Lead Opinion
Thе issues before us concern the accused’s right to counsel at a police-initiated interrogation. They arise in the context of an interlocutory appeal to the Kentucky Court of Appeals taken by the Commonwealth pursuant to KRS 22A.020(4). The Commonwealth appealed from an order entered by the Jefferson Circuit Court on July 29,1992 specifying that a “statement taken from the defendant on February 28,1992, is suppressed and disallowed for use at trial, in that the defendant had counsel of record.”
The facts of the case are as follows: David Linehan is charged with having entered the home of his estranged wife on September 20, 1991, without her permission, and forcing her to engage in sexual intercourse under threat of cutting her with a knife. He was arrested later that day, and after being advised of his Miranda rights (Miranda v. Arizona,
Five months after this first alleged attack, on February 28, 1992, Linehan allegedly engaged in a second series of assaults upon his estranged wife. Allegеdly, he accosted her in front of her home, ordered her into his car, and when she refused, assaulted her, forced her into his car, drove her some distance to a lake in Jefferson County, and once there forced himself upon her sexually. He was arrested later that day, advised of his Miranda rights, and after executing a form waiving his rights, gave what appears to be a voluntary statement partially incriminating as to these new charges and also suggesting that his purpose in accosting his estranged wife was at least in part to intimidate her regarding the previous charges for which he had already been indicted. On March 5, 1992, Linehan was indictеd on new charges with reference to the events of February 28, 1992, of kidnapping, first-degree rape, second-degree assault, intimidating a witness, and three counts of first-degree sexual abuse.
The public defender’s office in Louisville was once again appointed to defend him on the new charges. The indictment on the new charges was initially assigned to a different division of the Jefferson Circuit Court from that in which the indictment on the old charges was pending, but was then ordered to be transferred to the division where the old charges were pending and consolidated with those charges for trial. The Commonwealth’s Memorandum of Law in Suрport of its Motion to Transfer and Consolidate specifies that the joinder of offenses was appropriate under RCr 6.18 which permits such
“... if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts оf a common scheme or plan.”
The similarities listed in the Commonwealth’s motion included the same victim, the same context (a domestic violence situation and violent sexual acts abusing his estranged wife), the element of “retaliation” involved in the second offense, the offenses began at the same location, and the offenses were only five months apart. Linehan’s counsel does not seriously question that a joint trial is proper in this case and that KRE 404(b), which permits a defendant charged with one offense to be incriminated by evidence of other crimes in certain limited and specified circumstances, would sеem to apply here. Instead, Linehan argues that, although evidence from independent sources (e.g., from other witnesses) regarding the second set of offenses may be used to prove relevant collateral criminal activity, Linehan’s own statement about the circumstances involved in the second set of offenses cannot be used to incriminate him in the trial of the first offenses without violating his constitutional right to have the counsel appointed to represent him present at the police-initiated interrogation.
The statement in question was taken on February 28, 1992. It relates to the circumstances involved in the сommission of the offenses specified in the later indictment but it is also circumstantial evidence incrimina
The answer is the trial court properly suppressed the use of the statement at a joint trial, but if the Commonwealth elects to try the two indictments separately, the February 28, 1992 statement must be suppressed only in the trial of the September 20, 1991 charges. The statement is admissible in the trial of the February 28, 1992 charges, if tried separately.
Counsel was appointed to represent Line-han when indicted and arraigned on the September 20, 1991 charges, and thereafter he could not be subjected to police-initiated interrogation regarding any evidence incriminating him on the charges for which he had counsel unless his counsel was present. See Edwards v. Arizona,
“Our holding in Michigan v. Jackson,475 U.S. 625 ,89 L.Ed.2d 631 ,106 S.Ct. 1404 (1986), ... [is] that after the Sixth Amendment right to counsel attaches and is invoked, any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) аre inadmissible.”
But Linehan had been neither formally charged nor arraigned with reference to the offenses charged in the second indictment at the time he gave his statement to the police on February 28, 1992. So with reference to the offenses later charged in the second indictment, his Sixth Amendment rights did not apply. The Sixth Amendment right to counsel is “offense-specific ... it does not attach until a prosecution is commenced.” McNeil v. Wisconsin, supra, at 175,
The Court of Appeals, believing the trial court had erroneously confused the Sixth Amendment right to counsel, which applies to a criminal prosecution, with the Fifth Amendment right of an unrepresented person to counsel, if requested, at a custodial interrogation, reversed the trial court’s order that the statement be suppressed and disallowed and remanded to the trial court for further proceedings.
We granted Linehan’s motion for discretionary review. We reverse the Court of Appeals and sustain the trial court’s order to the limited extent that the statement must be suppressed in any joint trial of the two indictments wherein the statement will incriminate not only as to the new set of offenses but also as to the old offenses. However, in seрarate trials of the two indictments the statement of February 28, 1992 would be admissible evidence on the new set of offenses occurring that date because Linehan was unrepresented by counsel as to these new charges at the- time he was questioned and appears to have voluntarily waived his right to seеk the advice of counsel before being interrogated on the new charges or to have counsel present when so interrogated. Thus the answer to the question of whether the February 28, 1992 statement may be used is both yes and no, with “yes” confined to use in a separate trial of the second set of offenses.
