State v. HattawayState v. Hattaway
The question presented in this case is whether, after the initiation of adverse judicial criminal proceedings against a defendant and subsequent to the trial court‘s appointment of counsel to assist him, the state violated the defendant‘s state constitutional right to counsel by disregarding the appointment, obtaining a waiver, and eliciting a confession from the defendant while he was without the presence or assistance of his attorney. The defendant‘s confession and fruits thereof were admitted into evidence before the jury. Trial on the merits resulted in the defendant‘s capital murder conviction and death sentence. We reverse.
Additionally, we conclude that, after the initiation of adverse judicial criminal proceedings and the appointment of counsel to assist the defendant, the defendant is entitled to the help of his lawyer at any confrontation caused by the state that creates potential substantial prejudice to his right to a meaningful defense or a fair trial, if the help of a lawyer would serve to avoid or reduce that prejudice. Therefore, the state in the present case also violated the defendant‘s right to counsel when it unlawfully removed him from the trial venue without notice to his court-appointed counsel or to the trial court, transported him to another parish and confined him there virtually without means of communication with his attorney, family, friends, or potential defense witnesses.
I. FACTS AND PROCEDURAL HISTORY
The defendant, Mark Allen Hattaway, was convicted of the first degree murder of David Slade and sentenced to death. At the time of the killing, Slade was using a house trailer as his temporary work residence in Winn Parish. He lived in the trailer alone near his job at a concrete plant. On December 4, 1988, Slade‘s dead body was discovered in the woods a short distance from the trailer.
Patsy Admire, Hattaway‘s girlfriend, formerly had lived in the trailer with a different concrete plant worker. On December 2, 1988, she learned that Slade was using the trailer when she рicked up some of her belongings there. Later that evening Admire and Hattaway borrowed her brother‘s truck and drove to the trailer with the intention of plying Slade with alcohol and “rolling” him; but when Slade refused to go drinking, they robbed him. During the robbery Slade was fatally shot with a pistol that Admire‘s brother kept in his truck.
The criminal investigation quickly focused on Admire and Hattaway. The authorities learned that the murder weapon was her brother‘s pistol, which her brother kept in his truck, and that he loaned the truck to Admire and Hattaway on the evening of the offense. Hattaway voluntarily submitted to a series of interviews and polygraph tests. After receiving Miranda warnings, Hattaway maintained that he
On January 9, 1989, Hattaway was charged with an unrelated burglary, arrested, and incarcerated in the Winn Parish jail. He was subjected to custodial interrogation about the Slade murder, during which he claimed innocence but said that Admire had told him that she had killed Slade. The officers informed Hattaway that Admire twice named him as the killer: At first she said he killed in self-defense, but later she depicted him as a deliberate killer. Based on this information, the officers rearrested Hattaway in jail, and charged and booked him with the murder of Slade. Hattaway continued to insist upon his innocence during several hours of custodial interrogation.
On February 20, 1989, Hattaway was transferred to the Winnfield City jail to prevent him from communicating with Admire, who was also confined in the Winn Parish jail.
On February 21, 1989, Hattaway was brought into court for his initial court appearance or first judicial hearing.
By the Court: Do you have an attorney?
By Mr. Hattaway: No, sir.
By the Court: Are you financially able to afford an attorney?
By Mr. Hattaway: No, sir.
By the Court: Mr. Hattaway, Mr. Herman Castete of the Indigent Defender Board is appointed to represent you in this case. You will be given his phone number. You will have the opportunity and the right to call him at reasonable times to discuss the case. I encourage you to do that. If you have difficulty in reaching him or talking with him or experience a problem, you are to let the Sheriff‘s Office know and they in turn will tell me and it will be corrected.
By Mr. Hattaway: Yes, sir.
By the Court: Do you understand?
By Mr. Hattaway: Yes, sir.
By the Court: Do you have any questions?
By Mr. Hattaway: No, sir.
