STATE OF NEBRASKA, APPELLEE, V. DANIEL JOHNS, APPELLANT.
No. 37280.
Supreme Court of Nebraska
June 5, 1970
177 N. W. 2d 580
JUDGMENT FOR RELATOR.
Marer & Lazer, Michael L. Lazer, and Bennett G. Hornstein, for appellant.
Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, SMITH, MCCOWN, and NEWTON, JJ.
MCCOWN, J.
The defendant, Daniel Johns, was found guilty of grand larceny by a jury and was sentenced to 3 years in the Nebraska Penal and Correctional Complex. The defendant has appealed, and the crucial issues involve constitutional rights to counsel and against self-incrimination.
On April 1, 1968, merchandise was stolen from a loading dock area in Fremont, Dodge County, Nebraska. On the same day, a complaint and information was filed against the defendant charging him with the felonious theft of three Singer sewing machines. On April 3, 1968, the defendant was arrested in Omaha, Nebraska, by two officers of the Omaha police department on an arrest warrant received from Dodge County, Nebraska. The time of the arrest was about 10:30 a.m. After the officers read the warrant to him, the defendant asked if he could call his lawyer. They advised him that he could and he instructed the woman present to try to get hold of his lawyer. The arresting officers took the defendant to the Omaha police department. At about 1:30 p.m., Sgt. Petersen of the Fremont police department and Trooper Hansen of the Nebraska State Patrol contacted the defendant at the Omaha police department. Both officers were investigators with their respective law enforcement agencies. The defendant was taken to a room in the Omaha police station by the two officers. At 1:45 p.m., Sgt. Petersen read a full rights advisory form to the defendant. The defendant acknowledged that he understood the rights being explained and answered “yes” to the question as to whether he wished to waive his rights and give a statement. In response to the first question asked by Sgt. Petersen after the reading
The officers then handcuffed the defendant, placed him in a patrol car, and took him to Fremont, Nebraska. They arrived in Fremont at approximately 2:45 p.m. The defendant was taken to the detective bureau in the Fremont police department. The two officers and the defendant were seated around Sgt. Petersen‘s desk. The defendant was asked to remove his shoes which were taken out of the room for comparison. Thereafter for 30 minutes to an hour, in the presence of the defendant, the officers examined and discussed between themselves the contents of defendant‘s wallet and personal belongings but ignored the defendant.
At approximately 3:55 p.m., Sgt. Petersen again read to the defendant the complete rights advisory form. At this time, the defendant responded affirmatively to all questions including the question: “At this time do you wish to waive your right to remain silent and your right to have an attorney here and visit with me and give me a statement about this arrest?”
After he had requested the presence of his attorney in Omaha, the defendant did not say anything to indicate affirmatively that he wished to talk further or wanted to make a statement; nor did he do anything to indicate that he had changed his mind about having an attorney present before the rights advisory form was again read to him at 3:55 p.m. Officer Petersen testified that he thought the defendant might want to change his mind, and in answer to the question: “You were going to keep trying anyway until he did, is that right?” said: “Yes, I kept trying.”
The defendant‘s response to the questions asked at
Meanwhile, the defendant‘s attorney had telephoned to Fremont and advised the county attorney of Dodge County that he was representing the defendant and that he did not wish to have the defendant questioned. The county attorney thought that he received the call sometime between 3 and 4 p.m. The county attorney at that time agreed to call the police department and advise them that defendant‘s counsel did not wish to have the defendant questioned. The county attorney did not call the police until just after the defendant‘s statement had been completed at 5:40 p.m. At that time he gave them the message.
At a hearing outside the presence of the jury, the trial court first determined that the Miranda warnings were given; that the defendant voluntarily waived his constitutional rights; and that the confession was voluntarily made. The court overruled defendant‘s objections and admitted the confession into evidence.
The constitutional problems here involve Fifth and Sixth Amendment issues. They also involve both pre-Miranda and post-Miranda rules. Spano v. New York, 360 U. S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265, was decided in 1959, some 7 years prior to Miranda. In the Spano case, it became settled that a defendant formally charged with a felony is entitled to counsel at every step of the proceedings and that a confession obtained at a secret interrogation is involuntary and inadmissible. The Spano rule was followed by this court in State v. Longmore, 178 Neb. 509, 134 N. W. 2d 66. We said: “A secret interrogation of a defendant charged with a felony, when the accused has asked for and been denied
In May of 1964, another federal landmark case was decided. Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246. That case held that incriminating statements deliberately elicited from a defendant after indictment and in the absence of his attorney, deprived the defendant of his right to counsel, and such statements could not constitutionally be used against him at trial. In June 1964, the now famous case of Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, followed. Escobedo extended constitutional rights to counsel to a situation prior to indictment, where the investigation has begun to focus on a particular suspect and he has been taken into custody. The Supreme Court said there: “We hold only that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.”
Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974, was decided in 1966. It continued and expanded these principles in the area of custodial interrogation and the right to counsel. The language of Miranda itself is revealing. “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. * * * If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual
The state cases following Spano, all dealing with pre-Miranda trial situations, clearly demonstrate the development and interpretation of the constitutional right to counsel in New York. See, People v. Donovan, 13 N. Y. 2d 148, 193 N. E. 2d 628 (1963); People v. Failla, 14 N. Y. 2d 178, 199 N. E. 2d 366 (1964); People v. Gunner, 15 N. Y. 2d 226, 205 N. E. 2d 852 (1965).
In People v. Arthur, 22 N. Y. 2d 325, 239 N. E. 2d 537 (1968), the New York rule as to pre-Miranda cases was set out. “Once the police know or have been apprised of the fact that the defendant is represented by counsel, or that an attorney has communicated with the police for the purpose of representing defendant, the accused‘s right to counsel attaches, and this right is not dependent upon the existence of a formal retainer.” The court also said: “There is no requirement that the attorney or the defendant request the police to respect this right of the defendant.”
The same principles have been applied to post-Miranda waiver situations. In Commonwealth v. McKenna, 244 N. E. 2d 560 (Mass., 1969), the Massachusetts court held inadmissible any part of the statements obtained by interrogation after the defendant‘s attorney had called the police station to advise them that the attorney wished to be present at the interrogation of the defendant. In that case, the defendant had asked his aunt to call his lawyer at the time of arrest. He had signed a waiver of rights the evening before which recited: “I do not want a lawyer at this time.” He had not accepted the use of the telephone, and had not at any time asked the police for a lawyer, although Miranda warnings were given to him on three occasions, including the one just before interrogation. The court said: “Rights to remain silent and to assistance of counsel may be waived but cannot be forfeited.” See, also, People v. Ireland, 75 Cal. Rptr. 188, 450 P. 2d 580 (1969); United States v. Priest, 409 F. 2d 491 (5th Cir., 1969); State v. Word, 80 N. M. 377, 456 P. 2d 210 (1969); State v. Kelly, 439 S. W. 2d 487 (Mo., 1969).
In the McKenna case, the telephone call was made to the police station, while in the case before us, the telephone call was made to the county attorney. Where a defendant‘s right to counsel is effectively invoked when his counsel telephones a police officer on the desk, it should, obviously, be invoked as to a defendant formally charged with a felony when his counsel calls the county attorney who is in charge of the entire prosecution. Under the circumstances here, either one has a duty to convey the message immediately to the appropriate police officers.
The defendant not only asked to telephone his lawyer at the time of arrest, he again requested the presence of counsel orally and in writing at the first interrogation in Omaha at 1:45 p.m. Although the defendant did not at any time thereafter say or do anything to indicate affirmatively that he had changed his mind about having his attorney present, and although his attorney had telephoned to assert defendant‘s rights, nevertheless, the same police officers at 3:55 p.m. repeated the Miranda warnings and recommended the interrogation which ultimately resulted in the confession.
We hold that where the police or prosecutors know that a defendant, formally charged with a felony, is represented by counsel who has requested that no statements be taken from the defendant; and where the defendant, after being advised of his Miranda rights, has unequivocally asked for his attorney; statements deliberately elicited from the defendant by custodial interrogation designed to produce incriminating statements, and undertaken before the defendant has been given an opportunity to consult with his lawyer, are inadmissible, in the absence of an effective waiver.
Where both the defendant and his counsel have previ-
The Miranda warnings are not intended to be merely rituals to be incanted to a defendant repeatedly until the proper answers are given. Neither does the fact that the proper answers to a rights advisory are ultimately received, automatically constitute a waiver and forfeit all constitutional rights previously invoked. Repetitions of advisory warnings are not a satisfactory substitute for granting an unequivocal request for counsel.
The action of the trial court in overruling the objections to the confession and statements of the defendant was in error and the confession or statements were inadmissible.
