THE STATE OF WASHINGTON, Rеspondent, v. MICHAEL DUANE EARLS, Appellant.
No. 56502-3
Supreme Court of Washington
February 14, 1991
116 Wn.2d 364 | 805 P.2d 211
En Banc.
The attorney fees provision of the Industrial Insurance Act treats all employees equally and excludes employers based on real differences between the position of employers and employees related to the purpose of the provision. The District‘s equal protection challenge is rejected.
We reverse the Court оf Appeals on the issue of second injury fund relief for the plaintiff, Seattle School District, and affirm its holding on attorney fees.
DORE, C.J., UTTER, BRACHTENBACH, ANDERSEN, DURHAM, and Guy, JJ., and CALLOW, J. Pro Tem., concur.
Michael E. Rickert, Prosecuting Attorney, and David R. Needy, Deputy, for respondent.
DURHAM, J.—Michael Duane Earls was convicted by jury of one count of premeditated first degree murder and was sentenced to 340 months in prison. Earls appeals his conviction, asserting that the trial court erred in denying his motion to suppress the confession he made to the police. He claims that the statements were made after an invalid waiver of his rights under
Earls does not challenge the sufficiency of the evidence sustaining his conviction other than as it pertains to the issue of his waiver. Thus, we discuss only those facts relevant to the trial court‘s denial of Earls’ motion to suppress his statements.
On March 31, 1987, Roy Alaniz was shot while in his home in Sedro Woolley.1 Alaniz was taken to a hospital, where he died the next day from a gunshot wound to the head. Detective Kenneth Rosencrantz of the Sedro Woolley Police Department was in charge of the investigation of the Alaniz death, which was determined to be a homicide. On December 7, 1987 a confidential informant told the Sedro Woolley Police Department of a possible suspect in the Lynnwood area. This information led them to talk with
The parties have stipulated that Earls called his ex-wife, Valerie LaPier, from the jail at 1:50 p.m. that same day. Earls testified that he told the booking officer that he wanted to call LaPier so that she could contact an attorney. He also testified that the call was made in the presence of the booking officer and that the booking officer dialed the phone. Rosencrantz testified that he was not sure if the booking officer usually dials these calls. Because Earls did not mention this call to his attorney until shortly before the April suppression hearing, defense counsel did not question police departmеnt personnel about it until some 3 months after Earls’ arrest. The parties stipulated that the booking officer has no independent recollection of this call.
Earls further testified that he told LaPier that he was at the police station and that he said, “I don‘t know what they have me here for but I need a lawyer.”2 He testified that LaPier told him that she was quite sure she could find someone.
Valerie LaPier testified that she received a call from Earls shortly after lunch on the 21st, and that Earls said that he was in jail charged with murder and that he needed an attorney. LaPier got the name of Robert Leen from an
Robert Leen testified that, while he did not recall the specific date, he did receive a call from Valerie LaPier. He confirmed that LaPier told him that a boyfriend was charged with murder and that she asked if he was interested in representing him. His response to her was “yes, I would—I needed to find out what was happening.” He then called the Lynnwood Police Department. Leen testified that he identified himself and stated that he was calling for Earls and that a friend had contacted him on Earls’ behalf. He asked to speak to Earls, but was told that he could not. He then asked to leave his name and number so the police could have Earls call him back. He testified that he called the station before 5 p.m., but could not be more specific about the time.
Leen did not say that he was Earls’ attorney or that he did not want the police to talk to Earls. “All I ever represented was that I was contacted by his family or friends.” He made no attempt to go to the station or see Earls firsthand. Leen did not consider himself retained at that point. LaPier also testified that Leen was never hired. Earls does not claim that Leen was ever retained to represent him.
Leen testified that Earls called him back at 8 or 9 o‘clock that evening and told Leen that he had confessed and he did not think there was anything Leen could do. Earls testified that he did not call Leen until the next day. Leen then spoke to LaPier who told him that she was not sure if they would hire an attornеy or try to get a public defender.
Leen heard nothing further regarding Earls until about 3 months later. He had not made any notes regarding the calls. Leen testified that his first impression was that Earls
At about 4:43 p.m. on the day of his arrest, Earls was taken from his cell and brought into a private office at the Lynnwood Police Department to be interviewed by Detective Rosencrantz. No one else was present in the room. Rosencrantz testified that he read Earls his constitutional rights from a pocket rights card at the beginning of the interview. It is undisputed that Rosencrantz re-advised Earls of his constitutional rights at 5:21 p.m. and that Earls signed a written waiver at that time.
