 513 U.S. at 316, 115 S.Ct. 851; Brown, 229 F.Supp.2d at 1361. It is these constitutional claims to which the Court now turns. Brown was convicted in Broward County, Florida in 1993 as a principal to first-degree murder, in large part based on his statement to police that he was with co-defendant Keith King, when Keith King allegedly shot Deputy Behan. Brown, who was fourteen years old at the time of Deputy Behan’s death and fifteen years old at the time of his arrest, was tried as an adult and sentenced to life imprisonment without possibility of parole on November 19, 1993. See Brown, 229 F.Supp.2d at 1350-51. Keith King, who was seventeen years old at the time of the murder, pleaded guilty to manslaughter and was sentenced to fifteen years imprisonment, and has since been released. Id. The Court notes that the extensive factual and procedural background of this case is more fully set forth in the Court’s September 9, 2002 Order, and need not be revisited here. See Brown, 229 F.Supp.2d at 1347-1352. However, one preliminary procedural matter merits clarification. On September 22, 2000, the Court dismissed without prejudice Brown’s “unexhausted” claims, and directed Brown to file an amended petition containing only those claims which were exhausted. Brown complied with the Court’s directive by filing his Third Amended Petition, which asserted only his “exhausted” claims. Thereafter, in its September 9, 2002 Order, the Court found that Brown’s unex-hausted claims were procedurally defaulted, and that the merits of those claims were properly before the Court and could be considered as grounds for relief given Brown’s demonstration of “actual innocence.” Brown, 229 F.Supp.2d at 1364-1368. The parties have since fully litigated and briefed all of the claims in the Amended Petition, including the “unex-hausted” claims which were previously dismissed without prejudice. Accordingly, because the merits of the claims in the Amended Petition are properly before the Court, and there is no prejudice to either party as the issues have been fully briefed, the Court herein conforms the pleadings to the evidence and reinstates the Amended Petition nunc pro tunc. In the Amended Petition, Brown asserts a number of constitutional claims. Brown maintains that his fifth and fourteenth amendment rights to due process of law were violated because he was incapable of knowingly and intelligently waiving his Miranda rights, and because his confession was coerced and not voluntarily given. Brown also asserts that he was convicted in violation of due process of law due to the insufficiency of the evidence introduced against him at trial. Brown further contends that his right to due process was violated by the trial court’s erroneous “mi-sinstruction” to the jury at the beginning of trial as to the sentence he faced if convicted. In addition, Brown argues that his sixth and fourteenth amendment rights were violated by denial of the effective assistance of trial counsel in the investigation of the case, litigation of the motion to suppress, and the conduct of trial. Finally, Brown submits that he received ineffective assistance of appellate counsel. STANDARD OF REVIEW UNDER 28 U.S.C. § 2254 (1995) Another preliminary matter involves the statutory framework which this Court should apply to Brown’s habeas petition, which was initially filed in 1995, before significant revisions to the habeas corpus statute came into effect pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. 104-132, 110 Stat. 1214 (1996). In many respects, the AEDPA significantly limits habeas corpus review and provides for much greater deference to state court findings than provided by the pre-existing ha-beas statute. However, because Brown’s petition was filed before the effective date of the AEDPA, the Court finds, and the parties agree, that the AEDPA’s provisions do not apply here. The pertinent provision of the “pre-AEDPA” habeas statute, codified at 28 U.S.C. § 2254(d)(1995), requires a federal court to apply a presumption of correctness to certain state court findings of fact. Specifically, the statute provides: In any proceeding instituted in Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue ... shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— [that any one of the eight enumerated exceptions to the presumption of correctness applies]. Id. As the express terms of the statute make clear, a “presumption of correctness” applies only to state court factual findings made after a hearing on the merits of the factual issue, and then again, only if none of the eight (8) enumerated exceptions apply. The possible statutory exceptions in this case include 28 U.S.C. § 2254(d)(3) and (8), which provide that the presumption of correctness does not apply if the petitioner proves or if it shall otherwise appear: (3) that the material facts were not adequately developed at the State court hearing; (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record. ■ 28 U.S.C. § 2254(d)(3) and (8). Beyond codifying the presumption of correctness accorded to state court factual findings and the enumerated exceptions, the statute provides that a habeas petitioner may rebut any presumption with “convincing evidence” at an evidentiary hearing. As the final paragraph of 28 U.S.C. § 2254(d)(1995) sets forth: In an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous. Id. Thus, to the extent any presumption or correctness does apply, Brown would then have the opportunity to rebut any such presumption by establishing through “convincing evidence that the factual determination made by the state court was erroneous.” Id. The types of findings to which the presumption applies are those of “basic, primary, or historical facts” underlying a constitutional claim. Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 9 L.Ed.2d 770(1963). The presumption also applies to credibility determinations. See Williams v. Johnson, 845 F.2d 906 (11th Cir.1988). The statutory “presumption” does not apply, however, to conclusions of law, or even to mixed questions of law and fact. See Cuyler v. Sullivan, 446 U.S. 335, 341-342, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). DISCUSSION As this Court has previously noted, there was no physical evidence or eyewitness testimony linking 14 year-old Brown to the death of Deputy Behan, nor was any evidence of a motive to commit murder ever presented to the jury. See Brown, 229 F.Supp.2d at 1350. Instead, the State’s case largely revolved around the statement made by Brown to Broward Sheriffs Office (“BSO”) detectives op July 16,1991. Id. Given that Brown’s statement was the only meaningful evidence introduced against him, the Court will first examine Brown’s claim, set forth as Ground C of the Amended Petition, that Brown was denied his fifth amendment right to due