The use of any confession obtained in violation of the due process clause requires reversal of the conviction even though unchallenged evidence adequate to convict remains. State v. Longmore, 178 Neb. 509, 134 N. W. 2d 66 (1965); Gallegos v. Nebraska, 342 U. S. 55, 72 S. Ct. 141, 96 L. Ed. 86 (1951).
The judgment is reversed and the cause remanded to the district court for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
NEWTON, J., dissenting.
The facts of this case are set out in the majority opinion. Only two questions are presented, namely: (1) Once a defendant has indicated he wants a lawyer and one is retained, can he waive his lawyer‘s presence and give a valid statement? (2) Under such circumstances, can law enforcement officers lawfully ask a defendant if he is willing to make such a waiver?
The answer to these propositions must be determined on the basis of rules laid down by the United States
Prior to the decision in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974, decided in 1966, there were many decisions handed down by the United States Supreme Court regarding various privileges incorporated in the Bill of Rights. Among these earlier decisions are Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246, and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977. It appears to have been the intent of the court in Miranda to clarify some of these earlier decisions as it is therein stated: “We granted certiorari in these cases, * * * in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow.” It must be recognized that this is not a case involving a denial of counsel. Defendant was permitted to contact his lawyer and his lawyer was not denied access to defendant. In fact, counsel made no effort to contact his client.
Although Miranda appears to be controlling in the present situation, it seems advisable to consider the Massiah and Escobedo decisions. In Massiah, the defendant was tricked into making a confession by having an accomplice, acting as an agent for law enforcement personnel, elicit statements from defendant which were listened to over a concealed microphone. Although sometimes interpreted as completely barring a confes-
The constitutional rights discussed in Miranda and other decisions are personal in nature. They are intended to protect individual defendants from coercion and trickery. They can be waived or asserted only by the defendant or his authorized representative. Counsel cannot ordinarily assert or waive them against the will of his client, but the client may do either with or without the consent of counsel. In this regard, so long as he acts knowingly, intelligently, and voluntarily, he is the master of his own fate and may determine the course to be pursued. It is conceded that the right to remain silent may be waived. Is the right to consult counsel any more sacred or important? If a defendant determines it is best to proceed and to give information in the absence of his lawyer, should he not be free to do so? Miranda answers these questions clearly. The court stated:
Miranda repeatedly makes it clear that the right to consult counsel may be waived. This is the interpretation placed upon United States Supreme Court decisions governing situations such as the one now before us by the federal courts. In Coughlan v. United States, 391 F. 2d 371 (9th Cir., 1968), the court said: “At the time the confession was obtained, the appellant was represented by court-appointed counsel. This fact was well known to the officers who interrogated the accused. No notice was given by the officers to defendant‘s counsel of the intended interviews and he was not present when the statement was taken. * * * Under this state of the facts, appellant contends that his constitutionally guaranteed right to counsel was effectively denied. We are asked to rule that any statement, admission or confession secured by peace officers from a defendant represented by an attorney, where the attorney was not timely advised of the proposed interview or interrogation, be rejected as violative of the right to counsel. Appellant recognizes that this Sixth Amendment right may be voluntarily waived, but, at oral argument, it was contended that such a waiver would never be knowing and truly voluntary unless counsel was present to advise the client. * * * It may well be that the day is approaching when the right to counsel may be expanded to the point where an accused may only be interrogated by the police in the presence of his lawyer. However, no persuasive precedent for the holding here sought has come to our attention. Appellant relies heavily on the teaching of Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Miranda specifically recognizes prior cases holding that the right to counsel may be waived. Here a clear and knowing waiver was shown. We are unwilling to attempt to ex-
In United States v. Fellabaum, 408 F. 2d 220 (7th Cir., 1969), it is said: “The issue comes down to this: May a defendant, who has an identified counsel, be questioned when, after adequate constitutional warnings, he has fully, repeatedly, and affirmatively declined the presence of counsel? We conclude, under the circumstances appearing in this case, that such questioning is fully consistent with all constitutional safeguards.” To the same effect are the following cases: Arrington v. Maxwell, 409 F. 2d 849 (6th Cir., 1969); Reinke v. United States, 405 F. 2d 228 (9th Cir., 1968); Wilson v. United States, 398 F. 2d 331 (5th Cir., 1968); State v. Lopez, 80 N. M. 130, 452 P. 2d 199 (1969); Commonwealth ex rel. Craig v. Maroney, 352 F. 2d 30 (3d Cir., 1965); Conway v. State, 7 Md. App. 400, 256 A. 2d 178 (1969); People v. Smith, 42 Ill. 2d 479, 248 N. E. 2d 68 (1969); State v. Blanchey, 454 P. 2d 841 (Wash., 1969); Mathies v. United States, 374 F. 2d 312 (D. C. Cir., 1967); Beatty v. United States, 377 F. 2d 181 (5th Cir., 1967). See, also, Shultz v. United States, 351 F. 2d 287 (10th Cir., 1965). In three of these cases, Arrington, Reinke, and Beatty, the defendant solicited the opportunity to speak. In the others he did not.