The trial judge also set bail at $150,000 and remanded Hattaway to jail. The appointed attorney was not present during this initial court appearance. On the same day, before he could talk to his attorney, Hattaway was transferred from Winn Parish to the Bienville Parish jail in Arcadia.
On February 22, 1989, while incarcerated in the Bienville Parish jail, Hattaway informed the jailer that he wanted to tаlk to someone from Winn Parish about his case. The Bienville Parish jailer testified twice, possibly inconsistently. At the suppression hearing, he testified that Hattaway merely wanted to talk to “someone from Winn Parish;” at trial, however, the jailer testified that Hattaway had asked for “the officers down here in Winn Parish.” A Bienville Parish deputy notified the Winn Parish sheriff‘s office of the request. Two Winn Parish deputies immediately drove to Arcadia and interrogated Hattaway in the Bienville Parish jail. Prior to the questioning, the deputies issued Hattaway oral and written warnings as follows:
Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time.
You also have the right to stop answering at any time until you talk to a lawyer. (emphasis added).
The warnings did not inform Hattaway that he had a court-appointed attorney, Herman Castete, or that he had a right to call and confer with Castete before deciding whethеr to talk to the officers. The officers also did not notify Hattaway‘s attorney of their plans to interrogate his client.
The officers obtained from Hattaway the following written waiver:
I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.
After signing the waiver form, Hattaway confessed to intentionally shooting Slade as part of an armed robbery. Hattaway‘s statement describing the killing and the role he played in the crime removed any question as to whether there was probable cause to charge him with first degree, rather than second degree, murder. Compare
On the morning after the statement was obtained in the Bienville Parish jail, February 23, 1989, Hattaway was returned to the Winn Parish jail. Patsy Admire was still confined to that same jail at this time. Hattaway‘s attorney, Herman Castete, was notified of his appointment late that day.
Hattaway was indicted with first degree murder on April 12, 1989. The defense attorney moved to suppress Hattaway‘s confession and the evidence obtained as a consequence thereof. After a hearing, the motion to suppress was denied. Subsequently, Hattaway‘s confessions were introduced at his guilt and penalty trials as the centerpiece of the state‘s case against him. The state also introduced circumstantial evidence and an oral admission by Hattaway to a cousin that tended to inculpate Hattaway in the murder. Hattaway was convicted by the jury of first degree murder on September 13, 1990. The next day, after the penalty hearing, the jury recommended the death sentence, naming as the single aggravating circumstance the fact that the killing had been committed in the course of an armed robbery.
Hattaway moved for a new trial, but the motion was denied. At the hearing on the motion, Dr. Paul Ware, an expert in psychiatry and neurology, testified that in his opinion, Hattaway was unable to comprehend the waiver form read to him on February 22, 1989. Dr. Ware‘s opinion was based on his findings that Hattaway has a functional IQ of 73, reads on the 3.7 grade level, and comprehends reading on the second grade level. According to school records, Hattaway was enrolled in special education classes from the 3rd to the 10th grade, after which he dropped out of school. Dr. Ware also testified that defendant had, prior to the shooting, been enrolled in a drug abuse program and was chemically dependant. Further, Dr. Ware opined that Hattaway has an avoidant and schizoid personality, and suffers from dysthymia, a chronic depressive condition. Hattaway‘s mother testified at the trial that he was unusually influenced by the suggestions of others.
The trial court sentenced Hattaway to death on March 1, 1991. Hattaway appealed from his conviction and sentence to this court.
II. LEGAL PRECEPTS
The defendant‘s appeal raises issues pertaining to the right to the assistance of counsel under both the Louisiana and federal constitutions. The appropriate procedure for deciding a case such as this is to analyze state law, including state constitutional provisions, before reaching a federal constitutional claim. State v. Perry, 610 So.2d 746 (La.1992). The right to counsel guarantee of
A. Sixth Amendment Pre-Trial Right to Counsel
It is not difficult to state the basic
Because the concepts of “attachment“, “adverse judicial criminal proceedings“, “critical stages” and “waiver of the right to counsel” are important to the interpretation of our state right to counsel provision, we will examine briefly the significant cases in which they evolved and have been explained.
