*1 DANIEL, Jr., Appellant Alvah R.
(Defendant), Wyoming, Appellee
The STATE of
(Plaintiff).
No. 5553.
Supreme Wyoming. Court of
April *2 Honaker, Cheyenne,
Richard D. W. and Goody, Defender, Keith Asst. Public Jack- son, for appellant. Freudenthal, Gen., Atty.
Steven F. Ger- Stack, Deputy Gen., Div., ald Atty. A. Crim. Johnson, Sr., Gen., Allen Mi- Atty. C. Asst. Hubbard, Gen., Atty. Chey- chael L. Asst. enne, Ryckman, County Jere and Atty., Reese, Deputy Atty., Robert J. County River, for appellee. Green ROSE, J., RAPER, Before C. and THOM- AS, BROWN, and ROONEY JJ.
BROWN, Justice. jury A guilty found of involun- tary sen- manslaughter.1 judge district tenced to a term in the peniten- tiary years of not less than 19 and not more years. than 20 urged appeal The issues are: case, did “1. Under facts of this violate the fed- Appellant’s officers eral and state constitutional counsel, self-incrimination, against due of law process obtaining state- him ments from after he made several inquiries about to counsel ignored the police inquiries? those the facts of this 2. Under did discretion by trial court abuse its sentenc- of- years to 19-20 Appellant for the involuntary manslaughter, fense of sentence, does such a severe under case violate federal and facts of this state done, Appellant causing charged the same to be the information son or kills being, purposely with three alternate counts of in the murder human or whoever officer, degree 6-4-101(a), premeditated any peace first in violation of W.S. § malice kills employee acting 1977: or fireman corrections duty, guilty first of murder in the line of purposely premeditated “Whoever and with degree.” malice, of, perpetration attempt or in the or Appellant charged kidnapping in was also perpetrate assault, arson, any rape, sexual 6-4-201, robbery violation of W.S.1977. burglary, § by administering poi- said attorney present.” Appellant never punishment bans on cruel and unusual Wyoming unequivocally Art. Consti- wanted § discussion present. tution?” There was considerable Ap- attorney. to an about We will affirm. said, necessary, “If it’s that’s be- pellant Helen Bunning, an instructor at Western want to be taken advan- cause don’t Wyoming College, died from a stab wound tage anything of or like that.” Chief Hawk *3 college during early received at appellant told that he would not talk to him September Sep- afternoon of 1980. On willing further unless he was to waive his 19, 1980, appellant presented tember him- “Well, rights. appellant The said: I’d Springs self at the office of the Rock Chief get soon it taken care of. I waive the Police, Appellant Russell Hawk. told G. (Chief interrupted appel- Hawk right to—” secretary purpose Chief Hawk’s of his mid-sentence). juncture At this lant police department, visit to the and the sec- provided. Chief Hawk waiver form retary then told the Chief that there was an saying, prefaced reading of the waiver eyewitness individual who said he was an I’d rather have the information if “And stabbing college. at the Chief Hawk violating your rights.” Appellant it means individual, agreed talk and asked form copy was furnished a of the waiver secretary investigators to have some read the Grymes proceeded to and Officer appellant come into the office. The then follows: waiver as went his wife into Chief’s office with Okay, sir. These “POLICE OFFICER: responsi- and children and he was said that rights guaranteed under the your college. ble for the accident at the you any we ask Constitution. Before talking he was appellant asked the if questions, you your have to understand stabbed, appel- lady about the who was rights, okay? lant he was total- responded by saying that Okay. “MR. DANIEL: ly responsible for the accident. right You have the “POLICE OFFICER: Before any questioning by police, appel- to remain silent. Understand that? lant had already killing confessed to Helen Yes, “MR. DANIEL: sir. Bunning accidentally, the crime of which he And, in the “CHIEF HAWK: it’s 2:22 ap- convicted. The Chief then advised on September afternoon pellant of his rights Miranda and asked for Okay. Let’s see. “POLICE OFFICER: a recorder. There was no further conversa- go again. I’ll over that You have the Grymes tion until Officers Ellis and came right Anything you say to remain silent. into the Chief’s office with the recorder. against you in Do can be used Court. Conversations, questions and answers there- understand, that, sir? you ap- were recorded. The Chief asked Yes, “MR. DANIEL: sir. pellant preliminary questions, some such as You have the “POLICE OFFICER: address, correct name then complete lawyer to talk to a for advice before we appellant reviewed with and the other offi- him you any questions, ask and to have appellant cers what told previously you during questioning. you Do Appellant disagree him. did not with the that, sir? understand narration, Chief’s emphasized but that the stabbing Yes, was an accident. “MR. DANIEL: sir. you If cannot af- “POLICE OFFICER: beginning Near the of the interview lawyer, appointed one will be ford a Chief Hawk told that based on any questioning, you if wish. you before said, what he had initially appellant would you that, Do understand sir? be taken custody charged into Yes, “MR. DANIEL: sir.