Can it be truthfully maintained that coercion exists or is present when a law enforcement officer repeats the Miranda warnings and simply inquires of the defendant if he is then willing to waive his constitutional rights? In what manner is the defendant wronged by a simple inquiry as to whether or not he will waive these rights? He is under no compulsion, has a full understanding of the situation, and the decision is his to make. Under the circumstances, it appears that the majority opinion goes far beyond any federal rules now in force and represents a material and unwarranted expansion of the law governing the admissibility of confessions. The opinion holds, in effect, that once a defendant has de-
I believe our decision in this case is illogical and incorrect and consequently, I must respectfully dissent.
WHITE, C. J., and CARTER, J., join in this dissent.
CARTER, J., dissenting,
I wholly disagree with the reasoning of the majority opinion for the reasons so aptly set forth in the dissent of Judge Newton. In my judgment, the time has come to clearly set out my concept of the law applicable to the case and the deep-rooted principles which, as I view it, are wholly abandoned by the holdings of this opinion.
In 1865, the
The language of the amendment in accomplishing this intent and purpose contained a provision stating that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *.” The purpose of this provision was primarily to prevent the former slave states from defeating the intent of the
While I am wholly in disagreement with the method employed by the Supreme Court of the United States in determining due process in the state courts by judicial fiat at the expense of the states, this court is required under the supremacy clause to recognize and be bound by the holdings of that court when rooted into the Constitution. But in the absence of specific holdings applicable to factual situations before us, I do not subscribe to the expansion of the ritualist rules of that court which can only serve to strap down and mitigate the efforts of law enforcement officers in the performance of their duties in enforcing the law.
The ritualistic limitations imposed on law enforcement officers by the Supreme Court of the United States are justified by that court on the ground that they are necessary to restrict over zealous officers from exceeding their authority. That some officers occasionally have done so, I do not deny. But instead of providing sanctions, civil or criminal, against officers who abuse their lawful authority, the court burdens all law enforcement officers, the innocent and guilty alike, with ritualistic limitations that hamper all law enforcement officers in the performance of their duty. It is a case of burning the house down to eliminate the invading cockroach. The result is that law enforcement is breaking down, criminals are permitted to continue their nefarious ways, and the certainty of punishment for criminal wrongdoing becomes less and less a deterrent to crime.
In most criminal cases coming before us, including those related to punishment for crime, the guilt or innocence of the defendant is not an issue. Such is the case here.
The limitations imposed on law enforcement officers for the purpose of coercing police activities, whether or not they are prejudicial to the rights of the defendant, utterly fail to consider the constitutional rights of the victim of the crime and the right of the public to be safe in their person and property. The public interest is completely ignored in favor of those who willfully violate the law. The result is an ever growing crime rate and a judicially supported inability of law enforcement officers to maintain law and order. Such a failure has precipitated the destruction of every major republican form of government in the past and there is no reason to believe that it will not have the same effect now and in the future.
We as judges are obligated to support the
In the instant case, the majority opinion expands the constitutional meaning of due process far beyond any decision rendered by the Supreme Court of the United States. It is for that court and not this one to expand, limit, or recede from the decisions it has rendered.
In the enforcement of the criminal law, state courts are not devoid of intelligence, integrity, and a proper regard for justice as the Supreme Court of the United States seems to imply. Instead of spending our time in the writing of quibbling opinions concerning the scope of some ritualistic formula imposed upon us, the court should engage itself in determining the guilt or innocence of the defendant. The criminal law has become a labyrinth of ritualistic rules which operate for the benefit of the criminal in escaping just punishment for his crimes. The present case is a glaring example of the misapplication of rules already senseless in their origin and purpose. It is time that we take the handcuffs off law enforcement officers and put them back on the criminal where they belong. The verdict of the jury and the sentence of the learned trial court in this case should be affirmed.
WHITE, C. J., and NEWTON, J., join in this dissent.
SPENCER, J., concurring.
I join in the reversal of the judgment herein and the remand of the cause to district court for further pro-