At 5:25 p.m., Rosencrantz began a taped interview. Immediately prior, an agreement was reached that Earls would not be charged with aggravated first degree murder, which carries a penalty of death or life in prison without parole. At the beginning of the tape, Earls was again advised of his rights. It is undisputed that Earls did not invоke his constitutional rights at any time during the interview with Rosencrantz. Earls testified that during the interview he at no time asked for an attorney, stated that he was waiting for a call from an attorney, or in any way indicated that he did not want to answer questions.
Rosencrantz testified that he was not in the booking room when Earls called LaPier nor was he aware that Earls had called LaPier to see if she could get an attorney. While he was aware that Earls had made a call, he had no knowledge of the content of the call. Rosencrantz was not made aware of Leen‘s call until 2 weeks before the suppression hearing.
The parties have stipulated that no one at the police station has independent recollection of Leen‘s call coming in; that there is no record of the call because the message pad used at the booking desk is routinely destroyed every third day or so, unless a request is made to save a particular
Prior to trial, Earls filed two motions to suppress, one as to his statements and another as to all the evidence resulting from his arrest, which he contended was illegal. Earls challenged the existence of probable cause for his arrest and the authority of the Lynnwood Police Department to make the arrest.
After a hearing, the trial court denied both motions. In so doing, the court signed two orders. The first referred specifically to the CrR 3.5 hearing, which was held to determine the admissibility of the statements. The second dealt with both motions. The court specified that the two orders “should be read together and not separately” because, while the phone call by Leen was addressed only in the second order, facts relevant to the voluntariness of Earls’ statement are contained in both.
In the first order, the court listed the following undisputed facts: At the time of his arrest, Earls was advised of his constitutional rights by the Lynnwood police; at 4:43 p.m., Earls was taken from his cell to be interviewed by Rosencrantz; at 5:21 p.m., Rosencrantz re-advised Earls of his constitutional rights and Earls executed a written waiver; at 5:25 p.m., the taped interview was started and Earls was advised of his rights on the tape; Earls never invoked his constitutional rights during the interview; and the interview tape was made after an agreement was reached not to charge Earls with aggravated murder. The testimony given at the hearing conflicted as to whether or not Earls was under the effect of barbiturates during the interview and was advised of his rights when the interview began at 4:43 p.m. There was also a dispute as to who first suggested that Earls give a statement in exchange for a reduced charge.
The trial court entered the following conclusions: There was insufficient evidence that Earls was intoxicated or that his will was affected by drugs; Earls was verbally advised of
The court went on to conclude that Earls’ statement to Rosencrantz was “given freely and voluntarily after proper advisement of constitutional rights and a knowing waiver of those rights” and Earls “never exercised any of his rights during the interview with Detective Rosencrantz.” The court ordered that Earls’ “oral and written statements made to Detective Rosencrantz between 4:43 p.m. and 7:56 p.m. on January 21, 1988 [were] admissiblе at the time of trial.”
The second order signed by the court dealt with the issues of probable cause, the Lynnwood police‘s authority to arrest Earls, and the validity of Earls’ waiver. As to waiver, the court addressed three areas of dispute—Earls’ possible intoxication, inducement of his statements by promise or threat, and the effect of the phone call by Leen on the validity of his waiver.
As to the intoxication issue, the court found insufficient evidence that Earls was intoxicated or that his will was affected by drugs. The court further found that Earls’ statement was made after he initiated the request for a first degree murder charge, rather than aggravated first degree murder, and that the statement was not induced by any threat or promise. Earls has not assigned error to either of these findings.
The court then stated:
The third area surrounding the defendant‘s statement involves a phone call made slightly before 5 p.m. on January 21, 1988 to the Lynnwood Police Department. The call was made by Robert Leen who identified himself as an attorney contacted by Michael Earls’ family and requested to talk to the defendant. When told the defendant was unavailable (possibly because he was talking to detectives), Mr. Leen simply left a
message for the dеfendant to call when he was available. Mr. Leen made no attempt to contact the officers involved or to stop the interrogation. He asserted no rights on behalf of the defendant or make [sic] any effort to clarify the circumstances. Under the facts and circumstances before the Court, the timing of Mr. Leen‘s attempted contact, the manner in which it was made and the previous knowledge of the defendant do not negate the defendant having knowingly, freely and voluntarily waived his constitutional rights. This finding is further supported by Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).
Clerk‘s Papers, at 107-08. The court concluded that the statement was given freely and voluntarily after Earls executed a knowing waiver of his constitutional rights and ordered that the statements were admissible at trial.