1. What is a “Critical Stage” of the Proceedings?
Between 1932 and 1972, the United States Supreme Court steadily expanded the scope of the pretrial right to counsel. This expansion was based primarily on a functional analysis of whether the presenсe of counsel at a particular stage of the criminal process was necessary to protect the defendant‘s ultimate interest in a fair trial. See Comment, The Pretrial Right to Counsel, 26 Stanford L.Rev. 399-400 (1974). During this era, the Supreme Court held essentially that whenever the assistance of counsel was necessary for this purpose, the
In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Court recognized the importance of the assistance of counsel during “critical stages” prior to trial by reversing the convictions of defendants who had been denied legal assistance until immediately before the commencement of a capital rape trial. The Court found that because of the lack of time for preparation and investigation, the legal assistance provided could not have been effective. Therefore, the Court held that the defendants had been denied due process by the deprivation of counsel during “perhaps the most critical period of the proceedings against [them],” the period between arraignment and trial. Id. at 57, 53 S.Ct. at 59.
Almost thirty years later, the Court used the Powell reasoning to develop a functional “critical stages” analysis. In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), the Court held that while arraignment would not necessarily be a “critical stage” in all jurisdictions, it was in an Alabama capital case because the defendant was required to raise a number of defenses and pleas at the arraignment or lose them permanently. The rationale of this decision was that counsel is constitutionally required at all critical stages in criminal proceedings at which rights may be preserved or lost. Using this analysis,
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court enlarged the scope of the right to counsel and indicated that it extends to all pretrial identification confrontations. Although the line-up in that case occurred after the defendant‘s indictment, the Court expansively indicated that the right to counsel attaches at any “critical stage“, regardless of when or where it happens or whether adverse judicial criminal proceedings have been initiated:
[T]he accused is guaranteed that he need not stand alone against the state at any stage of the prosecution, formal or informal, in court or out, where counsel‘s absence might derogate from the accused‘s right to a fair trial....
In sum, thе principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant‘s basic right to a fair trial....
Id. at 226-227, 87 S.Ct. at 1931-32. The Wade Court defined as a “critical stage” any pretrial procedure in which a meaningful defense or a fair trial could potentially be impaired if an uncounselled defendant were subjected to a confrontation by the state. In succeeding cases, however, the Court retrenched from the language of Wade and limited the “critical stages” analysis to the period following the commencement of adverse judicial criminal proceedings.
2. The Right to Counsel “Attaches” When “Adverse Judicial Criminal Proceedings” Begin
In 1972, a plurality of the Supreme Court concluded that the right to counsel cannot attach prior to the initiation of adverse judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The plurality reasoned that because the purpose of the right to counsel is to assure rough equality of legal representation between the defendant and the state in court proceedings, the right does not come into play until the adversarial or judicially supervised accusatory phase of the criminal process is reached. The opinion of the court elаborated:
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that the defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.
Id. at 689-690, 92 S.Ct. at 1882 (citations omitted). Subsequently, the Court adopted the Kirby plurality‘s rationale and held that while a person is entitled to assistance of counsel during confrontations that may be considered “critical stages” of the criminal process, the right to counsel “attaches” only after the initiation of adverse judicial
The plurality in Kirby did not draw a single, bright fact-based line marking the earliest point at which the
Furthermore, the Supreme Court has plainly indicated that in most jurisdictions a person‘s initial сourt appearance or first judicial hearing signals the beginning of judicial criminal proceedings and the shift of the state‘s role from investigation to accusation for purposes of the attachment of his right to counsel. McNeil v. Wisconsin, ___ U.S. ___, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (Right to counsel attached and had been invoked when defendant was brought before a county court commissioner for his “initial appearance” on an armed robbery charge.); Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (The defendant‘s “arraignment“, actually a “first appearance” rather than a pleading-stage formal arraignment, marked the initiation of adverse judicial proceedings.); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (The defendant‘s arraignment on the warrant caused the right to counsel to attach.). The “arraignment on the warrant” that occurred in Brewer v. Williams, supra, was substantially similar to the first step in judicial criminal proceedings in most American jurisdictions. This first step is also referred to as the “first appearance“, “initial presentment“, or “preliminary arraignment“. 1 LaFave & Israel, Criminal Procedure, § 1.4, p. 21 (1984); Kamisar, LaFave & Israel, Modern Criminal Procedure 8-9 (4th ed. 1974); Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional Premises Underlying the Law of Confessions, 17 Amer.Crim.L.Rev. 1, 28-29 (1979).