homicide. The Chief said that would be you arrested whether or not he made a If decide to “POLICE OFFICER: now, Early appel- statement. in the interview questions lawyer answer without a lant “probably present, you your right said he would like will still have to have an stop answering got time. You also “CHIEF HAWK: I’ve this one filled answering stop have the out a little bit for you, and while I am you lawyer. you time until talk to a Do out, filling one you would read me that, understand sir? rights that waiver of down here? Yes, “ME. DANIEL: sir. I “MR. DANIEL: have read this state- Now, HAWK: have answer- you “CHIEF rights, ment of I understand what ‘Yes, sir,’ ed questions. to all of these willing are. am to make a would Okay, you ask— questions. statement and answer I do Okay, “POLICE OFFICER: what lawyer not want a at this time. I under- would like to do now is ask for a waiver. doing. stand and know what I am No words, “CHIEF HAWK: In other promises or threats have been made to you waiver have read this (mispronounced)— me or coercion So, it you again statement. would read “CHIEF HAWK: Coercion. you now that all ques- answered *4 “MR. DANIEL: —coercion has been used reading tions with Mr. Grymes it? against me. you just “POLICE OFFICER: If would “CHIEF HAWK: That’s like a threat or you any read that waiver and if questions something along that line. with Okay, about it. mind, you sign would full your “MR. May DANIEL: I still —if I can’t I name here? lawyer may appointed afford a still be — lawyer? “Okay, any interruptions any- without Well, “CHIEF HAWK: we wouldn’t talk us, thing go else from would you back you point to at the that you want to have and start with about the time date and attorney. would discuss it started, go right this incident and you now. You do have to have through, you and we will not even ask now, time, representation at this any questions you get until finished. thing. just but later on in the That’s if Then, you questions we will ask what you going want an we’re not got concerning we’ve it.” talk you right just going now. We are put you things question in the bucket and shut There is no down. totally respon that he was initial confession stabbing Bun- Okay. “MR. DANIEL: sible for the death of Helen ning Appellant was not And, was admissible. “CHIEF HAWK: that’s whether statement, you custody. make a statement or not. Before volunteered knew was that only thing Chief Hawk Okay, “POLICE you OFFICER: that — don’t, waiver, eyewitness claimed to be an by signing you don’t Alvah Daniel your rights. waive He did not know that Mr. to the incident. Bunning, any had killed Mrs. right. “MR. DANIEL: Daniel waive ap suggestion that Chief Hawk tricked “POLICE OFFICER: While we are talk- now, pellant confessing supported by into is not it, But, you agree okay? if if Furthermore, Hawk had any point, you get want to the record. attor- ney; you stop talking if want to obligation stop no the confession —what- ever you you are the man who of his constitutional appellant advise the want — decisions, makes the not us. That’s what caution, rights. Out of an abundance of it comes down to. to termi upon Chief Hawk took it himself Well, “MR. I’d like to talk. DANIEL: of the the first volunteered confession nate explain story I’d like to side of the choosing protect appellant, thereby right now. Un from further incrimination. appellant here, “CHIEF HAWK: Yes. the initial der view of the facts of the was admissible. if confession Okay, you “POLICE OFFICER: State, Okla., (1966). Lung would— 420 P.2d “ * * * ‘Interrogation,’ conceptualized his initial confes- After made sion, opinion, in the Miranda must reflect a express ques- conducted no compulsion beyond measure of above and tioning regarding the incident until custody that inherent in itself. of his appellant had been advised twice until after he read and the Miranda safe- “We conclude however, signed Appellant, a waiver form. person guards play come into whenever a although had been taken into custody, custody subjected express to either formally placed he had not been under ar- equivalent. or its questioning functional rest, he was told he be arrested for say, ‘interrogation’ would That is to the term homicide. He therefore knew that he was express under Miranda refers not not free to leave the station. but also to words or questioning, part police (other on the of the