On the other hand, the Commonwealth argues that since the statement would be admissible in a separate trial on the second set of charges, it should be admissible if the charges are tried jointly. This would leave us one step short of Michigan v. Jackson, supra, and McNeil v. Wisconsin, supra. We, of course, intend neither to stop short of the accused’s constitutional rights nor to proceed beyond.
The premise underlying the defense counsel’s argument is that police questioning of an unrepresented suspect about new offеnses when they know of pending charges similar in nature wherein he is represented by counsel constitutes “knowing exploitation by the state of an opportunity to confront the accused without counsel being present.” Maine v. Moulton,
“To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards [‘Fifth Amendment’ right to counsel] interest. One might be quite willing to speak to the police without counsel present concerning many [new] matters, but not the matter under prosecution. ... ‘[T]o find that [the defendant] invoked his Fifth Amendment right to counsel on the present charges merely by requesting the appointment of counsel at his arraignment оn the unrelated charge is to disregard the ordinary meaning of that request.’ ” [501 U.S. at 178 ,111 S.Ct. at 2209 ]115 L.Ed.2d at 168-69 . (Citation omitted.) (Emphasis original.)
We find no constitutional right, federal or state, precluding police-initiated custodial interrogation on new charges, once Miranda warnings have been given and a voluntary waiver obtained, and no reason to imply such a right in order to protect existing rights, so long as the evidence thus obtained is not used to incriminate the accused on old charges for which he already has counsel. The accused is adequately protected by suppressing use of the statement in any trial involving the old charges, whether a separate or joint trial, while permitting use of the evidence thus obtained at a separate trial involving only the new charges.
Likewise, we reject the Commonwealth’s argument that, simply because the evidence is admissible as to the new charges, the Commonwealth can bootstrap it past Sixth Amendment protection on the old charges by electing to jointly try the old and new offenses. As the Commonwealth’s Brief concedes, in Michigan v. Jackson, supra, the United States Supreme Court “fashioned a protective rule” that “once the Sixth Amendment right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective.” Howevеr, contrary to the Commonwealth’s argument,’this protection does not evaporate because joinder is permissible. Constitutional protection cannot be held hostage to trial tactics. The Commonwealth cites McNeil v. Wisconsin in support of its argument, but the salient fact in McNeil is that statement obtained about the new offenses (the unrepresented charges) was not offered to incriminate McNeil on the old offense (the represented charge). The issue
The pоlice and prosecutorial authorities are at liberty to question a willing suspect about new offenses without regard to whether there is prosecution pending on other charges, whether similar or different in nature, but they must be cognizant that the evidence thus obtained may not be used to incriminate him on pending charges wherein he is represented unless his counsel is present.
For the reasons stated, we reverse the decision of the Court of Appeals and affirm the suppression order of the trial court, with the understanding that the trial court’s order is interlocutory in character and that the Commonwealth, if the trial court so permits, may elect to sever the indictments for trial. In such event, use of the statement of February 28, 1992 to incriminate the accused on the new offenses would be proper, but use as evidence against him on trial of the first set of offenses is constitutionally impermissible.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion because I disagree with the application of the law to the facts of this case. Even though the majority opinion differentiates between evidence pertaining to the first set of charges, the subsequent holding fails to consider such a distinction.
The majority оpinion is correct when it states that the second statement would be allowed in a separate trial regarding the second set of charges. It is also correct when it states that the evidence from the second statement which relates to the first set of charges may not be used in either a separаte or joint trial on the first set of charges. However, there is a third possibility which the majority opinion and the trial court did not consider. In a joint trial, testimony from a second statement which does not relate to the first set of charges may be admitted without violating the constitutional right of the defendant. This alternative is not сonsidered and for that reason I must dissent.
In addition, I believe that this case is governed by the decision of the United States Supreme Court in McNeil v. Wisconsin,
Here the defendant was arrested and questioned regarding the February, 1992 charges and no adversarial criminal proceedings cоncerning those charges had been instituted against him. Consequently, the defendant’s Sixth Amendment right to counsel was not violated and the trial court erred by suppressing his incriminating statements regarding the February, 1992 offenses.
The 1991 and 1992 charges are related in the sense that they involve the same victim and similar charges. However, in view of the passage of more than five months between the commission of the first and second offenses, it is clear that the 1992 offenses were separate, distinct and unrelated to the offenses charged in the earlier indictment.
The Court of Appeals was correct in the manner in which it disposed of this case and should be affirmed by this Court.
REYNOLDS and SPAIN, JJ., join in this dissent.