Earls assigns error only to the trial court‘s finding that Leen‘s call did not negate the validity of Earls’ waiver and the conclusion that his statements were therefore admissible.3 Earls does not contend that he was unaware of his rights, that he was unable to understand them, or that he was incompetent to waive them.4 Nor does he argue that he invoked his right to an attorney by calling LaPier, while at the same time not telling Rosencrantz that he had attempted to contact an attorney, despite being advised of his rights three times prior to making the statements. Rather, he urges this court to hold that, as a matter of state law, an otherwise valid waiver of constitutional rights is
As a threshold matter, it is essential that we clarify exactly which constitutional provisions are at issue. This need for precision is especially crucial when we are asked, as in this case, to interpret our state constitution to afford broader protection than its federal counterpart. When a party urges this court to undertake such an independent state analysis, it is important that we identify on which provision the party relies and the extent of additional protection being urged.
Earls complies with this, but only in the most general sense. He alleges that this court should hold that his waiver is invalid because his constitutional right to counsel has been violated. However, as is frequently the case when a party‘s right to counsel is at issue, Earls appears to have blended the right to counsel under the Fifth and Sixth Amendments (and their state constitution counterparts) into a generic right to counsel argument. This is an especially easy trap to fall into when one is arguing the validity of a waiver, rather than a direct violation of the right to counsel. Here, Earls’ waiver was made and his statement was given before formal charges were filed. Thus, his right to counsel under the Sixth Amendment and
Earls asks that we decide the validity of his waiver under our state constitution, rather than federal law. He claims that
No person shall be compelled in any criminal case to give evidence against himself . . .
(Italics ours.) The Fifth Amendment provides:
. . . nor shall [any person] be compelled in any criminal case to be a witness against himself . . .
(Italics ours.)
Whenever a claim of right is asserted under the Washington Constitution, the first step is to determine if the asserted right is more broadly protected under the state constitution than it is under federal constitutional law. Forbes v. Seattle, 113 Wn.2d 929, 934, 785 P.2d 431 (1990). Earls urges this court to make this determination using the analysis set forth in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).6 However, rеsort to the Gunwall analysis is unnecessary because this court has already held that the protection of
In Moore, appellant challenged the constitutionality of Washington‘s implied consent law contending that it impermissibly impliedly waived his privilege against self-incrimination.7 The court noted, and appellant agreed, that the privilege against self-incrimination embodied in the Fifth Amendment extends only to testimonial or communicative evidence and does not protect an accused from being the source of real or physical evidence against himself. Moore, at 55 (citing Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967)). Schmerber held that blood tests to determine alcoholic content are not testimonial or communicative in nature and, thus, compelling such tests does not violate the Fifth Amendment. Schmerber, at 765. However, appellant urged the court to hold that compelling a Breathalyzer test violated his privilege against self-incrimination under
Appellant argued that the difference in language between the two provisions should be interpreted as granting broader protection under
[Moore] presents an articulate argument for the proposition that we are not bound to place the same interpretation on our state constitutional privilege against self-incrimination as has been placed on that contained in the United States Constitution. He reasons that our provision, which is worded in terms of giving evidence, should be interpreted by this court to include physical evidence because our provision is meant to grant a broader protection than that granted by the Fifth Amendment. We are not persuaded, however, that the difference in language between the two constitutional provisions is determinative.
Moore, at 55-56. The court also looked to the origins of the privilege against self-incrimination and the manifest purpose of state and federal provisions protecting the privilege. It concluded that both the state and federal provisions are meant to prohibit the compelling of self-incriminating testimony from a party or witness. Moore, at 56. The court stated:
The Washington constitutional provision against self-incrimination envisions the same guarantee as that provided in the federal constitution. There is no compelling justification for its expansion. The protection of both constitutional provisions extends only to testimonial or communicative evidence.
Moore, at 57.
It is of particular interest that a dissent authored by Justice Rosellini thoroughly presented arguments in favor of broader state protection. Moore, at 65-68 (Rosellini, J., dissenting). Indeed, the dissent‘s analysis in many ways foreshadowed the analysis later set forth by this court in Gunwall. Nonetheless, the 6-person majority remained unconvinced.
