STATE OF OREGON, Respondent on Review, υ. HOWARD CLIFTON SPARKLIN, Petitioner on Review.
(CA A21337; SC 29421)
STATE OF OREGON
Argued and submitted July 6, affirmed November 29, 1983
petition for rehearing denied December 28, 1983
672 P.2d 1182 | 296 Or. 85
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.
Rex Armstrong, Portland, Robert C. Welsh, Los Angeles, California, and Ronald K.L. Collins, Salem, filed amicus curiae brief for the American Civil Liberties Union Foundation of Oregon, Inc.
ROBERTS, J.
Linde, J. concurred and filed an opinion in which Lent, J. joins.
The question is whether defendant‘s request for an attorney at arraignment bars all police interrogation undertaken without the presence of counsel, unless defendant volunteers information on his own initiative and not in response to questioning, and statements are otherwise voluntarily obtained.
Defendant was arrested in Eugene after security personnel at a retail store notified police of their suspicion that defendant and his companion, Taylor, purchased merchandise with a stolen credit card. The credit card was issued to Steven Mansell. The next morning defendant was arraigned on a forgery charge. At the arraignment defendant requested and was provided with an attorney. Portland authorities had information which implicated defendant in an incident in which Steven Mansell had been beaten and his automobile and credit cards stolen. That evening, without notice to his attorney and without providing defendant an opportunity to consult with his attorney, two Portland detectives interrogated defendant about the assault on Mansell and a factually unrelated murder and robbery in Portland of a man named Davidson for which defendant was tried and convicted in this case. Miranda1 warnings preceded the questioning. Defendant signed a waiver of his rights. His confession to participation in the Davidson murder gained at this interrogation session was used against him at trial. It is from this conviction that defendant appeals.
Defendant seeks to suppress his confession as the product of compelled self incrimination, and as evidence obtained in the absence of an attorney at a time when he had the right to an attorney‘s presence and advice.
Defendant suggests first that the Miranda warnings given him in advance of interrogation are inadequate to protect his
Recently in State v. Mains, 295 Or 640, 669 P2d 1112 (1983), after examining the federal Miranda warnings, we stated:
“The Oregon Constitution similarly guarantees the right not to be compelled to testify against oneself in a criminal prosecution.
Or Const, Art I, § 12 . Like the United States Supreme Court, this court is called upon from time to time to specify the procedure by which a guarantee is to be effectuated. Such specifications are not the same as interpretations of the guarantee itself, that is to say, they may not always and in all settings be the only means towards its effectuation but may be adapted or replaced from time to time by decisions of this court or by legislation in the light of experience or changing circumstances.” 295 Or at 645.
In Mains we required the authorities to give additional warnings to a represented defendant who, at the state‘s instance, submitted to a psychiatric examination and chose to proceed without the presence of his attorney.
Defendant asserts that his request for an attorney at arraignment activated both his derivative right to the presence of an attorney to prevent compelled incriminating disclosures, rights found in
We begin with defendant‘s state constitutional claims.5
We do not regard this defendant‘s request for an attorney at arraignment as an assertion of his right to be free from compelled self incrimination. The need for an attorney‘s presence at interrogation arises when the state may elicit from defendant admissions or confessions. At arraignment defendant is not confronted with an atmosphere of coercion, nor does anyone seek to gain admissions from him. The request for an attorney here is a matter of routine, and without some more explicit request by defendant we do not view it as a
In this case the interrogating officers knew that defendant was represented by an attorney on the forgery charge. In New York interrogation with such knowledge is forbidden. The New York rule, grounded in the state‘s constitutional and statutory guarantees of the privilege against self incrimination, the right to counsel and due process of law, prohibits interrogation of any person taken into custody, whether as an accused, a suspect or a witness, if the police know he has an attorney or if they know an attorney wishes to speak with him. See People v. Hobson, 39 NY2d 479, 348 NE2d 894, 384 NYS2d 419 (1976); People v. Arthur, 22 NY2d 325, 239 NE2d 537, 292 NYS2d 663 (1968). The only way a suspect can waive the right to an attorney at interrogation is in the presence of counsel.
We examined the New York rule in State v. Haynes, 288 Or 59, 602 P2d 272 (1979), cert den 446 US 945, 100 S Ct 2175, 64 LEd 2d 802 (1980). In Haynes, the police knew defendant‘s attorney was attempting to contact him. They did not inform defendant of this and obstructed the attorney‘s efforts to make contact with defendant. They obtained from defendant a waiver of his right to an attorney for interrogation. We held that no waiver could be adequate unless defendant knew his attorney wanted to see him. However, we did not interpret
3. Defendant premises his federal constitutional claim on Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981). He asserts that his request for an attorney at arraignment was an invocation of his
In Edwards defendant requested an attorney after the police advised him of his rights preparatory to interrogating him.7 The police resumed interrogation the next day without complying with his request. The court held:
“*** [W]hen an accused has invoked his right to have counsel present during custodial interrogation, 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. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 US at 484-85. (Footnote omitted.)