3. Waiver of the Right to Counsel
In general, the right to counsel may be waived just as other constitutional rights. However, in the 1960‘s, the Supreme Court‘s cases established a principle that erected a virtually per se barrier to a represented defendant‘s waiving the right to counsel on his own with respect to incriminating statements deliberately elicited by the state after the commencement of accusatory or adverse judicial criminal proceedings. In the 1980‘s, the Court lowered the waiver standards, allowing a state to prove as easily as it could a Miranda waiver that an unrepresented person relinquished his
The Supreme Court first characterized the question of waiver of the
In the 1960‘s, the Supreme Court established a virtually absolute rule that the state cannot constitutionally obtain incriminating statements frоm a defendant after the initiation of adverse judicial criminal proceedings in the absence of his retained or appointed counsel. Although the principal cases dealt with post-indictment interrogations and covert elicitations, the underlying principle of each decision was that once the state‘s role shifts from investigation to accusation, the defendant is entitled to the assistance of counsel as the exclusive medium between himself and the state during adverse judicial criminal proceedings. By the same token, the decisions imply that during the judicially supervised accusatory process, the state cannot circumvent defense counsel to obtain a waiver of rights from the accused.
In Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), an indicted defendant was coercively interrogated by police until the early hours of the morning despite his repeated requests to see his lawyer. A unanimous Court reversed his conviction on the ground that the confession obtained by this interrogation was involuntary and therefore should not have been admitted into evidence at trial. Four Justices, in two concurring opinions, stated that they would also have reached this result on the ground that Spano‘s
The Court adopted the position of the concurring Spano Justices in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). After Massiah had been indicted for conspiracy to possess and to distribute cocaine, retained a lawyer, pleaded not guilty, and had been released on bail, a government agent electronically eavesdropped on his conversation with a cooperating co-indictee. Government agents instructed the informant to engage the defendant in conversation relating to the crimes. Massiah made several incriminating statements, and these were brought before the jury through the testimony of the government agent. The Court reversed Massiah‘s conviction on the ground that the incriminating statements were obtained in violation of Massiah‘s rights under the
A year later, in McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965) (per curiam), the Court summarily applied the
Two years later, in Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967) (per curiam), the Court held thаt these principles apply when the confrontation is instigated by the suspect rather than the government agent and the interrogation is overt instead of covert. In that case, where the defendant requested the meeting and initiated and led the conversation in which incriminating statements were made to an undercover agent, and which involved explicit questioning, the Solicitor General made the argument that the decisive fact in Massiah was that the police set up the confrontation between the accused and a police agent at which incriminating statements were elicited. The Court rejected this argument in an opinion that simply cited Massiah.