The dissent first criticized the Schmerber holding that blood tests to determine alcoholic content do not fall within the ambit of the Fifth Amendment. Noting that this court was not bound to follow Schmerber, it urged the court to hold that the implied consent law violated
First, it contended that the word “evidence” supported interpreting our state provision more broadly than the federal because the commonly accepted meaning of evidence encompasses all kinds of evidence, testimonial and physical. Moore, at 65 (Rosellini, J., dissenting). The dissent noted that the members of the Washington State Constitutional
Next, the dissent reiterated that this court is not bound to follow federal analysis solely because the provisions at issue are similar. While acknowledging that this court has recognized the Schmerber distinction between physical and testimonial evidence, it asserted that pre-existing state law had done “no more than hold that bodily exhibition tests are not within the protection of the constitution” and were, therefore, distinguishable because they “did not involve the use of substance of a person‘s body against him, such as liquid (blood) or gas (breath).” Moore, at 66 (Rosellini, J., dissenting). The dissent had previously noted that, prior to Schmerber, several state courts had held that there was no constitutional difference between requiring submission to chemical tests and coercing spoken testimony. Moore, at 61 (Rosellini, J., dissenting).
The dissent concluded that, contrary to the majority‘s position, the problems it saw with Schmerber were “compelling justification” for the expansion of the protections of
The issue was revisited in State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982). This time a unanimous court concluded that Moore correctly interpreted
Now, we are again urged to hold that
Because thе right to counsel under the state and federal provisions is the same, we proceed with our analysis under federal law, beginning with a general overview of the law as it pertains to the waiver of the constitutional right against self-incrimination. The United States Supreme Court has determined that the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that custodial interrogation be preceded by advice to the accused that he has the right to remain silent and the right to the presence of an attorney. Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). However, the person being interrogated may validly waive the right to counsel. Miranda, at 475. If the interrogation takes place without an attorney present, the State has the heavy burden of establishing the
In Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), the Court held that the failure of the police to inform a defendant of the efforts of an attorney, retained without the defendant‘s knowledge, to contact the defendant does not deprive a defendant of his right to counsel under the Fifth Amendment nor vitiate a waiver of his Miranda rights. Moran v. Burbine, supra. Earls correctly concedes the validity of his waiver under Burbine.
In Burbine, the defendant confessed to the murder of a young woman after he had been informed of his Miranda rights and had executed a series of written waivers. He did not request an attorney during the interrogation. However, while he was in police custody, his sister retained a lawyer to represent him. Burbine, at 415. Ms. Munson, an attorney with the public defender‘s office, called the detectives’ office and explained that Burbine was represented by counsel. She explained that the attorney who would actually represent Burbine was not available, but that she would act as Burbine‘s legal counsel in the event that the police intended to place him in a lineup or question him. Burbine
In holding that Burbine‘s ignorance of the attorney‘s efforts to reach him did not taint the validity of his waivers, the Court noted that the voluntariness of Burbine‘s statements was not at issue, nor was there any question about Burbine‘s comprehension of his rights. Burbine, at 421. The Court stated that “[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Burbine, at 422. Furthermore, a waiver is valid as a matter of law once it is determined that a suspect was aware of his rights and the State‘s intention to use his statements against him, and his decision not to invoke those rights was uncoerced. Burbine, at 422-23. The “failure to inform [Burbine] of the telephone call [was not] the kind of ‘trick[ery]’ that can vitiate the validity of a waiver.” Burbine, at 423 (quoting Miranda, 384 U.S. at 476).
We do note that there are two distinctions between Burbine and the present case. First, the attorney in Burbine had been retained and she expressly told the detectives that Burbine was represented by counsel and requested that they not interrogate him further without an attorney present. Second, Burbine was unaware of the efforts made on his behalf. We do not believe these distinctions require a different result. Earls was aware of his rights and the State‘s intention to use his statements against him. Furthermore, his decision not to invoke those rights was not induced by threat or promise. Thus, his waiver was valid as a matter of law. Burbine, at 422-23.
Accordingly, we affirm the trial court‘s refusal to suppress Earls’ statements. Michael Earls was repeatedly and
DORE, C.J., BRACHTENBACH, DOLLIVER, ANDERSEN, SMITH, and Guy, JJ., and CALLOW, J. Pro Tem., concur.
UTTER, J. (dissenting)—I dissent. The majority at page 380 notes two distinctions between the United States Supreme Court decision of Morаn v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), and the present case, which it believes make no difference. I agree on the first and disagree on the second. The first was that counsel was retained and told detectives Burbine was represented and asked that they not interrogate him further without an attorney present. I agree the fact that the attorney was retained is not significant.