process by the admission of his confession, because he did not knowingly and intelligently waive his rights on July 16, 1991 in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). I. BROWN’S CLAIM THAT HE DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHTS It is well-settled that in Miranda v. Arizona, the Supreme Court held that in order to protect an accused’s Fifth Amendment privilege against self-incrimination during the inherently coercive custodial interrogation setting, certain procedural safeguards must be employed. As a general matter, the Court held that an individual taken into police custody and subjected to questioning must be warned that “he has a right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.” Miranda, 384 U.S. at 479, 86 S.Ct. 1602. With regard to the right to the presence of an attorney, the Court in Miranda expressly recognized the importance of informing a suspect of his right to have an attorney present during questioning. “[T]he right to have counsel present during interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.” Id., 384 U.S. at 469, 86 S.Ct. 1602. As the Court elaborated: [W]e hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascer-tamable assurance that the accused was aware of this right. 384 U.S. at 471-472, 86 S.Ct. 1602. A. Standard for Evaluating Whether a Defendant’s Waiver of Miranda Rights Was Valid Miranda itself provides that a suspect may waive his Miranda rights, but must do so “voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 475, 86 S.Ct. 1602. A court considering a waiver of Miranda rights conducts a two-pronged inquiry under a totality of the circumstances standard. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). First, a court considers the voluntariness of the statement, and whether the waiver was the product of a free and deliberate choice rather than intimidation, coercion or deception. Moran, 475 U.S. at 421, 106 S.Ct. 1135. Second, a court considers the separate and distinct question of whether the waiver was “knowingly and intelligently” made. Id. A waiver of Miranda rights is “knowingly and intelligently” made if it is “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. See also Smith v. Zant, 887 F.2d 1407, 1430 (11th Cir.1989) (en banc) (Kravitch, J.) (the Constitution requires “that the defendant know what he is waiving and the consequences of his decision”). For purposes of a knowing waiver, a defendant need not understand “all the complexities of his fifth amendment rights and of the implications of a decision to waive those rights.” Id. As Judge Kravitch explained in Smith: [A] court need only inquire into whether the defendant understood that he had a right “not to talk to law enforcement officers, to talk only with counsel present or to discontinue talking at any time,” and that “whatever he chooses to say may be used as evidence against him.” Id. (quoting Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987)). The Supreme Court has explained that the “totality of the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.” Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). This approach includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and allows courts “to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved.” Id. In addition, a suspect’s limited intellectual ability factors significantly into the determination of whether there is a valid waiver. See, e.g., Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir.1972); Henry v. Dees, 658 F.2d 406 (5th Cir.1981). For instance, in Cooper, the former Fifth Circuit held invalid the waivers given by two juveniles with IQs between 61 and 67, who read at a second-grade reading level. Id. at 1144-45. The court in Cooper underscored the importance of considering a juvenile’s mental ability as it relates to waiver: The requirement of “knowing and intelligent” waiver implies a rational choice based upon some appreciation of the consequences of the decision.... Here [the defendants] surely had no appreciation of the options before them or of the consequences of their choice [to sign waivers]. Indeed it is doubtful that they even comprehended all of the words that were read to them. Thus, they could not have made a “knowing and intelligent” waiver of their rights. Id., at 1145. See also Smith v. Zant, 887 F.2d at 1430 (affirming grant of writ of habeas corpus on ground that defendant with IQ of 65 and mental age of 10 did not knowingly and intelligently waive rights); United States v. Garibay, 143 F.3d 534 (9th Cir.1998) (defendant’s borderline retardation and inability to understand oral instructions among prerequisite skills for knowing and intelligent waiver). It is the State’s burden at a suppression hearing to prove that the defendant understood his Miranda rights and the consequences of waiving them. However, in a habeas proceeding, the burden shifts to the habeas petitioner to prove— by a preponderance of the evidence — that his purported waiver of rights was ineffective. See Lindsey v. Smith, 820 F.2d 1137, 1149 (11th Cir.1987). Having set forth the relevant § 2254 framework and the law under Miranda and its progeny, the Court now turns to a careful review of the trial court record to determine whether the trial court committed constitutional error in admitting Brown’s July 16, 1991 taped statement at trial. B. The State Court Record The trial court conducted a pre-trial hearing on Brown’s motion to suppress his November 15, 1990 and July 16, 1991 statements to BSO. The parties correctly advised the trial court that the burden of proof with respect to the admissibility of those statements rested with the State. Pet. Ex. 1006(A) at 4-5. Only the July 16, 1991 statement is at issue here, as the trial court ultimately suppressed the November 15, 1990 statement, but permitted the July 16,1991 statement to stand. When Brown gave his first statement on November 15, 1990, Brown was not a suspect in the Behan murder case at that time, and the detectives conducting the interview considered it only to be a witness statement. As such, Brown was not given any Miranda warnings on November 15, 1990. During the interview, Brown stated that Keith Maddox shot Deputy Behan, but then recanted and stated that he himself shot Deputy Behan. Id. at 19. As Brown continued to talk, Sergeant Scheff noted that Brown would start a statement and then jump to something else, was not responsive, and exhibited a “bizarre quality” that gave Scheff “the distinct impression that [Brown] was very much under the influence of narcotics.” Id. at 19-20. At that point, Sergeant Scheff declined to proceed further because he “did not believe in good faith [he] could give [Brown] his rights and expect that he could waive them because he seemed very, very high.” Id. at 21. Sergeant Scheff also explained