Opinion
No. 37280.
Filed June 5, 1970.
1. Criminal Law: Confessions. Where the police or prosecutors know that a defendant, formally charged with a felony, is represented by counsel who has requested that no statements be taken from the defendant; and where the defendant, after being advised of his Miranda rights, has unequivocally asked for his attorney; statements deliberately elicited from the defendant by custodial interrogation designed to produce incriminating statements, and undertaken before the defendant has been given an opportunity to consult with his lawyer, are inadmissible, in the absence of an effective waiver. 2. Criminal Law: Constitutional Law: Confessions. The use of any confession obtained in violation of the due process clause requires reversal of the conviction even though unchallenged evidence adequate to convict remains.
Appeal from the district court for Dodge County: ROBERT L. FLORY, Judge. Reversed and remanded for further proceedings.
Marer Lazer, Michael L. Lazer, and Bennett G. Hornstein, for appellant.
Clarence A. H. Meyer, Attorney General, and James J. Duggan, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
The defendant, Daniel Johns, was found guilty of grand larceny by a jury and was sentenced to 3 years in the Nebraska Penal and Correctional Complex. The defendant has appealed, and the crucial issues involve constitutional rights to counsel and against self-incrimination.
On April 1, 1968, merchandise was stolen from a loading dock area in Fremont, Dodge County, Nebraska. On the same day, a complaint and information was filed against the defendant charging him with the felonious theft of three Singer sewing machines. On April 3, 1968, the defendant was arrested in Omaha, Nebraska, by two officers of the Omaha police department on an arrest warrant received from Dodge County, Nebraska. The time of the arrest was about 10:30 a.m. After the officers read the warrant to him, the defendant asked if he could call his lawyer. They advised him that he could and he instructed the woman present to try to get hold of his lawyer. The arresting officers took the defendant to the Omaha police department. At about 1:30 p.m., Sgt. Petersen of the Fremont police department and Trooper Hansen of the Nebraska State Patrol contacted the defendant at the Omaha police department. Both officers were investigators with their respective law enforcement agencies. The defendant was taken to a room in the Omaha police station by the two officers. At 1:45 p.m., Sgt. Petersen read a full rights advisory form to the defendant. The defendant acknowledged that he understood the rights being explained and answered "yes" to the question as to whether he wished to waive his rights and give a statement. In response to the first question asked by Sgt. Petersen after the reading of the rights advisory form, the defendant responded: "I would like to have my attorney present." Officers Petersen and Hansen then stopped the interrogation, had the defendant cross out the affirmative answer to the question as to waiver of constitutional rights, and write on the advisory form: "I would like to have my attorney present."
The officers then handcuffed the defendant, placed him in a patrol car, and took him to Fremont, Nebraska. They arrived in Fremont at approximately 2:45 p.m. The defendant was taken to the detective bureau in the Fremont police department. The two officers and the defendant were seated around Sgt. Petersen's desk. The defendant was asked to remove his shoes which were taken out of the room for comparison. Thereafter for 30 minutes to an hour, in the presence of the defendant, the officers examined and discussed between themselves the contents of defendant's wallet and personal belongings but ignored the defendant.
At approximately 3:55 p.m., Sgt. Petersen again read to the defendant the complete rights advisory form. At this time, the defendant responded affirmatively to all questions including the question: "At this time do you wish to waive your right to remain silent and your right to have an attorney here and visit with me and give me a statement about this arrest?"
After he had requested the presence of his attorney in Omaha, the defendant did not say anything to indicate affirmatively that he wished to talk further or wanted to make a statement; nor did he do anything to indicate that he had changed his mind about having an attorney present before the rights advisory form was again read to him at 3:55 p.m. Officer Petersen testified that he thought the defendant might want to change his mind, and in answer to the question: "You were going to keep trying anyway until he did, is that right?" said: "Yes, I kept trying."
The defendant's response to the questions asked at the interrogation commencing at 3:55 p.m. at first were exculpatory. The officers refused to pay any attention to these statements, told him they were not going to listen to that kind of stuff, and did not write them down. At approximately 4:50 p.m., the defendant began to give his confession, which was completed at approximately 5:40 p.m.
Meanwhile, the defendant's attorney had telephoned to Fremont and advised the county attorney of Dodge County that he was representing the defendant and that he did not wish to have the defendant questioned. The county attorney thought that he received the call sometime between 3 and 4 p.m. The county attorney at that time agreed to call the police department and advise them that defendant's counsel did not wish to have the defendant questioned. The county attorney did not call the police until just after the defendant's statement had been completed at 5:40 p.m. At that time he gave them the message.
At a hearing outside the presence of the jury, the trial court first determined that the Miranda warnings were given; that the defendant voluntarily waived his constitutional rights; and that the confession was voluntarily made. The court overruled defendant's objections and admitted the confession into evidence.