The second factor is significant and the heart of the case. That factor is that Burbine was unaware of the effort to obtain an attorney. This is what distinguishes this case from Burbine, and under federal, as well as state law, compels a reversal. Earls invoked his right to counsel by calling his ex-wife and asking her to get him an attorney. After Earls made this request of his ex-wife, he was not made aware of the efforts by the attorney to contact him prior to his confession. For these reasons his waivers were not knowing, intelligent, and voluntary. Following Burbine, four states have held such conduct unconstitutional under their constitutions.9 In addition, the recent case of Minnick v. Mississippi, — U.S. —, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990) reaffirms the commitment of the United States
Our emphasis on counsel‘s presence at interrogation is not unique to Edwards. It derives from Miranda, where we said that in the cases before us “[t]he presence of counsel . . . would be the adequate рrotective device necessary to make the process of police interrogation conform to the dictates of the [Fifth Amendment] privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.”
While Minnick did not deal with the same fact situation present in this case and in Moran, it did reaffirm the United States Supreme Court‘s adherence to earlier cases extending the Miranda rule and reaffirmed in a 6-judge majority the vitality of the Miranda doctrine. Proper application of the Gunwall factors compels a similar result. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Accordingly, I would find that Earls’ constitutional rights were violated under both the federal and the state constitutions.
I
The relevant constitutional provision is the right to counsel under
No person shall be compelled in any criminal case to give evidence against himself . . .
A parallel right is contained in the fifth amendment to the United States Constitution.
A defendant‘s right to counsel under the Fifth Amendment and
Earls made a telephone call to his ex-wife to arrange for an attorney. A police officer dialed the phone and was present during the call. Earls testified he told the booking officer that he wanted to make the call to arrange for an attorney. This testimony is uncontroverted. The booking officer has no independent recollection or written record of the content of the call, although an outgoing call was logged. Earls’ ex-wife testified that Earls called her and asked her to obtain an attorney for him.
The question is whether that is sufficient to invoke the right to counsel. Miranda says the suspect can indicate in any manner his desire for counsel and after that the police cannot initiate interrogation outside the presence of counsel. However, the interrogating officer had no knowledge of Earls’ call to arrange for an attorney. The booking officer, however, did have knowledge of the call. Earls specifically told his ex-wife he needed an attorney. Although the booking officer did not relay this information to anyone else, his knowledge of the call is imputed to all officers involved. State v. Middleton, 135 Wis. 2d 297, 312, 399 N.W.2d 917 (1986) (one officer‘s knowledge of a fact is generally imputed to entire police force whether or not he failed to pass it on). Thus, Earls’ phone call to his ex-wife adequately invoked his right to counsel.
Consequently, Earls’ waiver was rendered invalid in two ways. Under Miranda and Edwards, Earls’ waiver was not
When Earls requested counsel by telephoning his ex-wife and asking her to contact an attorney for him, at that point no interrogation could lawfully take place unless Earls himself initiated the conversation.
Earls’ waiver is not valid because the police did not honor his request for counsel and refrain from interrogation until counsel was present. Once an accused has invoked his right to counsel, “a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards, 451 U.S. at 484. The police initiated the interrogation, not Earls. Therefore, his waiver was not valid.
In Burbine, the defendant‘s sister contacted the attorney without the knowledge of the defendant. At no point did Burbine request an attorney. In this case, Earls requested an attorney by calling his ex-wife and asking her to get him one. The attorney was not contacted without Earls’ knowledge.
The fact that the contact by the attorney was unilateral and without the defendant‘s knowledge was crucial to the decision in Burbine. The Court noted that the crucial distinguishing feature of that case is that Burbine never requested counsel. 475 U.S. at 423 n.1. That fact removed the situation from that contemplated by Edwards v. Arizona, supra, which held that a waiver occurring after invocation of the right to counsel is valid only if the suspect initiated conversation.
Moran v. Burbine, supra, is a narrow holding and must be viewed in light of its facts. The issue was whether Burbine‘s ignorance of the attorney‘s efforts to reach him tainted his waivers. 475 U.S. at 416. The entire decision is grounded upon the fact that Burbine did not request an attorney and was unaware of his sister‘s efforts to provide
While the attorney contacted by Earls’ ex-wife was never retained, this is not relevant to the issue of the validity of waiver. The attorney was never given the chance to be retained because Earls did not speak with him. The right to counsel should not hinge on the fortuity of retention of counsel prior to arrest. See State v. Stoddard, 206 Conn. 157, 537 A.2d 446, 455 (1988) (unwise to impose upon the police the responsibility of ascertaining the nature of the putative relationship between counsel and suspect).