that “I didn’t know how much of what I had seen on November 15th was the product of intoxication due to cocaine from crack cocaine usage, [or] if any of it was some organic brain dysfunction.” Id. at 31. At the very least, Sergeant Scheff had no doubt that “clearly he was not in possession of all his faculties.” Id. at 125. Further, in his deposition and at the suppression hearing, Sergeant Scheff stated that he was concerned that Brown was “like clay” in his hands. Id. at 124-126. For his part, Sergeant Scheff attempted to clarify this statement and testified at the suppression hearing as follows: I said I wanted to resolve the circumstance, where I was comfortable that we are going to come to true resolution and not get a statement from him, because he was like clay and I could get him to say whatever I wanted him to. Do you understand what happened? I wanted to know at the end of Tim Brown’s interview that Tim Brown confessed. I wanted to know in my heart that he was the one that did it. Id. at 126. Sergeant Scheff did not believe Brown’s statement on November 15, 1990, and thus did not arrest Brown at that time, believing Brown to be “a confused kid.” Id. at 127-129. Rather, after the November 15, 1990 interview, Brown was transported to HRS custody pursuant a juvenile pick-up order in an unrelated juvenile matter. Id. at 23. Sergeant Scheff testified that he did not wish to re-interview or arrest Brown while he was in HRS custody, because “it has been my experience that very often what happens is that HRS workers invoke the rights of the juveniles, and we had to get an opportunity to speak to him.” Id. at 26. The Broward State Attorney’s office kept BSO apprised of Brown’s situation in the Juvenile Detention Center, and BSO monitored Brown’s whereabouts in order to proceed with the plan to interview him. Id. at 31; Pet. Ex. 1006(B) at 267-268. Months later, on the morning of July 16, 1991, the Broward State Attorney’s office contacted Detective Carr and advised him that Brown would be released from the Juvenile Detention Center that day and would await further placement at the Covenant House in Fort Lauderdale, Florida. Id. at 268. Detectives Carr and Thomase-vich then went to the Covenant House, and waited outside for Brown for about half an hour. Id. Brown was indeed released from the Juvenile Detention Center on July 16, 1991, and predictably just as Brown left the Covenant House and was away from HRS workers, Brown was immediately located by BSO detectives in the vicinity of the Covenant House and arrested for the murder of Deputy Behan at around 6:20 p.m. Id. at 27-34. Detective James Carr placed Brown in the police car, at which time Detective Carr informed Brown of his Miranda rights by reading verbatim the following rights from the BSO’s standard issue card, as follows: You have the right to remain silent. You can refuse to answer questions. Anything you say can be used and will be used against you in a court of law. You have the right to speak to an attorney and have him here with you before the police ask you any questions. If you cannot afford an attorney, one will be appointed for you before we ask you any questions. Do you wish to have an attorney? If you decide to answer questions now without an attorney present, you will give up the right to stop answering questions until you speak to an attorney. Have you ever had an attorney or any law enforcement officer prior to this? Are you willing to answer questions without an attorney? Pet Ex. 1006(B) at 272-273 (emphasis added). Detective Carr testified that Brown acknowledged his rights and did not wish to have an attorney, stating “no, not at that time.” Id. at 273. Detective Carr said he asked Brown “have you ever had an attorney or any law enforcement officer prior to this,” and Brown “acknowledged with a ‘No.’ ” Id. Brown was not questioned during transport to the police station, and arrived at the parking lot of the police station at 6:55 p.m. Id. at 276-277; Pet. Ex. 1006C at 367-68. Brown was allowed to use the restroom and was situated in an interrogation room. Id. Once there, Brown was given a' soda, and Detectives Carr and Thomasevich shackled his feet with leg irons. Pet. Ex. 1006(B) at 281-282; Pet. Ex. 1006C at 403. Detective Carr also testified that he and Detective Thomase-vich left the room at one point in time. Pet. Ex. 1006(B) at 274-75. Detective Carr then read Brown his rights from a Juvenile Statement of Rights form, and Brown filled in responses to questions on the form. The Juvenile Statement of Rights form advised Brown as follows: You have the right to remain silent, that is, you don’t have to talk to me or answer any questions if you don’t want to. Do you understand? You have the right to talk to an attorney and have him here with you before we ask you any questions. Do you know what an attorney is? Do you understand? If you can’t afford an attorney and you want one, we will get an attorney for you before we ask you any more questions. Do you understand? If you decide to answer my questions now without an attorney present, you will still have the right to stop answering my questions at any time until you talk to an attorney. Do you understand? Should you talk to me, anything you say can and will be used in a court of law, either for you or against you. Do you understand? Are there any questions? Knowing and understanding your rights, are you willing to answer my questions without an attorney here? Pet. Ex. 89 (emphasis added). See also Pet. Ex. 1006(B) at 276 (rights waiver form admitted into evidence as State’s Exhibit A). Brown signed the form and thereby executed the waiver of his rights by 7:10 p.m., less than fifteen minutes after arriving at the station. See Pet. Ex. 89. At the suppression hearing, Brown presented the testimony of Dr. Elizabeth Ko-prowski, a clinical psychologist, who testified as an expert following the parties’ stipulation concerning her expert qualifications. Pet. Ex. 1006(B) at 180-240. Dr. Koprowski testified that Brown, who was fifteen at the time of his arrest on July 16, 1991, was mildly retarded, with a full-scale IQ of 56, thereby placing him, intelligence-wise, in the lowest 1% of our population. See Pet. Ex. 1006(B), at 180-190. Specifically, Dr. Koprowski testified that she administered standard individual IQ tests to Brown, and that his verbal IQ was 58, his non-verbal IQ was 54, and that his full-scale IQ was 56. Id. at 185. Dr. Koprowski also testified that she reviewed Brown’s school records from 1988, which revealed a similar IQ score in the mentally retarded range. Id. at 182. Dr. Koprowski clarified that although Brown was 15 and in the eighth grade in the Broward public school system, his reading and writing capability was at the third grade level. Id. at 188. Brown’s mathematical ability was