actions normally than those attendant to arrest that the know custody) police should The genesis large body of law reasonably likely to elicit an incrimi- developed years the last fifteen nating response suspect. from the regard to custodial is Miranda portion latter of this definition focuses 384 U.S. 86 S.Ct. primarily upon perceptions of the sus- L.Ed.2d 694 cert. denied 396 U.S. pect, police. rather than the intent of the Miranda set forth proscriptions and limita- »ft * [*] >1 tions mandated by the Fifth and Sixth present In the con Amendments to the United States Constitu- express questioning regarding ducted no *5 tion regarding interrogation. custodial The reading the incident until after the second Supreme held Court Miranda the warnings appel of the Miranda and after * * * that, Constitution mandates “no person signed lant had read and the waiver form. compelled shall be in any criminal case to be Furthermore, reading of before the second himself,” a witness against and that “the warnings, police the Miranda the did not * * * accused have the assistance of coun- say anything they or do which should have Court, however, sel.” Supreme also reasonably likely known was to elicit an said: incriminating response. Appellant admit “ * * * import The fundamental pressured ted that no one him to talk at
privilege while an individual is in custody time. Consistent the rule in Rhode is not whether he is allowed to talk to the Innis, supra, Island v. here warnings without the benefit of subjected “interrogation” was not to until counsel, and but whether he can be inter- warnings given after Miranda had been rogated. requirement There is no he signed twice and had the waiver. police stop person who enters a Because of desires re- unclear station and states that he to wishes con- garding an there was considerable crime, fess person to a or a who calls the right discussion about his to an police to offer a confession or any other right. and the waiver After con- ” * * * statement he to desires make. context, sidering the entire conversation Arizona, supra, Miranda v. 384 U.S. at including tapes transcript, and the we 86 S.Ct. at at believe that initiated conversation
Special procedural safeguards
provoked
inquiry regarding
are
further
required
suspect
simply waiving
right
where the
is
his
attorney.
to an
said,
taken into custody,
you
but rather where a sus Hawk
“But we won’t talk to
about
pect in custody
subjected
interroga
to
thing
you
willing
unless
to waive
said, “Well,
tion.
In the
rights.”
recent case of Rhode Island v. your
Appellant
I’d like
Innis,
291, 300-301,
get
U.S.
it taken
of you
S.Ct.
care
know.” Chief
1689-1690,
said,
(1980),
L.Ed.2d
307-308
going
try
Hawk
“I’m not
or
want
the Court
advantage
you.” Appellant
mandated:
take
inter-
said, “Well,
rights,
as
thé accused
rupted
get
may
validly
I’d
soon
himself
right
rights
it taken
I waive
to—.”
waive his
and respond
interroga-
care of.
* * *
tion,
Court has strongly
indi-
no real
here of
question
There is
safeguards
cated that additional
are nec-
mind;
appellant changing his
he never
counsel;
when
accused
essary
asks for
said,
made up his mind until he
“I’d like to
we now hold that when
accused
explain
right
story
side
now.”
right
has invoked his
counsel
to have
With that
he
statement
indicated
had
present during
interrogation,
custodial
up
right
made
his mind to waive his
to an
right
valid waiver of that
be es-
cannot
Zerbst,
attorney.
In Johnson v.
304 U.S.
by showing
tablished
he re-
only that
458, 464,
1019, 1023,
L.Ed.2d
sponded
police-initiated
to further
custo-
1461, 1466,
A.L.R. 357
Court
dial interrogation even if he has been
maintained:
rights.
advised
his
hold
further
*****
ordinarily
A waiver is
an inten-
accused,
Edwards,
that an
such
having
as
tional relinquishment or abandonment of
expressed
po-
desire to
deal with
privilege.
a known
The determi-
only through counsel,
lice
subject
is not
nation of whether there
been an in-
has
further
by the authorities
* * *
telligent
depend,
waiver
must
until counsel has been
made available
case,
each
upon
particular
facts and
him, unless the accused
initiates
himself
surrounding
circumstances
in-
communication, exchanges,
further
cluding
background,
experience, and
police.”
conversations
Edwards
conduct of the accused.”
484-485,
supra,
old,
Appellant
years
here was 25
1884,68
101 S.Ct. at
L.Ed. at 386.
equivalent
high
obtained the
aof
school
If it is difficult for the
offi
education. He was a member of the iron
suspect
cer
determine whether a
indeed
workers union and
competent
felt himself
intends to
invoke
to have an attor
to enter
apprenticeship.