Moreover, that the attorney was not retained is offset by the fact Earls initiated contact with an attorney by calling his ex-wife and asking her to find him one. The attorney called to offer advice at the request of Earls’ ex-wife.
Neither is it relevant that the attorney did not object to interrogation. An accused‘s constitutional rights cannot be made dependent upon an attorney speaking some “magic words“. The attorney‘s request to speak with Earls was sufficient to halt the proceedings until Earls had consulted with counsel.
Wisconsin distinguished Burbine on facts almost identical to this case. In State v. Middleton, 135 Wis. 2d 297, 399 N.W.2d 917 (1986), the defendant phoned his wife after his arrest and asked her to contact a specific attorney. The attorney‘s attempt to see the defendant was rebuffed and the defendant not informed his attorney was there. The defendant waived his rights and made a statement. The
Like Middleton, Earls took the initial step in obtaining an attorney. Thus, when the attorney called to speak with Earls, it was an attorney requested by Earls, not an unknown attorney unilaterally attempting contact. Earls’ phone call to his ex-wife made the attorney‘s phone call to the police station relevant to the waiver. Earls’ waiver could not be knowingly and intelligently made when he did not know that an attorney, as a result of Earls’ phone call to his ex-wife, had called to offer assistance. He lacked sufficient information to waive his rights. The knowing quality of the waiver disappeared when the facts of the interrogation changed without Earls’ knowledge. See Middleton, 135 Wis. 2d at 313. When the police failed to tell Earls that the attorney had called, they induced Earls to believe that a state of facts continued to exist when that was no longer true. See Middleton, 135 Wis. 2d at 314.
In State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979), cert. denied, 446 U.S. 945, 64 L. Ed. 2d 802, 100 S. Ct. 2175 (1980), the defendant‘s wife contacted an attorney after the
To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second. . . .
Oregon adheres to State v. Haynes, supra, notwithstanding Moran v. Burbine, supra. See State v. Isom, 306 Or. 587, 761 P.2d 524 (1988).
Since the decision in Burbine, four states have found the failure of police to inform a suspect of an attorney‘s attempts to contact the suspect vitiated a waiver of constitutional rights, and, thus, violated the state constitution.
In Florida, the State Supreme Court found that the police conduct in not informing the defendant of his attorney‘s efforts at contact and denial to the attorney of access to the defendant violated the state constitution‘s due process provision. Haliburton v. State, 514 So. 2d 1088, 1090 (Fla. 1987). This holding was reaffirmed in State v. Allen,
Connecticut also relied on its state constitution when confronted with this situation. State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988). The relevant Connecticut constitutional provision states, “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . .“.
When the defendant in Stoddard was arrested, his girlfriend contacted an attorney who had represented him on prior charges. A partner of the defendant‘s attorney attempted to reach the defendant by telephone four times. The attorney requested each time to speak with the defendant. Three times the attorney was told that the defendant was not at the police station when in fact he was. The defendant did not know of the attorney‘s repeated attempts to contact him, and during interrogation made incriminating statements. The court stated:
[W]e conclude that a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance. Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel, in which event interrogation must cease, or whether he will forego assistance of counsel, in which event counsel need not be afforded access to the suspect. The police may not preclude the suspect from exercising the choice to which he is constitutionally entitled by responding in less than forthright fashion to the efforts by counsel to contact the suspect. The police, because they are
responsible for the suspect‘s isolation, have a duty to act reasonably, diligently and promptly to provide counsel with accurate information and to apprise the suspect of the efforts by counsel.
(Italics mine.) Stoddard, at 166-67.
In Roeder v. State, 768 S.W.2d 745 (Tex. Ct. App. 1988), the defendant argued for adherence to pre-Burbine law based on the Texas constitution. The court found that Dunn v. State, 696 S.W.2d 561 (Tex. Crim. App. 1985), a pre-Burbine case, was based on the state as well as the federal constitution so it declined to follow Burbine. 768 S.W.2d at 754. Since the suspect was not told that an attorney was attempting to see him, his waiver of counsel was not knowing, intelligent, and voluntary. 768 S.W.2d at 755.
In Bryan v. State, 571 A.2d 170 (Del. 1990), the court reaffirmed and clarified its pre-Burbine ruling in Weber v. State, 457 A.2d 674 (Del. 1983). The court declared that the Delaware constitution requires the police to inform a custodial suspect of his counsel‘s attempt to render assistance. The court conditioned this rule on the attorney‘s making a reasonable, diligent, and timely attempt to contact her client and having been specifically retained or appointed to represent the accused. 571 A.2d at 175. The court reasoned that a purported waiver can never be knowing, intelligent, and voluntary when police do not inform a suspect that his attorney seeks to give him legal advice. 571 A.2d at 176.