even worse, and was below the third grade level. Id. at 189. Dr. Koprowski also administered a psychological test, which indicated that while Brown showed no signs of major mental illness, his responses were “very youthful, not something that a fifteen year old of average intelligence would do, but definitely someone of lower intelligence, very child-like, best way to describe him.” Pet Ex. 1006(B) at 189. Dr. Koprowski testified that she believed Brown could be “easily led by almost anybody.” Id. at 191. Dr. Koprowski stated that Brown’s mental retardation makes him potentially educable, “but not someone who’s going to learn in the school system on his own. He would need special education. For example, he is always going to need some special help.” Id. at 188. Dr. Koprowski further testified that Brown would have the potential ability to understand legal rights in only a “very, very basic way.” Id. at 190. By this, Dr. Koprowski opined that Brown would understand “in a very basic way, yes, that the lawyer was on his side.” Id. at 231. However, she concluded that “based on his prior experience, [Brown] did not fully understand that he could have an attorney present.” Id. at 191. The State, in cross-examining Dr. Ko-prowski, offered evidence of Brown’s school records over the years, which generally indicated that Brown performed extremely poorly in school. Id. at 205-240. For instance, Brown’s school records reveal that he was not promoted every year, and that when he was 11 years old, at a time when Brown should have been in the fifth grade, Brown was still in the third grade. Id. Even after being held back in school, Brown’s performance was still below average. Id. The State, however, did highlight certain school records indicating that in some instances, Brown’s grades were average or even above average. Id. at 205-240. However, the State offered no evidence to suggest what standards were used to determine those grades or to otherwise measure his performance on those instances, and offered no evidence to suggest what, if anything, Brown was actually taught in school. In addition, the school records also reveal Brown’s very poor attendance at school, which in certain years reached such a level that Brown was not in compliance with Broward County School attendance requirements. Id. at 206. In third grade, for instance, Brown missed 52 days, nearly one-third of the school year. In fourth grade, Brown missed 44 days. Id. at 211-212. While the State appeared to argue that the reason for Brown’s poor performance in school was his poor attendance, Dr. Koprowski explained that Brown’s poor attendance is consistent with his mild mental retardation, because “many students who are not able to keep up with the work and are slipping behind not only lose their motivation to go to school, but they are afraid to go to school because they are humiliated, embarrassed or bored.” Id. at 207. In his closing argument, the prosecutor conceded that he was not trying to impeach Dr. Koprowski’s testimony concerning Brown’s IQ level, because Brown “has scored on several tests over different periods of time at this particular level.” Pet Ex. 1006C at 421. Similarly, the trial court found that the state did not impeach Dr. Koprowski. Id. at 442. Further, the trial court specifically found that “for the purposes of this hearing, the IQ is between 54, 58.” Id. at 416. In addition, the trial court made the following additional findings: As I look over this case I see that initial statement made by the Defendant on November 15th is more troublesome to this Court than appears to be to [the State]. And as far as this, as far as this motion pertains to the statement by Mr. Brown on November 15th is concerned the Court will grant that motion. Now we go on to the statement made on July 16th, is it.... There has to be some independent way that the police will make it back to Mr. Brown on that date. Other than that particular statement made on November 15th. Some of the things that I thought were significant were things such as the fact that the police allowed Mr. Brown to be free at one point to go into (sic) the system here, and be let out again. As a matter of fact, I think it happened a couple of times once at least without their knowing, and I find it very difficult to believe that if they really had him as a suspect based upon that first statement, that he would have had such an opportunity. I think there are, however, some problems perhaps for the State regarding the overall facts, and perhaps there will be some difficulty before the jury regarding certain matters such as Mr. McGill and the lack of pursuing Mr. McGill is troublesome to the Court. What I have to determine in my own mind is does it effect this particular motion, and I’ve come to the conclusion that it does not. I find that the intelligence of the Defendant being certainly a consideration for the Court as are a number of things, I think it was the Brewer case in fact cited in your motion, Counsel, brings the totality of the circumstances to the forefront as well as any individual case, and I’m looking at cases here such as Stokes where I’m concerned about the parent going to the police station and not having an opportunity to be with the defendant. I failed to find that particular fact in this case that would conform to, or have this Court conform to the ruling in Stokes versus State. And the intelligence certainly I think is relevant, and in some other cases referring to children as young as ten years old IQ’s may be a little bit higher I think 68, 69, 70 someplace in that area, but it was a ten year-old as opposed to a 15 year old, and that wasn’t sufficient enough to suppress the statement. Although as you mentioned, Counsel, the State did not impeach the doctor, the fact is that I think much of what she said led the Court to believe this defendant had the mental capacity to understand the Miranda warnings that were given to him, and much of what he did not do well in school may have in fact been brought about by his not attending. ... That’s not a problem here again that this Court needs to address. It appears clear that in the first statement [Petitioner] was intoxicated and I see nothing in the statement that drugs were mentioned in Brewer. I see nothing in the second statement that shows signs of that at all. I believe that the defendant freely and voluntary (sic) and knowingly and intelligently waived his rights in the second statement, and as such this Court would rule that the motion in regards to the July statement be denied. Id. at 441-443. Subsequently, at the jury trial, the trial court denied Brown’s request for reconsideration of the issue, and without making any additional factual findings, reaffirmed the decision denying the motion to suppress the July 16, 1991 statement. Pet. Ex. 