He was fully ney present,
may
the officer
clarifica
seek
advised of his
twice
least
before
desires,
long
of the suspect’s
tion
as he
police questioning
acknowledged
disguise
does not
as a sub
clarification
he understood each of
*6
rights.
the individual
terfuge for
coercion
intimidation. Giaco-
He was
and
he
coherent
aware of what was
Alaska,
State,
(1981).
mazzi v.
The Court said:
enter into other
ties could not thereafter
***** AitlKMgh
interrogation
we have held
and until
defend-
unless
reopened
subject.”
initially
advised of his Miranda
ant had himself
report
From the
also addressed the court.
State,
This case
supra,
Dryden
493.2
judge
trial
was thor-
hearing,
here, however,
Dry-
distinguishable
is
from
concerning
oughly advised
den
No fur-
particulars.
least three
any mitigat-
aware of
background and was
place
appellant
ther
took
until
ap-
The court sentenced
ing considerations.
waiver;
say
never did
signed
appellant
less than 19 nor
pellant to a term of not
an
that he wanted
qualification
without
years
Wyoming
than 20
in the
State
more
pro-
appellant
initiated and
attorney;
Appellant asserts
Penitentiary.
time he waived
inquiry
voked further
at the
because
was an abuse of discretion
sentence
attorney.
to an
judge
did not follow
sentenc-
the trial
contending
Appellant seems to be
and did not state
reasons
standards
stop ques
that because the
did not
for the sentence.
tioning him after he mentioned the word
we have been asked
years
In recent
everything he said after that
“lawyer," that
in numerous cases.
review sentences
should have been excluded.
It must be
State,
179 State, Sanchez v. In Wyo., ing 592 P.2d 1130 sentence of not less than 19 years nor (1979), this Court vacated the sentence and than years. more 20 We cannot improve on remanded the matter for further sentencing what Justice Roberts said in Common proceedings. That decision was based on Riggins, wealth v. 115, 377 140, 474 Pa. A.2d judge’s trial failure to proba- consider (1977), 147 regarding why judges trial decision, tion before sentencing. In that explain should their reasons for sen this Court directed that the American Bar imposed. tence Justice, Association Standards for Criminal “The requiring benefits of the trial court Probation, and other sources “be given to state its reasons imposition for the proper probation consideration where First, its sentence are requir- manifold: considered as an alternative to incarcera- ing the trial court to articulate its reasons 5 tion.” Here appellant strong plea made a for selecting a sentence will promote for probation and his petition was denied. thoughtful more consideration of relevant
We have also factors and help said that in the will imposition rationalize the sen- sentence, of a tencing process. criminal judge It safeguard exercis- will ing judicial against give discretion should arbitrary con- decisions prevent sideration to circumstances, all aggravating consideration of improper and irrelevant State, as Cavanagh v. mitigating. well as factors. It will minimize the risk of re- Wyo., 505 (1973). P.2d 312 The trial upon liance inaccurate information con- court here weighed and considered all the tained in the presentence report. A circumstances very carefully. statement of reasons aid may correction authorities if the sentence results in a jurisdictions other a number of cases commitment, and may therapeutic have been remanded for sentencing further value if the sentencing judge explains his proceedings under circumstances not found or her reasons to the defendant. Requir- here. example: For “ * * * provide a trial court a reasoned where a sentence imposed basis for the sentence imposed may en- upon (1) the basis of misinformation of hance the court’s legitimacy perceived constitutional magnitude, such as an inac- judges themselves participants record, curate Townsend v. criminal justice criminal system. It will aid Burke, 736, 741, U.S. 68 S.Ct. in attaining courts their institutional (2) com- ob- (1948), a record 92 L.Ed. jective of dispensing equal convictions, impartial prising prior unconstitutional justice and will Tucker, society demonstrate to v. e.g., United States goals these met. Rea- L.Ed.2d 592 sentencing soned may decisions encour- sentence (3) of a simultaneous the effect age development of sentencing crite- a more serious count upon and conviction ria and reduce disparity in sentences —de- indictment, invali- of the which was later creasing the States, unusually number of lenient McGee v. United dated, 462 F.2d unusually as well as harsh Fi- sentences. (4) (2d 1972), failure Cir. nally, a statement of reasons will be in- mitigating and consider court to receive aiding valuable in Malcolm, appellate courts as- circumstances, United States v. certain whether imposed sentence United (2d 1970).” 432 F.2d Cir. upon accurate, was based Brown, sufficient and (2d States 479 F.2d proper information.” 1973). Cir. also complains Watkins, Colo., also, People the tri See 613 P.2d judge