The Supreme Court continued to apply and explain the Massiah, McLeod and Beatty principles in the 1970‘s, and 80‘s. In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the Court held that the state clearly violated the defendant‘s
Recently, in Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988), the Supreme Court relaxed the strict standard for a waiver of the right to counsel, except in cases in which the suspect is in fact represented by counsel and adverse judicial criminal proceedings have commenced. In Patterson, the Court refused to bar police from approaching a suspect whose
On the other hand, the Supreme Court in Patterson did not diminish the virtual per se rule prohibiting the state‘s circumvention of defense counsel after adverse judicial criminal proceedings have been initiated and defense counsel has been retained or appointed. The Court noted, “as a matter of some significance” that the defendant had not retained or had a lawyer appointed to represent him at the time he was questioned by the authorities. Id. at 290, n. 3, 108 S.Ct. at 2393, n. 3. The Court warned that “[o]nce an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect. See Maine v. Moulton.... Indeed, the analysis changes markedly once an accused even requests the assistance of counsel. See Michigan v. Jackson....” Id. at 290, n. 3, 108 S.Ct. at 2393, n. 3. In fact, the Patterson Court expressly limited its holding to unrepresented defendants when it stated:
[B]ecause the Sixth Amendment‘s protection of the attorney-client relationship— “the right to rely on counsel as a ‘medium’ between [the accused] and the State“—extends beyond Miranda‘s protection of the Fifth Amendment right to counsel, see Maine v. Moulton ... there will be cases where a waiver which would be valid under Miranda will not suffice for Sixth Amendment purposes.
Consequently, in view of Patterson‘s reservation of greater rights to represented defendants and Maine v. Moulton‘s reaffirmation of the state‘s obligation not to circumvent the represented defendant‘s right to be dealt with only through defense counsel during adverse judicial criminal proceedings, which was recognized and approved by Patterson, we believe that the
Other state courts have reached the same conclusion. The Texas Court of Criminal Appeals, for example, concluded:
[I]f a suspect is in fact represented by counsel and the case progresses to the point at which the Sixth Amendment applies, the Sixth Amendment imposes requirements—including waiver standards—not demanded by Miranda and the Fifth Amendment. These requirements have the purpose of “preserving” the attorney-client relationship, an objective essential to Sixth Amendment concerns and of no significance to Miranda concerns. Thus, we hold that where a relationship between the accused and his attorney is established after the Sixth Amendment has become applicable, the Sixth Amendment precludes dissolution of that relationship in the absence of counsel.
Holloway v. State, 780 S.W.2d 787, 795 (Tex.Cr.App.1989). See also, Dew v. United States, 558 A.2d 1112, 1116 (D.C.1989) (“[O]nce counsel has been ‘accepted by appointment’ in a criminal case, the sixth amendment bars police-initiаted interrogation of the accused except through arrangements with defense counsel“); People v. Kidd, 129 Ill.2d 432, 136 Ill.Dec. 18, 544 N.E.2d 704 (1989) (The state violated the defendant‘s
B. Article I, § 13 Pretrial Right to Counsel
Whatever else it may mean, the right to counsel granted by
1. Attachment of the State Constitutional Right to Counsel at the Initiation of Adverse Judicial Criminal Proсeedings
Louisiana‘s original guarantee of the right to counsel followed the adoption of the
In 1963, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), elevated the right of an indigent defendant to court-appointed counsel in state felony trials to the federal constitutional level. Gideon, in combination with the “critical stages” expansion of the 1960‘s and early 70‘s, discussed in detail in preceding sections of this opinion, outmoded many of Louisiana‘s constitutional and statutory provisions. After these developments, it was clear that the federal right to counsel attached at least as early as the initiation of adverse judicial criminal proceedings; thus, the need for the assistance of counsel could arise at critical stages of the proceedings well before the arraignment. Consequently, Louisiana‘s response in 1966 by adding Articles 512 and 513 of the Louisiana Code of Criminal Procedure to provide that the court shall appoint counsel to assist an indigent “before he pleads to the indictment” did not assure that indigents would be afforded the assistance of counsel at each critical stage of the adverse judicial criminal proceedings. See
A 1971-72 study of the Louisiana court system called attention to the need for
Hence, by the time of the drafting and ratification of the 1974 Louisiana Constitution in 1973-74, Gideon v. Wainwright had constitutionalized an indigent‘s right to court-appointed counsel in state trials, Kirby v. Illinois had fixed the attachment of the
Considering the purposes and function of the first judicial hearing established by
At the time of the adoption of
Therefore, even after the attachment of the right to counsel, not all activity involving the defendant constitutes a “critical stage.” For instance, the Court made clear in Wade itself that various preparatory steps, such as systematized or scientific analyzing of the accused‘s fingerprints, blood sample, clothing, hair, and the like are not critical stages because there is minimal risk that the absence of defense counsel at such stages might derogate from the defendant‘s right to a fair trial. United States v. Wade, 388 U.S. at 227-228, 87 S.Ct. at 1932. Accordingly, while limiting its temporal scope, the Court adhered to the same functional “critical stages” test that required it “to analyze whether potential substantial prejudice to defendant‘s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Id. at 227, 87 S.Ct. at 1932.