The fаilure of police to inform Earls before he waived his rights that the attorney had called violated the Fifth Amendment. Earls’ federal constitutional rights were violated. Thus, Earls’ state constitutional rights were violated because the State must provide at least as much protection as the federal constitution does.
II
Even if Burbine did require affirmance under the Fifth Amendment, the state constitution should be interpreted
The first two сriteria are closely related so treated together.
(1) The textual language of the state constitution; and (2) significant differences in the texts of parallel provisions of the federal and state constitutions.
Although parallel rights are contained in the state and federal provisions at issue, the language of
Furthermore, the proposed language of
The majority recognizes the difference in the proposed and adopted language, but states that this is insufficient to support an independent interpretation of the state constitution. Yet, in Gunwall, the fact that the proposed language of
The difference in language suggests the drafters meant something different from the federal Bill of Rights. This suggestion is strengthened by the fact that the other rights contained in the
(3) State constitutional and common law history.
Washington‘s Declaration of Rights in
Many of the fundamental rights contained in these charters have their origins in common law predating the American Revolution. Note, Federalism, Uniformity, and the State Constitution—State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), 62 Wash. L. Rev. 569, 569 (1987).
The fact that Washington based its Declaration of Rights on the Bills of Rights of other states that, in turn, did not rely on the federal constitution, but on common law, supports an independent reading of the state constitution.
(4) Preexisting state law.
The majority intimates that the only relevant state law considered under this factor is case law dealing specifically with
In State v. Moore, supra, the Washington court adopted the Supreme Court‘s “testimonial” interpretation of the
the “give evidence” language in
article 1, section 9 probably reflected the framers’ intent to incorporate the Boyd convergence theory. Likearticle 1, section 7 , the text of the self-incrimination guarantee seems to have come directly from Boyd. In Boyd, Justice Bradley carefully examined thefourth andfifth amendments and concluded that searches and seizures conducted in violation of thefourth amendment , were “almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned under theFifth Amendment .”Under the convergence theory adopted by the framers,
article 1, section 9 mandates the exclusion of physical and real evidence obtained in violation of the defendant‘s constitutionally guaranteed right to privacy.
(Footnote omitted.)
State v. Mecca Twin Theater & Film Exch., Inc., 82 Wn.2d 87, 507 P.2d 1165 (1973) involved a corporation attemрting to claim the privilege against self-incrimination in order to avoid a show cause order and an order to preserve and deliver a film. The issue in State v. Foster, 91 Wn.2d 466, 589 P.2d 789 (1979) was whether the defendant was “compelled” to testify because he did not have notice that the jury would be instructed on a lesser degree of assault. Since both the state and federal provisions use the word compelled, they were interpreted identically.
In State v. Wheeler, 108 Wn.2d 230, 737 P.2d 1005 (1987), the question of
While the Court of Appeals cases cited by petitioner do not specifically rely on
Prior to the United States Supreme Court decision in Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), the Court of Appeals held that the failure to notify the defendant of his counsel‘s availability and objection to interrogation prior to his being interrogated denied the defendant the assistance of counsel and vitiated his waiver of the right to counsel. State v. Jones, 19 Wn. App. 850, 578 P.2d 71 (1978). Jones signed a written waiver of his rights at the time of his arrest. While Jones was in custody, his mother retained an attorney who called the police and expressly requested that police not interrogate Jones in his absence. Jones, at 851. The police did not inform Jones of the attorney‘s call and request that he not be interrogated. During questioning, Jones made an incriminating statement that was admitted at trial. Jones, at 851-52. The court found that this denied Jones effective assistance of counsel and that his waiver was not knowingly and intelligently made. The fact that an attorney has been retained and objects to interrogation must be communicated to the defendant in order for a defendant to knowingly and intelligently waive his rights. Thus, the statement should not have been admitted at trial.
The Jones court based its decision on cases from Louisiana, Pennsylvania and Massachusetts, as well as United
Several months after the Burbine decision, the Court of Appeals decided State v. Murphy, 44 Wn. App. 290, 721 P.2d 30, review denied, 107 Wn.2d 1002 (1986). The issue was whether the court should adopt the New York rule that once an attorney is retained or appointed, the police may not question the suspect in the absence of counsel, and any waiver of the right to counsel must be executed in the presence of the attorney. Murphy, 44 Wn. App. at 292-93. See People v. Arthur, 22 N.Y.2d 325, 239 N.E.2d 537, 292 N.Y.S.2d 663 (1968); People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976). The court determined that the rule urged by appellant was not required by the
Jones was cited in Burbine as a case contrary to the Supreme Court‘s holding. Murphy is important because it expressly refused to follow Burbine. Thus, the existence of Washington law on this issue that both predates and antedates the United States Supreme Court decision supports an independent interpretation of
(5) Differences in structure between the federal and state constitutions.