al did not give 633, 637, his reasons for impos n. 14 *8 “ * * * suggest State, We do not Wyo., these are the incarceration.” Sanchez v. sources district (1979). courts look for should P.2d guidance they or that should consider See them- Bar Association American Standards for thereby. selves bound they We direct Sentencing Criminal Justice Procedures, Alternatives and given proper be 1980). (2nd consideration where §§ 18-1.1—18.8.2 Ed. probation is considered as an alternative seen with his wife except when he is about to
We recommend strongly apparently deny judge for The trial their reasons be sentenced. judges explain trial they by a profit the factors would ing probation and indicate felt that sentence. imposing considered in rehabilitation environment. structured disagree. not do sen that his Appellant asserts to the proportion out of greatly tence here. The sentence We see no abuse involuntary man average sentence for law. The provided limits for within the com in We are not slaughter Wyoming. sen- sentencing judge agonized over this sentencing. uniformity mitted to absolute consideration giving careful tence “ * * * insistence that We note counsel’s was not matters. This sentence mitigating from differently treated defendant was thought and without careful imposed charged with the same of persons other facts. volume of marshaling great of a the record does place, fense. In the first Affirmed. so, Even neither the not bear this out. of the United
Fourteenth Amendment concurring. ROSE, Justice, specially 1, 2, Wyo. nor Art. Constitution § States Const., equality. Only ar requires exact majority Although agree with the discrimination are bitrary and invidious be sentence must conviction and appellant’s condemned, present which neither of affirmed, completely different I do so for Cavanagh, supra, in this case.” State majori expressed in the reasons than those at 312. First, record review of the ty opinion. of each crime are differ- The circumstances court erred me that the trial convinces per- background ent. The of each convicted by ap made statements failing suppress son is and his rehabilitative needs different view, were, according my pellant which Also, of each potential are different. rights.1 his Miranda in violation of obtained productive be member of socie- convict to so, that I will later and for reasons Even require uni- ty is different. Were we to the admis conclude that explain, cannot sentencing guided by and be formity him. prejudiced sion of those statements effect, statistics, would, mandate sen- we sen inordinately severe respect With not substi- tencing by computer. We will I concur imposed appellant, tence judgment our own for that of tute applicable majority only because has clear- sentencing judge unless the latter concurring, gives law me no alternative. ly abused his discretion. I took in Scheikof position I reiterate the judge
In the case here the trial 1107, State, Wyo., 636 P.2d sky comprehensive presentence the benefit of a court to concerning the need for this report testimony and the of witnesses aspect of criminal sentencing review hearing. He knew much sentencing carefully. proceedings more background more about the judge ordinarily than a would know. It QUESTION THE MIRANDA anything opinion would add to this conclusion quarrel no with the I have positive negative aspects detail the concerning pro- majority reached say it appellant’s background; suffice admissibility priety negative outweighed positive. Ap When to the authorities. initial statement sentencing that he pellant emphasized at chief’s entered the appellant Daniel We do not find it family oriented. he was re- informed him that for who is to be office and unusual a defendant about of Helen the accidental death family. sponsible sentenced to concerned about his for be volun- rarely thereby made a Bunning, To A man is Mr. Daniel paraphrase proverb:6 rarely except 1. Miranda v. 384 U.S. 86 S.Ct. 6. “A man is seen with his wife running 10 A.L.R.3d when he is or is about to be indicted public office.”