Because there is no evidence in the text or drafting history of
3. Waiver of the State Constitutional Right to Counsel
By January of 1973, when the Louisiana Constitutional Convention was meeting in its first sessions, the United States Supreme Court had established strong precedents under the Sixth and Fourteenth Amendments barring deliberate police efforts to elicit incriminating statements from an accused in the absence of defense counsel after the commencement of adverse judicial criminal proceedings. See Massiah, supra; McLeod, supra; Beatty, supra. The Court‘s cases reflect an underlying principle that, under these circumstances, the state is prohibited from communicating with the defendant about the subject of the proceedings except through his legal representative, regardless of who initiated the confrontation or whether the elicitation was overt or covert. This principle clearly indicates that a defendant in this situation has a right to rely on his attorney as the medium between himself and the state; and, correlatively, that the state owes him an affirmative obligation not to circumvent or dilute the protection afforded by the right to counsel. That the Court has elaborated upon this in later cases confirms and does not take away from the fact
The text and history of
The fundamental concept of defense counsel as the exclusive medium between the accused and the state is also inherent in other constitutional and ethical precepts designed to safeguard the rights of individuals in our system of adversary criminal justice. First,
Second, district attorneys, as constitutional officers and as officers of the court, owe a duty under their oaths and ethical precepts to carry out the state‘s affirmative duty not to act in a manner that circumvents or dilutes the protection afforded by the right to counsel during the accusatory stage of the criminal process. A district attorney has charge of every criminal prosecution by the state in his district,
Third, this court has recognized that, in some instances, even before the initiation of adverse judicial criminal proceedings, the concept of our accusatory system of justice may require the state to honor the accused‘s right to rely on his attorney as the medium between himself and the state. Along with the prevailing body of other state courts, we have expressed the view that statements obtained as the result of police interference with communications between an attorney and a suspect must be suppressed. State v. Matthews, 408 So.2d 1274 (La.1982) (Attorney‘s request to speak with defendant refused and instruction to cease interrogation ignored); State v. Jackson, 303 So.2d 734 (La.1974) (Lawyer retained by defendant‘s family denied permission to communicate with defendant who was not told of lawyer‘s attempt). See Moran v. Burbine, 475 U.S. 412, 439 n. 10, 106 S.Ct. 1135, 1150-51 n. 10, 89 L.Ed.2d 410 (1985) (Stevens, J. dissenting, quoting Brief for American Bar Association as Amicus Curiae 4 n. 2). State v. Thomas, 406 So.2d 1325 (La.1981) (Defendant‘s statutory right to procure and confer with counsel attaches at post-arrest, pre-accusatory line-up); State v. Weedon, 342 So.2d 642 (La. 1977) (State‘s elicitation of incriminating statement from suspect during booking procedure in breach of agreement with defense counsel violated the state constitutional right to counsel). Cf., State v. McGhee, supra (
The previous decisions of this court dealing with the right to the assistance of counsel have not focused on the analysis, interpretation, and application of the
Moreover, at times we may have partially misperceived the Supreme Court‘s interpretations of the Sixth Amendment right to
Furthermore, State v. Harper, supra, is also distinguishable from the present case on its facts. In Harper, the state did not commit a second, separate violation of the defendant‘s right to counsel by arranging to have him confined virtually incommunicado in another parish for investigatory purposes without the knowledge or assistance of his court-appointed counsel. On the other hand, in Harper, the police officers reminded Harper that he had court-appointed counsel with whom he was free to consult prior to talking with them about a waiver or submitting to interrogation. The officers in the present case did not remind Hattaway of the court-appointed attorney or specifically offer to let Hattaway confer with him. Instead, they gave Hattaway a warning that reasonably could have led him to believe that he did not have a court-appointed lawyer from whom he could receive assistance prior to deciding whether to waive his rights or talk to the officers. Therefore, even under the partially anomalous federal right to counsel principles applied in Harper, the conduct of the deputies in Bienville Parish toward Hattaway fell below that standard and amounted to a violation of his constitutional rights.