1006(L) at 1626-1627. C. Analysis Under 28 U.S.C. § 2254(d). In its 154-page closing argument brief, the State did not reference the terms of § 2254 or its enumerated exceptions. Instead, the State argues that Brown has failed to show that the trial court’s findings are not supported by the record, and that this Court “must afford the trial court’s factual conclusions a presumption of correctness.” D.E. 333, at 21. As evidenced above, the trial court made no detailed factual analysis of his findings concerning Brown’s actual understanding of his Miranda rights and of the consequences of waiving those rights. Further, although the Juvenile Statement of Rights form utilized by BSO to advise Brown of his Miranda rights was admitted into evidence during the suppression hearing, (Pet.Ex. 1006(B) at 272-276), the trial court made no findings concerning the adequacy of the warnings given to Brown. At most, in terms of factual findings relevant to the “knowing and intelligent” waiver analysis, the trial court found that (1) Brown’s IQ was “between 54, 58” (Pet. Ex. 1006C at 416); (2) “the State did not impeach the doctor”; (3) Brown’s “not doing well' at school may have in fact been brought about by his not attending”; (4) Brown was not intoxicated or using drugs on July 16, 1991; and (5) Brown “had the mental capacity to understand the Miranda warnings that were given to him.” Id. at 441-443. In terms of mixed findings of law and fact, or conclusions of law, the trial court found that (1) in certain unspecified cases, the statements of juveniles younger than Brown but with IQ’s a “bit higher, I think 68, 69, 70 someplace in that area” were not suppressed; and (2) Brown freely and voluntary (sic) and knowingly and intelligently waived his rights. Id. These two findings, however, are at most mixed findings of law and fact, and are not entitled to any “presumption of correctness” by a federal habeas court, as the ultimate question of the validity of a suspect’s waiver of his Miranda rights is “a legal question requiring an independent federal determination.” Miller v. Fenton, 474 U.S. 104, 106, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). 1. The Trial Court Record Concerning Brown’s Sub-Normal IQ and Sub-Normal Performance at School Weighs Against a Valid Waiver As set forth above, the trial court specifically found that Brown’s IQ was “between 54, 58” and agreed with Dr. Koprowski’s testimony in that regard. Pet. Ex. 1006C at 416. This factual finding is entitled to the presumption of correctness. While the trial court expressly found that Brown’s IQ was between 54 and 58, the trial court for some inexplicable reason refused to consider the effect of Brown’s IQ in its legal analysis when it stated that “I’m not accepting any implication that might involve this defendant in terms of that IQ.” Id. at 416. Of course, while the trial court’s subsidiary and historical factual finding of Brown’s extremely low IQ level is entitled to a presumption of correctness, this Court is not bound by the manner in which the trial court applied (or refused to apply) those facts to the governing law. The State argues that “[t]here can be no question, the trial court’s rejection of Dr. Koprowski’s assessment of Brown’s IQ, as it related to the confession, is supported by the record and the fact that Brown did not attend school on a consistent basis and apply himself while there.” D.E. 333, at 40. The Court, however, does not agree the trial court rejected Dr. Koprowski’s testimony concerning Brown’s IQ, when it specifically adopted that crucial testimony and found that Brown’s IQ was “between 54, 58.” Pet. Ex. 1006C at 416. The State also argues that the trial court made some sort of factual. finding when it found that “much of what he did not do well in school may have in fact been brought about by his not attending.” Id. at 443. However, while the trial court appeared to somehow suggest that Brown’s failure to attend school may have resulted in his low IQ and poor performance at school, the issue of why Brown had a low IQ has no credible relevance or bearing to the issue of whether Brown actually understood his rights as they were explained on July 16, 1991. Instead, what is relevant is the undisputed fact of Brown’s sub-normal IQ, sub-normal performance at school, and sub-normal attendance. If anything, the fact that Brown did not do well in school and did not attend school is consistent with Dr. Koprowski’s testimony and makes it even less likely that Brown had the requisite reading, verbal and other skills necessary to appreciate, the abstract concepts of his Miranda rights and the consequences of waiving them. The evidence offered by the State in this regard in no way contradicts the salient and undisputed facts concerning Brown’s extremely limited intelligence. Moreover, although the State did not even attempt to argue this point, the Court finds that even if the trial court’s statement that it would not accept “any implications ... in terms of that IQ” is considered some sort of factual finding, the Court must conclude that this finding is not entitled to a presumption of correctness, because it is not fairly supported by the record as a whole. See 28 U.S.C. § 2254(d)(8). As the state trial prosecutor himself plainly conceded and as the trial court. expressly found, Dr. Koprowski’s testimony was unimpeached. Pet Ex. 1006C at 421, 442-43. This testimony makes absolutely clear that the fact that Brown’s IQ was between 54 and 58 classified him as mildly retarded and places him in the very lowest 1% of the population, intelligence-wise. The state court record is virtually undisputed in this case that Brown had a mental age of 7 or 8, as his reading, writing and mathematical abilities were at or below a 3rd grade level. Pet. Ex. 1006(B) at 188. There is simply nothing in the record presented to the state court, including the record concerning Brown’s poor performance and attendance at school, which contradicts any of this testimony. Thus, there is simply no basis in the record as a whole for “not accepting any implications” concerning Brown’s extremely limited intelligence. Accordingly, the Court finds, based on its careful review of the record, that the subsidiary factual findings concerning Brown’s extremely low IQ and Brown’s poor performance and attendance at school are entitled to a presumption of correctness, and that these facts weigh against a finding of a valid waiver under the totality of the circumstances analysis. See, e.g., Cooper, 455 F.2d at 1146 (determining two juveniles with IQs between 61' and 67 did not knowingly waive Miranda rights). The Court additionally finds that even if the trial court’s refusal to accept “any implications... in terms of that IQ” was somehow deemed a factual finding, this finding is not entitled to a presumption of correctness, as it is not fairly supported by the record as a whole. 