181 tary rights, statement which him the which implicated and, in he voluntarily, pre- did crime. by sumably, As noted the such ad- with a majority, understanding full proscriptions consequences missions fall outside of the of of the waivers. synopsis This of Arizona, 436, suspect the facts a willing Miranda v. 384 U.S. 86 describes S.Ct. and to ready proper talk guidance after and L.Ed.2d 10 A.L.R.3d given by assistance are the in police ex- (1966), in subsequent and are admissible a plaining the rights constitutional which he criminal prosecution. is to entitled or waive assert and which My majority with the dispute focuses rights does in fact a waive with full their of affirmance the trial court’s decision understanding of consequences. the to admit to later declarations record, however, of My review the con- the in the statement-taking process. vinces me in picture painted that the the view, In the majority these be utterances majority opinion glosses impor- over several they came admissible because were obtain tant details that a poignantly suggest situa- ed appellant had knowingly and intel tion involving suspect who asserts his ligently his rights waived constitutional to counsel to be later persuaded these rights guaranteed by the and 5th i.e., argued po- out of it the by otherwise — 6th Amendments to the United States Con lice officers involved. This is what oc- stitution Art. of and the Wyoming § at ap- curred the station before the disagree Constitution. this conclu pellant gave his statement to the officers. sion challenged because the statements were, in my judgment, in obtained violation September 19, appellant volun- On of appellant’s rights as identified Miran tarily went to office of the Police Chief Arizona, da v. supra, Edwards v. Springs Russell Hawk of the Rock Police to Department L.Ed.2d order turn himself State, Dryden Wyo., and the which Run- 535 P.2d incident resulted in Helen ning’s was death. Chief Hawk informed secretary that an individual wanted to of support my position respect, Bunning case, to speak him about the necessary it is for me clarify enlarge to Daniel, whereupon together Mr. with his upon the statement of the facts surround- children, wife was to the admitted taking the of appellant’s statement. Upon entering, Chief’s office. Daniel said do this because I believe majority opin- the responsible that he was for the “accident” ion fails capture the all relevant college. that occurred at the The Chief to capture facts—fails flavor and the clarification, requested a it be- after which tenor of the place— conversations that took referring came was appellant clear fails perceive what accurately Mr. Daniel Bunning As majority homicide. in fact said The police. result is that note, responsibility for appellant confessed opinion reader of the majority given is time the victim’s death while at the same an impression inexact really as to what claiming junc- it was an accident. At this transpired station. ture, Hawk Miran- gave majority suggests that appellant thereafter, warning. Immediately Dan- da spoke first to the De- Springs Rock Police to have “probably iel that he would like said partment implicated himself in the added.) (Emphasis attorney present." Then, death of the is victim—which true. absolutely ig- request This demand or upon realizing probable cause for except Chief then ordered nored that the existed, arrest appel- Chief read tape so produce two officers to recorder lant rights all Miranda conversation could interview be recorded. ceased until two other officers arrived ap- contrary majority’s view— Thus— order begin tape-recorded interview. pellant demanded an or assistance suggested It then taped be- before the interview counsel again explained read and gan. sequence his Miranda events is confirmed This given portion: taped opportunity beginning waive those *10 cers, to waive continually pressed appellant
“CHIEF HAWK: for whose services he right to counsel you 2:15 and told me that “Yes —about short, In expressed a need. had earlier to the for the accident responsible were of it. This is substan- talked him out clarify acci- you woman. I asked what which following interchange by tiated dent, said, the woman you ‘Where had read of the officers knife.’ Is that cor- occurred after one was killed with the rights: appellant rect? his DANIEL: “MR. HAWK: “CHIEF “Accidentally. ‘Yes, sir,’ to “Now, have answered you Okay, you “CHIEF would questions. HAWK: of these all “Well, ask— yes. only were the you That
person
responsible
that was involved
OFFICER:
“POLICE
for that?
like to do now is
I would
“Okay, what
“MR. DANIEL:
for a waiver.
ask
“Yes, sir.
“CHIEF HAWK:
“CHIEF HAWK:
words,
being that
“In
the waiver
other
legal rights
“I advised
you
your
So, would
have read this statement.
you
you’d
told me that
point you
you
have
again
it
now
you read
attorney
an
probably
like
to have
with Mr.
questions
all
answered
(Emphasis added.)
present.”
reading it?
Grymes
appellant stated to
Following
colloquy,
this
OFFICER:
“POLICE
Hawk,
necessary,
Chief
“if it’s
because
waiver
just
would
read that
you
“If
just
advantage
want to be taken
don’t
about it.
any questions
you
and if
that,”
like
and he received
anything
DANIEL:
“MR.
Hawk:
following response from Chief
afford a law-
“May I still —if I can’t
“CHIEF HAWK:
?
appointed
lawyer
be
a
yer may
still
—
“Well,
and like I’ve
necessary,
it’s not
HAWK:
“CHIEF
rights of
you,
you
your
told
if
do waive
“Well,
at the
you
we wouldn’t talk to
and I’ve told
having
attorney present,
an
attorney.
to have an
you
want
point
your
thing,
wife the same
that we would
now. You
you
would discuss it with
willing
you just
be
to discuss—and let
tell
right
representation
to have
do have the
your story
happened.
you
as to what
If
time,
now,
but later on
not
at this
accident,
attorney
saying
it’s an
if
want an
thing.
you
That’s
you
self-serving
will tell
that’s a
declara-
you
going
not
to talk to
attorney, we’re
to,
again,
you
you
tion.
It’s —but
if
want
just going
put you
now. We are
right
down,
know,
got
your
to have
you’ve
sit
things down.”
in the bucket and shut
going
if
present
you’re
here
added.)