The constitutional problems here involve Fifth and Sixth Amendment issues. They also involve both pre-Miranda and post-Miranda rules. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, was decided in 1959, some 7 years prior to Miranda. In the Spano case, it became settled that a defendant formally charged with a felony is entitled to counsel at every step of the proceedings and that a confession obtained at a secret interrogation is involuntary and inadmissible. The Spano rule was followed by this court in State v. Longmore, 178 Neb. 509, 134 N.W.2d 66. We said: "A secret interrogation of a defendant charged with a felony, when the accused has asked for and been denied the presence of his counsel, is a violation of his constitutional rights. A confession obtained in violation of the defendant's constitutional rights is involuntary and inadmissible in evidence."
In May of 1964, another federal landmark case was decided. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. That case held that incriminating statements deliberately elicited from a defendant after indictment and in the absence of his attorney, deprived the defendant of his right to counsel, and such statements could not constitutionally be used against him at trial. In June 1964, the now famous case of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, followed. Escobedo extended constitutional rights to counsel to a situation prior to indictment, where the investigation has begun to focus on a particular suspect and he has been taken into custody. The Supreme Court said there: "We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer."
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974, was decided in 1966. It continued and expanded these principles in the area of custodial interrogation and the right to counsel. The language of Miranda itself is revealing. "The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. * * * If the individual states that he wants; an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent."
The state cases following Spano, all dealing with pre-Miranda trial situations, clearly demonstrate the development and interpretation of the constitutional right to counsel in New York. See, People v. Donovan, 13 N.Y.2d 148, 193 N.E.2d 628 (1963); People v. Failla, 14 N.Y.2d 178, 199 N.E.2d 366 (1964); People v. Gunner, 15 N.Y.2d 226, 205 N.E.2d 852 (1965).
In People v. Arthur, 22 N.Y.2d 325, 239 N.E.2d 537 (1968), the New York rule as to pre-Miranda cases was set out. "Once the police know or have been apprised of the fact that the defendant is represented by counsel, or that an attorney has communicated with the police for the purpose of representing defendant, the accused's right to counsel attaches, and this right is not dependent upon the existence of a formal retainer." The court also said: "There is no requirement that the attorney or the defendant request the police to respect this right of the defendant."
The same principles have been applied to post-Miranda waiver situations. In Commonwealth v. McKenna, 244 N.E.2d 560 (Mass., 1969), the Massachusetts court held inadmissible any part of the statements obtained by interrogation after the defendant's attorney had called the police station to advise them that the attorney wished to be present at the interrogation of the defendant. In that case, the defendant had asked his aunt to call his lawyer at the time of arrest. He had signed a waiver of rights the evening before which recited: "I do not want a lawyer at this time." He had not accepted the use of the telephone, and had not at any time asked the police for a lawyer, although Miranda warnings were given to him on three occasions, including the one just before interrogation. The court said: "Rights to remain silent and to assistance of counsel may be waived but cannot be forfeited." See, also, People v. Ireland, 75 Cal.Rptr. 188, 450 P.2d 580 (1969); United States v. Priest, 409 F.2d 491 (5th Cir., 1969); State v. Word, 80 N.M. 377, 456 P.2d 210 (1969); State v. Kelly, 439 S.W.2d 487 (Mo., 1969).
In the McKenna case, the telephone call was made to the police station, while in the case before us, the telephone call was made to the county attorney. Where a defendant's right to counsel is effectively invoked when his counsel telephones a police officer on the desk, it should, obviously, be invoked as to a defendant formally charged with a felony when his counsel calls the county attorney who is in charge of the entire prosecution. Under the circumstances here, either one has a duty to convey the message immediately to the appropriate police officers.
The defendant not only asked to telephone his lawyer at the time of arrest, he again requested the presence of counsel orally and in writing at the first interrogation in Omaha at 1:45 p.m. Although the defendant did not at any time thereafter say or do anything to indicate affirmatively that he had changed his mind about having his attorney present, and although his attorney had telephoned to assert defendant's rights, nevertheless, the same police officers at 3:55 p.m. repeated the Miranda warnings and recommended the interrogation which ultimately resulted in the confession.
We hold that where the police or prosecutors know that a defendant, formally charged with a felony, is represented by counsel who has requested that no statements be taken from the defendant; and where the defendant, after being advised of his Miranda rights, his unequivocally asked for his attorney; statements deliberately elicited from the defendant by custodial interrogation designed to produce incriminating statements, and undertaken before the defendant has been given an opportunity to consult with his lawyer, are inadmissible, in the absence of an effective waiver.
Where both the defendant and his counsel have previously attempted to invoke the defendant's constitutional right to counsel; then at the very least, a "heavy burden" rests on the state to demonstrate that the defendant knowingly and intelligently waived his right to counsel. On the facts in this case, that burden was not met.
The Miranda warnings are not intended to be merely rituals to be incanted to a defendant repeatedly until the proper answers are given. Neither does the fact that the proper answers to a rights advisory are ultimately received, automatically constitute a waiver and forfeit all constitutional rights previously invoked. Repetitions of advisory warnings are not a satisfactory substitute for granting an unequivocal request for counsel.
The action of the trial court in overruling the objections to the confession and statements of the defendant was in error and the confession or statements were inadmissible.
The use of any confession obtained in violation of the due process clause requires reversal of the conviction even though unchallenged evidence adequate to convict remains. State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965); Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951).
The judgment is reversed and the cause remanded to the district court for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.