2. The Trial Court’s “Mental Capacity” Finding Is Not Entitled to A Presumption of Correctness The trial court found that Brown had the “mental capacity to understand his Miranda warnings that were given him.” Id. at 442-443. It must be noted that Brown’s “mental capacity,” while relevant, is not the pertinent constitutional standard for reviewing a Miranda waiver, as the ultimate question the Court must answer is not one of Brown’s mere capacity to understand, but whether Brown actually understood the nature of his rights, and the consequences of waiving those rights, on July 16,1991. As with its argument concerning the trial court’s “rejection” of Brown’s IQ assessment, the State primarily maintains that the trial court’s “mental capacity” finding amounts to an adverse determination as to Dr. Koprowski’s credibility, and thus that this Court must reject the doctor’s testimony in the entirety. The Court disagrees. First, the case cited by the State, Bottoson v. Moore, 234 F.3d 526 (11th Cir.2000), does not support this position, as Bottoson holds only that “where there is conflicting testimony by expert witnesses, discounting the testimony of one expert constitutes a credibility determination.” Id., 234 F.3d at 534. Here, there was no “conflicting testimony by expert witnesses.” Moreover, as noted above, the Court cannot conclude that the trial court must have rejected the doctor’s testimony, especially in view of the trial court’s express adoption of the doctor’s crucial testimony that Brown’s IQ level was between 54 and 58 in 1991, and the trial court’s specific finding that “the state did not impeach the doctor.” Pet. Ex. 1006C at 416, 441-43. Dr. Koprowski testified that Brown “would have the ability” to understand “legal rights” in a “very, very basic way,” Pet Ex. 1006(B) at 190 (emphasis added), and that Brown knew that a lawyer was a “person who was on his side.” Id. at 231. The State submits that this testimony is somehow conclusive evidence of Brown’s actual understanding of his core Miranda rights to have an attorney present at interrogation, and of the consequences of waiving those rights. The Court finds that the testimony that Brown would have the potential ability to understand his rights in a very basic way, and that he understood that a lawyer was a “person who was on his side,” is very different from saying that Brown actually understood his Miranda rights when he waived them, based upon the actual warnings given to him and the manner in which they were administered. At best, the record merely supports the proposition that Brown “would have the ability” to understand some of his rights, provided he was given extra help. Therefore, after carefully reviewing the state court record, the Court concludes that the trial court’s finding that Brown had the “mental capacity to understand the Miranda warnings given him” is not fairly supported by the record as the whole under 28 U.S.C. 2254(d)(8), and is not entitled to a presumption of correctness. Moreover, even if presumed correct, the finding that Brown had the “mental capacity to understand the Miranda warnings given him” cannot be accorded significant weight for purposes of determining the validity of Brown’s waiver, as it was not accompanied by any findings concerning whether the warnings actually given to Brown were themselves adequate, or were given in a manner which would allow for the requisite understanding. These important factors, not addressed by the trial court, are discussed below. 3. The Manner in Which the Rights Were Administered to Brown Weighs Against a Finding of a Valid Waiver Although substantial evidence was presented at the suppression hearing concerning the manner in which the Miranda warnings were administered to Brown, the trial court made no specific factual findings in this regard. As set forth more fully above, Detective Carr testified that upon locating Brown outside the Covenant House at 6:20 p.m. on July 16, 1991, outside of the presence of HRS workers, Detective Carr immediately placed Brown under arrest, placed him in the police car, and read Brown his rights from BSO’s standard issue card. Pet. Ex. 1006(B) at 266-277. Detective Carr testified that he arrived with Brown at the parking lot of the station at 6:55 p.m. Once in the station, Brown went to the bathroom and was then situated in an interrogation room. Id. at 274-277; Pet. Ex. 1006C at 367-68. In the interrogation room, Brown was given a soda, and the detectives shackled Brown’s feet with leg irons. Id. at 281-282. Detective Carr also testified that at one point, he and Detective Thomasevich briefly left the room. Id. at 274-277. Finally, once the Detectives returned to the interrogation room, Detective Carr then read Brown his rights from BSO’s standard juvenile waiver of rights form, Brown wrote ‘Tes” and “No” after the various questions on the form about those rights, and signed the waiver by 7:10 p.m. Pét. Ex. 1006B at 276-279. Interestingly, the entire process of situating Brown once he arrived at the station, using the restroom, shackling him, reading the rights to Brown, filling in the responses, and obtaining Brown’s waiver lasted less than 15 minutes from the moment of arrival at the station. The Court is particularly concerned about the timing and perfunctory manner in which the rights were explained to Brown, in view of the testimony that BSO specifically decided to arrest Brown at a time when HRS workers would not be around to invoke his rights for him. Pet Ex. 1006(A) at 26. The Court is also concerned that no steps — other than the cursory reading of the form — were taken to assure that Brown, a mentally retarded juvenile, understood his rights. As discussed above, Sergeant Scheff testified that he was concerned not only that Brown was under the influence of narcotics on November 15, 1990, but that he may have been suffering from some sort of “organic brain dysfunction,” or was at the very least “clearly not in possession of all his faculties.” Pet. Ex. 1006(A) at 31, 125. Detective Scheffs observations likely emanated from Brown’s undisputed mild mental retardation. Further, Sergeant Scheff conceded that one of his concerns during his prior encounter with Brown was that Brown appeared extremely suggestible. Id. at 124-126. Given these clear warning signs, the Court cannot accept the State’s argument that Brown’s waiver was valid merely because BSO detectives testified that Brown “appeared” to understand what they were saying to him in the mere fifteen-minute interval before he signed the waiver form, or that Brown’s waiver was valid merely because Brown ultimately signed the form and “reconfirmed his knowledge” of the Miranda rights on the taped statement subsequently made by him. D.E. 333, at 25-26; 36. Similarly, at the suppression hearing, the State’s case for Brown’s understanding of his rights also boiled down to the fact that he signed the Miranda waiver form. As a general matter, “[a]n express written or oral waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but it is not inevitably either necessary or sufficient to establish waiver.