(Emphasis
you
make a
I would tell
statement.
time,
this
that with what
information Here,
once
appellant
inquired
when
even
us,
you’ve given
necessary
it will be
right
appointed
his
again concerning
you
custody,
you
us to take
into
whether
counsel,
ignored and the
question
(Emphasis
make the statement
not.”
rights
dissertation of
through
chief went
a
added.)
did not under-
appellant obviously
which
this, appellant waived
Shortly after
convinces me
stand.
sequence
The above
of events
the offi-
by
he was assured
after
assisting appellant,
rather
than
Police,
prejudice
him.2
along
with the other offi-
that a waiver would
cers
knowingly
any finding
2. This clear misstatement was recited
Thus,
rights.
intelligently
interrogating
“Okay,
notwith-
waived
officer
follows:
that—
don’t,
waiver,
you
my
by signing
you
standing
conclusions that the
violat-
don’t
failing
ques-
your rights."
added.)
appellant’s rights
to cease
(Emphasis
In
ed
waive
lawyer,
tioning
I am
opinion,
preclude
he had “asked” for
must
this statement
alone
may be
him,
used as
my opinion,
against
outlined above
evidence
facts
presence
lead
that he has
conclusion that
assert-
appointed.
either retained or
ed his
to counsel and
later
*11
The
may
defendant
waive
This,
effectuation of
that
at
right
waived
insistence.
rights, provided
these
the waiver is made
according
views,
to
constituted a viola-
voluntarily, knowingly
intelligently.
tion of the
constitutional
If, however, he
any
indicates in
manner
under the authorities discussed below.
any stage
and at
the process
of
th&t he
notes,
majority opinion ably
As the
the
attorney
wishes to consult with an
before
cornerstone authority
questions
con-
speaking
questioning.
there can be no
the
cerning
of
admissibility
confessions re-
Likewise, if the individual is alone and
from
sulting
police interrogation is Miranda
any
indicates in
manner
he
that
does not
Arizona,
opinion
the
supra.
that
Unit-
interrogated,
police may
wish to be
the
ed
set
the
Supreme
proce-
States
Court
out
question
not
him. The mere fact
he
required
dures which the
fol-
may
questions
have answered some
or
low
subject
before an individual can be
volunteered some
statements
his own
interrogation.
In describing
custodial
the
deprive
right
does not
him of the
re-
Warren,
holding
Chief Justice
answering any
inquir-
frain from
further
court,
writing for the
stated:
ies until he has consulted
attor-
holding
spelled
“Our
will be
out with
ney and thereafter
to be ques-
consents
specificity
some
pages
the
which follow
(Emphasis added.)
tioned.”
at
U.S.
but briefly
prosecu-
stated it is this:
the
444-445,
been advised of defendant’s desire for
was sufficient
getting
lawyer
counsel on the 18th the sheriff chose to
about
officers,
bring
play
implicated
Escobedo into
tence
several
himself
immediately
stopped
should
concerning
in the same crime
had
which he
questioning
and obtained counsel for
previously refused to discuss. After
might agree
ap-
him. We
were Miranda
counsel,
first
peti-
assertion of his desire for
plicable
to this
this
Miranda
Later,
tioner
placed
had been
in a cell.
court held
...
indi-
suspect]
several
had
requested
‘[i]f
[a
detectives
come and
stage
cates in
manner and at
to interview Edwards. Edwards
told
process
that he
wishes
consult with
guard
speak
he did not
desire
but
an attorney before
there can be
speaking
guard responded that he had to. At that
U.S.,
no questioning.’ 384
at 444-445
petitioner
[86 point
was taken to the room
1612],
S.Ct. at
But Miranda
does
and,
waiting
where the detectives were
af-
added.)
apply
(Emphasis
case.”
rights,
gave
ter
read Miranda
at 1424.
U.S.
S.Ct.
re-
inculpatory statement.