Gunwall recognized that the structure of the federal and state constitutions differs in that the federal constitution
State constitutions were originally intended to be the primary devices to protect individual rights, with the United States Constitution a secondary layer of protection. Utter, 7 U. Puget Sound L. Rev. at 497; Utter & Pitler, 20 Ind. L. Rev. at 636. Accordingly, state constitutions were intended to give broader protection than the federal constitution. An independent interpretation is necessary to fulfill this intention.
Gunwall indicates that this factor will always support an independent interpretation of the state constitution because the difference in structure is a constant. 106 Wn.2d at 62, 66. The fifth criterion is a general statement of an immutable fact. The majority refuses to consider this factor because the defendant correctly perceives that the fifth factor is a simple proposition that the overall structure and purpose of the state and federal constitutions differ, therefore, it is logical to analyze them separately. Under Gunwall, this fifth criterion supports an indеpendent reading of the state constitution in any situation. The majority misunderstands the fifth Gunwall factor.
(6) Matters of particular state interest or local concern.
As the majority in Moran v. Burbine, supra, recognized, criminal law is a uniquely local matter. The Court stated that nothing in the constitution gave the Court the authority to mandate a code of behavior for state officials wholly unconnected to any federal right or privilege. 475 U.S. at 425. Thus, the Court felt that the case did not warrant a federal intrusion into the criminal processes of the states. 475 U.S. at 434. For this reason, it invited states to adopt different requirements for the conduct of state officials as a
Contrary to the conclusion of the majority, the Gunwall factors do support an independent and separate interpretation of
Although the police conduct in this case is not as egregious as the misconduct of Burbine, the conduct of police is irrelevant to the issue of waiver. 475 U.S. at 423; Stoddard, at 170 (the focus must be on the rights of the accused, not the innocence or culpability of the police). Police misconduct figures only for due process concerns. Burbine, 475 U.S. at 432-34. Thus, that the failure of the police to inform Earls of the phone call seems more unintentional than dеceptive is irrelevant. “[I]t is for the police, as an entity, to establish and maintain adequate procedures that will facilitate the reasonably prompt communication between an attorney and a suspect.” Stoddard, at 172. Also irrelevant is the fact that the interrogating officer did not know of the phone call from the attorney. The knowledge of the officer who took the message for Earls to call the attorney should be imputed to the interrogating officer. See Stoddard, at 171.
The court should interpret the state constitution more broadly than the United States Supreme Court interpretation of the federal constitution on this issue. The decision in Moran v. Burbine, supra, has been sharply criticized as sanctioning police misconduct. See Note, Moran v. Burbine: Constitutional Rights of Custodial Suspects, 34 Wayne L. Rev. 331, 356 (1987) (Court adopted vague due process standard that only requires police to act in a manner that does not shock society‘s sensibilities); Note, Moran v. Burbine: The Decline of Defense Counsel‘s “Vital” Role in the Criminal Justice System, 36 Cath. U.L. Rev. 253, 254 (1986) (decision has seriously threatened defense counsels’ ability to provide clients with meaningful assistance prior to and during custodial interrogation); Note, The
To combat the effects of Burbine, the commentators recommend states rely on their own constitutions to protect the right of criminal suspects to have the advice of counsel. See Note, 18 Loy. U. Chi. L.J. at 275-83; Note, 36 Cath. U.L. Rev. at 285.
I would reverse Earls’ conviction because his waiver of his constitutional rights was not voluntarily, knowingly, and intelligently made.
[No. 56376-4. En Banc. February 14, 1991.]
SEATTLE-FIRST NATIONAL BANK, ET AL, Appellants, v. WASHINGTON INSURANCE GUARANTY ASSOCIATION, Respondent.
Notes
It has been firmly established that a person‘s Sixth and Fourteenth Amendment right to counsel attaches only at or after the initiation of adversary judicial criminal proceedings against the defendant by way of formal charge, preliminary hearing, indictment, information, or arraignment. Kirby v. Illinois, 406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972). The right to counsel under
In urging this court to undertake an independent state analysis to resolve the issue of the validity of his waiver, Earls does refer to