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Given the circumstances discussed herein, the Court is not persuaded that Brown’s signing of the Miranda form and his responses to questions therein are conclusive of Brown’s actual understanding of his rights. First, consistent with Supreme Court case law, the mere “recitals” of a mentally retarded 15-year old as to his understanding of his constitutional rights has little weight, particularly where there is other evidence indicating a lack of understanding. In Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), the Supreme Court rejected an argument similar to the State’s argument in this case that Brown’s recitals on the form are somehow conclusive of the issue of waiver, stating: [W]e are told that this boy was advised of his constitutional rights before he signed the confession and that, knowing them, he nevertheless confessed. That assumes, however, that a boy of fifteen, without aid of counsel, would have a full appreciation of that advice and that on the facts of this record he had a freedom of choice. We cannot indulge those assumptions. Moreover, we cannot give any weight to recitals which merely formalize constitutional requirements. Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. Id. at 601, 68 S.Ct. 302. In addition, several courts have held that the fact that a juvenile suspect has a sub-normal IQ, and that the rights are merely read to the suspect verbatim, without the concepts being carefully or fully explained, or the suspect’s answers being explored, weighs very strongly against a finding of waiver. For instance, in Smith v. Kemp, the expert testified that the defendant with an IQ of 65 and mental abilities in the lowest 2% of the population would possibly have understood a Miranda warning if it were properly explained to him, but the police did not take that time and did not provide the necessary explanation. Smith, 664 F.Supp. 500, 504 (M.D.Ga.1987), aff'd, Smith v. Zant, 887 F.2d 1407 (11th Cir.1989). In the absence of that explanation, the district court found that the defendant, whose mental abilities were equivalent to that of a 10-year old child, did not knowing and intelligently waive Miranda rights and was entitled to habeas relief. Id. On appeal, an equally divided en banc Eleventh Circuit affirmed the district court’s decision. See Smith, 887 F.2d at 1407. Likewise, in Henry v. Dees, 658 F.2d 406 (5th Cir.1981), the Fifth Circuit affirmed the granting of habeas relief to a petitioner who was an educable mental retardate with an IQ between 65 and 69, and whose reading skills were at the second grade level. As the Fifth Circuit explained: When persons of markedly limited mental ability such as Henry, are questioned without the aid of counsel, issues of ‘suggestibility and possible overreaching are raised’ ... Extra precautions must be taken. It must be painstakingly determined that they comprehend what events are transpiring. In addition, the presence of counsel should be assured absent an unmistakable, knowing waiver of that assistance. Henry, 658 F.2d at 411. See also Cooper, 455 F.2d at 1146 (rejecting argument that 15 and 16-year old brothers with IQs between 61-67 and 2nd or 3rd grade reading levels merely “appeared” to understand rights). In this case, Brown’s IQ was materially lower, and his intelligence even more limited, than that of the defendants in each of the above cases. The State gives no reason for why the Court should ignore this case law indicating that the perfunctory reading of a rights form, without any further explanation, to a mentally retarded juvenile, is a factor which weighs against a finding of waiver, or for instead crediting in favor of the decision in United States v. White, 451 F.2d 696 (5th Cir.1971). Here, as discussed more fully below, the juvenile statement of rights form used by BSO did not advise Brown of his rights in any detailed manner, and the form included a space next to each question for Brown to merely provide a “yes” or “no” response, without more. Detective Carr read the form quickly to Brown without providing any explanation of those rights and without exploring Brown’s responses in any way. Indeed, while the State argues that Brown “reconfirmed his knowledge” of his rights on his July 16, 1991 taped statement, the tape recording clearly demonstrates that Detective Carr read the rights to Brown in an extremely cursory fashion, and on at least one occasion, did not even provide Brown with a chance to answer the question before moving on to the next question. Unlike the circumstances presented above, in White the defendant was not a juvenile, and while the defendant there claimed he had a “below average IQ,” there is no indication in the record what that IQ actually was, or whether it came even close to Brown’s extremely low IQ of 56. Id., 451 F.2d at 700-701. Moreover, unlike the case at bar, in White the court found it significant that the defendant testified at trial “as to the events [in connection with the reading of the rights] and indicated an understanding of those rights.” Id., 451 F.2d at 700. Similarly, the State provides no reason why this Court should rely on certain decisions in other circuits, including United States v. March, 999 F.2d 456 (10th Cir.1993), where the defendant was neither a juvenile nor had an IQ which placed him in the mentally retarded range, or Henderson v. DeTella, 97 F.3d 942 (7th Cir.1996), where the defendant was not a juvenile and actually evidenced an understanding of his rights by declining to make a statement on his first encounter with police, or Correll v. Thompson, 63 F.3d 1279 (4th Cir.1995), a case which also did not involve a juvenile defendant. While the trial court did not address any of the case law set forth above in his findings, it did appear to rely on certain unnamed cases “referring to children as young as ten years old IQ’s may be a little bit higher I think 68, 69, 70 someplace in that area, but it was a ten year-old as opposed to a 15 year old, and that wasn’t sufficient enough to suppress the statement.” Pet. Ex. 1006C at 442. However, neither the parties nor the Court could identify any such pertinent precedent, involving circumstances such as those present in this case, that would be controlling. The Court, having considered the state court record, the absence of any specific findings by the trial court on this issue, and the pertinent federal law, finds that without