Court
grounds
versed
conviction on
In
Michigan Mosley,
its 1975 decision in
petitioner’s
constitutional
to silence
“This is not a where by showing only cannot be established the police failed to honor a decision of a responded police-initia- that he to further person cut custody questioning, off interrogation ted even if he has custodial either by refusing to discontinue the in- been of his rights. advised further terrogation upon request by persisting Edwards, accused, hold that an such in repeated efforts to wear down his re- having expressed his to deal with desire change sistance and make him mind.” counsel, not police only through the is 105-106, 423 at 96 at U.S. S.Ct. 327. subject interrogation by to further the until counsel has been made authorities supra, If v. Michigan Mosley, any caused him, the him- available to unless accused confusion do as what the can after communication, self further ex- initiates suspect a of rights recog- invokes one the changes, police. conversations with the Miranda, nized in the United Su- States as- “Miranda itself indicated that preme doubts, recently Court removed any a right sertion of the to counsel was supra. Edwards v. There the justices significant faced a event and that once exercised challenge were accused, interrogation by of ‘the must admissibility statements made petitioner present.’ is attorney he cease until had first invoked his right then, U.S., and had after insis- at at Our later counsel3 S.Ct. [86 1627]. attorney during making “I interview: want an before a deal.” Petitioner stated initial time the to silence because at right that view. have not abandoned
cases
invoked,
was
the officers
Mosley,
v.
S.Ct.
to counsel
Michigan
right
U.S.
[96
any
was
321,
interrogation
the Court
nor
46 L.Ed.2d
not cease the
did
313]
be-
distinguished
Miranda had
by appellant
noted that
conversation initiated
further
trig-
procedural
safeguards
tween
question
of
If such is the
himself.
and a
gered
request
a
to remain silent
voluntary waiv-
knowing, intelligent, and
required
attorney and had
request for an
following discussion
As the
er never arises.
attorney
interrogation cease until an
that,
show,
in and
I can
conclude
will
present
if
individual stated
ex-
then and there
under the circumstances
U.S.,
that he wanted counsel.
at
Police,
offices of the Chief
isting in the
S.Ct.,
10];
n. 10
n.
see
[96
proba-
that he “would
statement
id.,
S.Ct.,
also
at 109-111
at 329-
[96
attorney present,” have an
bly like to
(White, J., concurring).
In Fare
330]
his desire
sufficient to inform
C., supra
at 719
Michael
U.S.
[442
707]
[99
questioning
attorney and that all
to have an
197],
S.Ct.
The failure of
stopped.
should
‘rigid
Miranda’s
rule
Court referred to
required the
interrogation
police to cease
attorney
request
that an accused’s
suppress appellant’s later
court to
district
of his Fifth
per
se an invocation
error
to do so.
It was
statement.
that all in-
rights, requiring
Amendment
course,
appel-
of whether
question
Of
Term,
last
terrogation cease.’ And
to counsel
actually invoked
lant
custody had
suspect
in a case where a
previ-
depends
interpretation
on an
counsel,
invoked his Miranda
from Miranda v. Ari-
ously quoted language
‘undisputed
referred to the
again
Court
zona, supra:
silent and
right’ under Miranda to remain
free of
‘until he had
to be
however,
“If,
indicates in
manner
he
Rhode Island
lawyer.’
consulted with
stage
process
and at
Innis,
[100
with an
before
wishes to consult
*14
1688,
recon-
297]
questioning.”
be no
speaking there can
and,
firm
views
to lend them sub-
these
444-445,
added.) 384
(Emphasis
U.S.
stance, emphasize that
it is inconsistent
at 1612.
86 S.Ct.
progeny
with
and its
for the
Miranda
one that has been dealt
question
This
is
authorities,
instance,
at their
to reinterro-
other courts.
comprehensively by
has clear-
gate
custody
an accused in
if he
Harris, 191
example,
People
For
(Em-
ly
right
asserted his
to counsel.”
234,
(1976)
accused
Thus,
me,
presented
for
only question
defend-
on notice that the
thereby placed
whether or not the
in this case concerns
constitutional
to exercise his
ant intended
actually
appellant did in fact and in law
not
the demand was
rights. Admittedly,
present
right
assert his
to have counsel
proper
sophisticated
legally
or
in the most
during the initial conversation with
form,
point,
At
did,
adequate.
but it was
that
it
clear from
Police.
If he
is
until
should have ceased
the above authorities
that his statement
all
was made available
attorney
of his
an
was
violation
constitutional
taken in
187
counsel);
People
Lewis,
accused. The fact that
the accused did
47 Mich.App.
per-
(1973)
not ‘demand’ an
does not
placed beyond pale appellate Messer, Iowa,
ny. 306 N.W.2d State Jones, La.,
(1981); v. State So.2d Watkins, Colo., 613 P.2d
(1981); People v. Dillon, (1980); 100 Idaho State (1979). Sentencing inquiry
and review should Chaney, adopted
able standards in State v.
Alaska, (1970), which 477 P.2d 443-44 concurring opin-
standards I set out in State, supra. Scheikofsky
ion in