Rаndy Wakefield Anderson was convicted of murder, armed robbery, and conspiracy to commit armed robbery. He appeals, arguing the trial court erred (1) in allowing the admission of hearsay evidencе and (2) in admitting statements into evidence which were taken in violation of his Sixth Amendment right to counsel. We reverse and remand.
FACTS
Around midnight on May 10, 1998, Jamal Manick shot and killed Lamont Rappley in the parking lot of a rеstaurant. At trial, the State alleged that Appellant conspired -with Manick and Fred Ross to rob the victim. Officer Shawn Fisher testified that upon arriving at the scene, he observed the victim lying face down on the рavement with Appellant kneeling beside him. Appellant told Officer Fisher: “My man’s been shot.” During this time, Kenneth Williams, a friend of the victim, arrived at the scene. Officer Fisher instructed Appellant to sit in his patrol car whilе he secured the scene.
After securing the scene, Officer Fisher returned to his patrol car to speak with Appellant. Anderson explained that he was walking with Williams through the restaurant’s park *516 ing lot when а car approached, and a passenger got out, shot the victim, jumped back in the car, and left the scene. According to Appellant, he and Williams then left the scene to call 911.
Williams, a witness for the State, testified that on the evening of May 10, 1998, the victim asked Williams to accompany him to the restaurant to conduct a drug deal. When they arrived at the restaurant, Williams “hung back” as the victim met with Andеrson to conduct the deal. Williams stated that about five or ten minutes later, it began raining and he and the victim began to leave the parking lot. As they were walking away, Williams saw headlights and turned around; he then sаw a man jump from the car, and shoot the victim. After the shooting, he and Anderson ran to the victim’s house, which was nearby, to call 911. Williams admitted that he initially lied to the police when questioned about the cirсumstances surrounding the shooting because he “didn’t want it to look like a drug-crime.”
Fred Ross also testified for the State. According to Ross, he was hanging out in an apartment with Manick on the day of the incident. Ross claimed that Appellant arrived at the apartment and told them “that he had a lick,” indicating that the men could rob the victim. Ross testified that later in the evening, he drove Manick to the restaurant where Appellant had set up a drug deal with the victim. Ross stated that as they approached the restaurant, Manick jumped out of the car and shot the victim. On cross-examination, Ross acknowledged that he had a deal with the State allowing him to plead guilty to accessory after the fact of murder and accessory after the fact of armed robbery, charges which carry maximum ten-year prison sеntences, in exchange for his testimony.
Bobby Lukie, who rode with Ross and Manick to the restaurant, also testified that Manick shot the victim. Lukie maintained that he was not involved in planning the robbery and that he merely rаn into Ross and Manick at a convenience store that night and decided to accompany them to the restaurant. The defense’s theory of the case, however, was that it was Lukie, not Appеllant, who planned the robbery of the victim.
*517 The jury found Appellant guilty of all charges and sentenced him to thirty years for murder, twenty years concurrent for armed robbery, and five years concurrent for cоnspiracy to commit armed robbery. This appeal follows.
LAW/ANALYSIS
I. Hearsay
Appellant argues the trial court erred in allowing Lukie to testify regarding statements allegedly made to him by Ross. Appellant asserts that this testimоny constituted impermissible hearsay. We disagree.
At trial, Lukie testified that around 11:00 p.m. on the night of the murder, he drove by a convenience store and noticed Ross and Manick standing outside the store. Lukie statеd that when he asked Ross and Manick what they were doing, Ross told him “they had a lick or something like that.” Defense counsel objected, arguing this testimony was hearsay. The State argued the testimony was admissible as nоn-hearsay because the statement was made in furtherance of the conspiracy. The trial court agreed and overruled the defense’s objection.
Rule 801(d)(2)(E), SCRE, provides that “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is not hearsay.
See also State v. Gilchrist,
II. Sixth Amendment
Appellant also argues the trial court erred in refusing to suppress a statement he made to police on June 16, 1998 *518 because it was taken in violation of his Sixth Amendment right to counsel. We agree.
At trial, a Jackson v. Denno 1 hearing was held to determine the admissibility of statements Appellant made to police. Officer Fisher testified that, immediately following the shooting, Appellant agreed to accompany him to the police station, and a gunshot residue test was performed on Appellant. Officer Raczinsky went to Appellant’s home on June 15, 1998 to discuss the positive results of the gunshot residue test. After this discussion, Appellant accompanied Raczinsky to the police station, and following a brief interview, he was arrested for murdering the victim. Raczinsky read Miranda warnings to Anderson and escorted him to jail.
At 11:30 the next morning, Appellant was arraigned for the murder, and he signed a form requesting the services of a public defender. Later that afternoon, Anderson’s aunt visited with him at the police station. Raczinsky testified that after the visit, the aunt “suggested I go talk to [Anderson] again.” Raczinsky testified that he then went in to talk with Andеrson, read to him his Miranda warnings, and asked if “anything had changed since the last time [they] talked.” Appellant then told Raczinsky that “he was at [the restaurant] in reference to a drug transaction.” Appellant explained that he met the victim earlier in the day and had arranged to purchase crack cocaine from him around midnight. Defense counsel objected to the admission of this statement, arguing it was initiated by the police and was made after Appellant had invoked his Sixth Amendment right to counsel.
The Sixth Amendment guarantees that in all criminal prosecutions “the accused shall enjoy the right to ... have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. “[0]nce a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right — even if voluntary, knowing, and intelligent under traditional standards — is presumed invalid if securеd pursuant to police-initiated conversation,” and “statements obtained in violation of that rule may not be admitted as substantive evidence in the prosecution’s case in chief.”
Michigan v. Harvey,
494
*519
U.S. 344, 345,
When the Sixth Amendment right to counsel has attached, if police initiate interrogation after a defendant’s assertion, at an arraignment or other similar proceedings, оf his right to counsel, any waiver of the defendant’s right to counsel for that police initiated interrogation is invalid unless the defendant initiates the contact himself.
State v. Council,
Here, in ruling that Appellant’s statement was admissiblе, the trial court first found that Officer Raczinsky “was not restrained'in his questioning of [Appellant] by the existence of the document [requesting the services of a public defender]
... because it was signed at a time diffеrent from and a place different from [where Appellant was questioned].” However, this very issue was considered by the United States Supreme Court in
Michigan v. Jackson,
As additional support for admitting Appellant’s statement into evidence, the trial court found that Appellant’s signing of the paperwork for a public defender was not enough to invoke his right to counsel. However, pursuant to
State v. Council,
In
Council,
the defendant was arraigned on October 14, 1992, and requested the court appoint an attorney to represent him.
Id.
at 14,
Accordingly, we find that Officer Raczinsky’s contact with Appellant violated the protections afforded Appellant under the Sixth Amendment. Even if the police re-entered the room at the behest of Appellant’s aunt, Officer Raczinsky admitted that he initiated the conversation with Appellant by asking him if “anything had changed” since the last time the two had spoken. Thus, the trial court erred in admitting Appellant’s statement about the “drug deal” because it was made after Appellant had invoked his Sixth Amendment right to counsel and was pursuant to a conversation he did not initiate. Therefore, Appellant’s convictions are reversed and the ease is remanded for a new trial.
REVERSED and REMANDED.
Notes
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