any explanation of the rights, or any inquiry into Brown’s responses, Brown’s “Yes/No” responses, the recitals of a 15-year old juvenile with an IQ between 54 and 58, in response to the perfunctory reading of the rights form, are not sufficient to establish the requisite understanding required for a constitutional waiver. Rather, the Court finds that the record concerning the cursory reading of the rights form to Brown, a mildly retarded juvenile, in a remarkably swift process wherein a waiver was obtained within fifteen minutes from the moment Brown arrived at the station, and wherein no steps were taken to explain the rights to Brown, even though BSO suspected something was “not right” with him, clearly weighs against a finding of a valid waiver. See Smith, 887 F.2d at 1434 (noting as a significant factor that no extra steps were taken to explain the rights form to suspect with IQ of 65 and that “the entire process of securing [the] waiver and obtaining his confession took not over thirty minutes at the longest.”). 4. The Actual Warnings Given to Brown Do Not Support a Finding of A Valid Waiver Under the Circumstances Presented Here The trial court did not make any specific findings concerning the adequacy of the warnings given to Brown. Obviously, any determination that Brown knowingly and intelligently waived his rights depends in part on whether Brown’s core Miranda rights were actually conveyed to him. Smith, 887 F.2d at 1430. As set forth more fully above, Brown was informed of certain rights at the time he was located by BSO near the Covenant House, and then again after he arrived at the station. Detective Carr testified that he read Brown his rights verbatim from the standard issue card used by BSO in 1991, which in pertinent part informed Brown that “you have the right to speak to an attorney and have him here with you before the police ask you any questions,” and that “[i]f you decide to answer questions now without an attorney present, you will give up the right to stop answering questions until you speak to an attorney.” Pet. Ex. 1006(B) at 272-273 (emphasis added). Less than one hour later, Detective Carr read Brown his rights from BSO’s standard juvenile waiver of rights form. The juvenile “Statement of Rights” form utilized by BSO in 1991 informed Brown in pertinent part that “You have the right to talk to an attorney and have him here with you before we ask you any questions.” See Pet. Ex. 89. See also Pet. Ex. 1006(B) at 276. The rights form also stated that “If you decide to answer my questions now without an attorney present, you will still have the right to stop answering my questions at any time until you talk to an attorney.” Id. Finally, the rights form advised Brown that “[s]hould you talk to me, anything you say can and will be used in a court of law, either for you or against you.” Id. a. Brown’s Right to Discontinue Questioning at Any Time Was Not Reasonably Conveyed to Him To begin with, the initial warning that Brown would “give up the right to stop answering questions”, is not an accurate reflection of Brown’s right to cease questioning at any time, as articulated in Miranda. “The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” Miranda, 384 U.S. at 445, 86 S.Ct. 1602. Brown was absolutely misinformed in this regard, even though the rights waiver form administered less than one hour later correctly advised Brown of his right to cease questioning. This correction, however, was made without any subsequent explanation or clarification advising Brown to disregard the information incorrectly provided to him less than one hour earlier. Under these circumstances, the Court cannot conclude that Brown’s “core” Miranda right “to discontinue questioning at any time” was reasonably conveyed to him. Smith, 887 F.2d at 1430 (quoting Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987)). Thus, the Court finds that the contradictory nature of the information being provided to Brown, a mildly retarded juvenile, within the course of a single hour, concerning his right to discontinue questioning at any time, with no clear explanation or subsequent clarification, is a factor the Court may consider, and weighs against a finding of a valid waiver. b. Brown’s Right to an Attorney Present During Questioning Was Not Reasonably Conveyed to Him In addition, as noted above, Brown was advised that “you have the right to talk to an attorney and have him here with you before we ask you any questions.” Pet. Ex. 89 (emphasis added). Although the trial court made no specific findings on this issue, it must be noted that conspicuously absent from the warnings given to Brown is any specific warning of Brown’s right to an attorney during questioning. At best, this juvenile rights waiver form, which presumably was intended to make the warnings easier for juveniles to follow and understand, requires Brown, a mentally retarded 15-year old with a mental age of 7 or 8, to somehow infer from the entirety of the form read to him in a cursory manner that he has the right to an attorney not only before BSO asks him questions, but during that questioning. Again, as the Court in Miranda unambiguously held: [A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have a lawyer present with him during interrogation.... As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right. 384 U.S. 436 at 471-472, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Of course, the Supreme Court has never indicated that Miranda requires any precise formulation of the warnings given criminal defendants. “Miranda itself indicates that no talismanie incantation is required to satisfy its strictures.” California v. Prysock, 453 U.S. at 359, 101 S.Ct. 2806. Instead, the inquiry for reviewing courts is to determine whether the warnings reasonably convey to a suspect his rights as required by Miranda. Id. at 361., 101 S.Ct. 2806 However, while no “talismanie” language with regard to the precise wording of the warnings is required, several decisions of the Supreme Court have specifically recognized the importance of informing suspects of their right to the presence of counsel during custodial interrogation. See Duckworth v. Eagan, 492 U.S. 195, 204, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (holding that Miranda requires, among other things, that “the suspect be informed, as here, that he has the right to an attorney before and during questioning”); California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (holding that warnings were adequate since the defendant “was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one”); Fare v. Michael C., 442 U.S. 707, 717, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (reaffirming principle that “to use statements obtained during custodial interrogation of the accused, the' State must warn the acc