III. APPLICATION OF THE PRINCIPLES OF ARTICLE I, § 13
Applying the principles of
Hattaway‘s right to the assistance of counsel at each stage of these proceedings attached when the state brought him to court on February 21, 1989 for the initial court appearance or first judicial hearing, after he had been arrested and charged with second degree murder, and the judge explained the charge to him, appointed counsel to assist him, set his bail and recommitted him to jail pending preliminary examination. At this point, adverse judicial criminal proceedings had been initiated against him. Hattaway was no longer subject
The state first violated Hattaway‘s right to counsel by transporting him from Winn Parish to Bienville Parish without notice to his court-appointed counsel or to the trial court. The state‘s removal of Hattaway from Winn Parish was itself a stage of the proceedings at which he was entitled to the assistance of counsel. This confrontation between the state and Hattaway involved grave and unlawful potential for prejudice to his right to a fair trial. The removal was not authorized by law. The judiciary had assumed responsibility for his custody, and
The state cannot and does not argue that Hattaway waived his right to the assistance of counsel during the confrontations involved in his unlawful removal from Winn Parish and virtually incommunicado confinement in Bienville Parish. It is clear that Hattaway had no opportunity to waive his right to counsel during that stage of the proceedings.
The state violated Hattaway‘s
The state‘s argument that Hattaway validly waived his Sixth Amendment right to counsel prior to the Bienville Parish interrogation is without merit. First, the argument is flawed intrinsically because it is based on a misunderstanding of the federal right to counsel principles. Second, and more important, the argument is incongruous because it fails to consider and address the state constitutional right to counsel principles upon which our decision in the present case is based.
The state concedes that under Beatty v. United States, supra, the fact that Hattaway may have initiated the confrontation with the police did not justify their communication with him about the case while he
The state‘s argument is even more inappropriate when considered within the context of our state constitutional right to counsel principles. The assistance of counsel guarantee of
Accordingly, with all of the foregoing precepts in mind, we have concluded that the
Hattaway advances other arguments in support of his contention that his conviction and sentence should be overturned, including the following: (i) that he was denied his constitutional right to the effective assistance of counsel at the penalty phase of the criminal proceedings and in his efforts to suppress his incriminating statements; (ii) that the exclusion for cause of an eligible prospective juror who expressed reservations against the death penalty violated his constitutional rights to a fair trial and an impartial jury; (iii) that his constitutional rights were violated by the introduction of evidence and argument irrelevant to his moral culpability; and (iv) that his sentencing jury was precluded from considering evidence in mitigation of death, thereby creating an unconstitutionally unacceptable risk that death was imposed in disregard of facts calling for a lesser sentence. Given our decision on the primary issue addressed in this review, we find it unnecessary to consider and resolve these remaining arguments raised by defense counsel.
IV. HARMFUL ERROR
The state does not contend that the introduction at the guilt and penalty phases
Hattaway‘s confession and the fruits thereof formed the core of the state‘s case. In addition to the tape recording of the defendant‘s confession, which was played for the jury, the state introduced a corrected transcribed version of the confession which the defendant had reviewed and initialed. The state also introduced the testimony of a Winn Parish Sheriff‘s Office investigator concerning information given to him by the defendant, as a consequence of his confession, regarding the location of the ammunition clip from the murder weapon. Without the confession and its fruits, the prosecution‘s evidence consisted only of Hattaway‘s cryptic oral admission of guilt to his cousin and the circumstantial evidence implicating him in the crime. This evidence did not necessarily paint Hattaway as the “trigger person” or the main mover in the criminal scheme. There was neither eyewitness testimony nor direct physicаl evidence placing Hattaway at the scene of the killing. The evidence, however, indicated that the criminal plan that resulted in Slade‘s murder could not have been conceived or executed without Patsy Admire, her brother‘s truck and gun, and her encounter with David Slade at the house trailer prior to the murder. In the absence of the tainted evidence, the state‘s case did not convincingly rule out the possibility of provocation by the victim or other extenuating and mitigating circumstances. Consequently, we conclude that there was a reasonable possibility that the introduction of the incriminating statements and their evidentiary products could have contributed to the capital murder conviction and death sentence. Therefore, under the circumstances of this case, we cannot say that the error was harmless beyond a reasonable doubt.
CONCLUSION
For the reasons assigned, the defendant‘s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COLE, J., concurs believing federal jurisprudence requires this result.
HALL, J., concurs with reasons.
MARCUS, J., dissents and assigns reasons.
LEMMON, J., dissents and will assign reasons.
HALL, Justice, concurring.
[Filed July 8, 1993]
I agree that the defendant‘s Sixth Amendment right to counsel attached when the state commenced adversary formal judicial proceedings through the 72-hour hearing mandated by
Once the right of counsel has attached and has been asserted, the state must honor it. The Sixth Amendment guarantees the accused, after the initiation of formal charges and especially after the appointment of counsel, the right to rely on counsel as a “medium” between him and the state. This guarantee includes the state‘s affirmative obligation not to act in a manner that circumvents the protection accorded to the accused by the right to counsel. Maine v. Moulton, supra.
It matters not that the officers interrogating the accused may not have been aware that counsel had been appointed for him. Sixth Amendment principles require that the state‘s knowledge be imputed from one state actor to another. One set of state actors (the police) may not claim ignorance of the appointment of counsel by another state actor (the court). Michigan v. Jackson, supra.
Applying these precepts of federal constitutional law to the present case, after commencement of adversarial judicial proceedings and the appointment of counsel for the defendant, further interrogation of the defendant by the police was precluded, regardless of by whom initiated, without the presence of counsel or the opportunity for the defendant to confer with counsel. Initiation of further contact with the police by the defendant did not and could not constitute a waiver of his right to counsel under these circumstances. It follows, of course, that the statements made by the defendant during the course of the uncounseled interrogation must be excluded from evidence.
Since federal constitutional law compels this conclusion, it is not necessary to rest the decision on the provisions of
MARCUS, Justice (dissenting).
[Filed July 2, 1993]
I dissent from the majority‘s conclusion that the state did not obtain a valid waiver from defendant of his Sixth Amendment right to counsel.
Under Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), it is clear that if police initiate interrogation after a defendant has asserted his right to counsel, any waiver of the defendant‘s right to counsel for that police-initiated interrogation is invalid. Under Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), police may not knowingly circumvent the accused‘s right to have counsel present in a confrontation between the accused and a state agent. I believe neither situation is present in this case.
The record indicates that defendant requested a meeting with Winn Parish deputies. No evidence was produced showing the deputies were aware defendant was represented by counsel, or that they made any knowing effort to circumvent his right to have counsel present. I find no indication from the record that the intent of the police in moving defendant from Winn Parish to Bienville Parish was to deprive him of contact with his attorney. Rather, the police had a legitimate interest in preventing defendant from communicating with Patsy Admire, a witness to the shooting who was also confined in the Winn Parish jail.
I believe a fair reading of the U.S. Supreme Court decisions in this area, together with our decision in State v. Harper, 430 So.2d 627 (La.1983), compels the conclusion that a defendant who has invoked the right to counsel or been appointed counsel may validly waive his right to have counsel present if he initiates contact with police and there is no evidence that police have knowingly circumvented his right to counsel.