Had Sparklin made a similar request in anticipation of, or during, interrogation he would have been entitled to the minimum protections afforded by the
Defendant‘s next argument is premised upon his
The state had already initiated a “criminal prosecution” against defendant and as a result his right to an attorney under
“The constitutional right to counsel is meant to counteract the handicaps of a suspect enmeshed in the machinery of criminal process. Once accused has sought the safeguard of counsel, it is unfair to let skilled interrogators lure him from behind the shield into an unequal encounter. To permit officers to question a represented suspect in the absence of counsel encourages them to undermine the suspect‘s decision to rely upon counsel. Such interrogation subverts the attorney-client relationship.” (Footnotes omitted.) Note, Interrogation and the Sixth Amendment: The Case for Restriction of Capacity to Waive the Right to Counsel, 53 Ind LJ 313, 315 (1977-1978).
Once an attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend. No waiver of that right may occur until defendant has consulted with his attorney. In the smallest civil matter an attorney and his or her investigator are restricted in their contact with a represented party.11 We can certainly require no less of prosecutors or police in criminal matters. A defendant may, of course, volunteer statements, but this must be on his own initiative and not in response to questioning. See State v. Beaver, 248 Or 101, 432
We are left then with the question of the scope of the
The development of the right to an attorney at pretrial confrontations between the state and the individual reflects a concern for the preservation of the fairness of trial and counsel‘s effectiveness in defending against the charge.12 Interrogations, like line-ups, polygraph sessions and psychiatric examinations, are investigative tools by means of which the state builds its case against the accused. An attorney‘s presence at these encounters may serve to forestall the use of impermissibly derived evidence at trial.
Yet the
“The right to counsel attaches to certain evidence-gathering processes which are deemed ‘critical stages’ of the prosecution as an extension of a defendant‘s right to representation by counsel in court. Any pre-trial adversarial contact of the state
and a defendant at which some benefit of counsel would be lost if counsel is not present, that is, at which the state‘s case may be enhanced or the defense impaired due to the absence of counsel, may be considered a critical stage of the prosecution at which defendant has a right to the presence of counsel.”
It is the fairness of the “criminal prosecution” which counsel‘s presence helps to ensure.13 For this reason the
Defendant‘s
The Supreme Court has not addressed the question whether representation for one crime prohibits interrogation about factually unrelated crimes. A number of states have examined the admission of statements derived from police interrogation without an attorney present when the defendant has an attorney for a factually unrelated charge. With the exception of New York,14 these states hold that the police run
In State v. Derrico, 181 Conn 151, 434 A2d 356 (1980) the court ruled:
“The fact that the defendant had been represented by counsel in a different proceeding did not, however, give notice to the police that an appearance had been entered by the defendant‘s counsel in connection with the charges then under investigation. *** The defendant‘s arraignment in the prior matter was genuinely unrelated and neither a sham nor a pretext for investigation of the [present crime]. The police were entitled to proceed with the interrogation upon receiving the defendant‘s valid waiver of his Miranda rights.” 181 Conn at 168.
In California, once criminal charges have been filed and defendant obtains an attorney, he acquires an “absolute, unwaivable right to counsel‘s presence at any subsequent police interrogation.” People v. Boyd, 86 Cal App 3d 54, 60, 150 Cal Rptr 34, 37 (1978). The rule applies to crimes for which defendant is formally charged and crimes which are related to those charged. One California court has held that it does not apply when formal charges to the crime under interrogation have not yet been filed or when interrogation concerns a crime unrelated to the crime on which defendant already has an attorney. People v. Mack, 89 Cal App 3d 974, 152 Cal Rptr 883 (1979). Boyd makes clear that it is the factual similarity between the crimes and not the charges filed which determines whether the crimes are “related.” In Boyd defendant was arraigned on a burglary charge arising out of suspicion that he stole property and then set a building on fire to hide the theft. Admissions derived from an interrogation about the fire in the absence of an attorney were suppressed because the two crimes of burglary and arson involved the same premises, the same victims and were closely connected in time. 86 Cal App 3d at 61, 150 Cal Rptr at 38. Boyd notes that in Brewer v. Williams, 430 US 387, 97 S Ct 1232, 51 LEd 2d 424 (1977) a
“There is a need for such a differentiation. Where the defendant has sought or obtained counsel on a pending charge, it is apparent that he has initially exercised his right to counsel and waiver at that stage is not an issue. If Massiah and Miranda and their progeny are to have any meaning, the State should not be permitted to make subsequent overtures to the defendant to see if he wishes to abandon his already exercised right to counsel. To permit the State to subsequently test the defendant‘s resolve to have counsel by importuning him to waive counsel is to enable the State to wear away at the defendant in the hope of having him recant his earlier decision to have counsel.
“This restriction does not mean that the defendant may not voluntarily decide to recant his right to counsel but any reconsideration must occur independently of overtures from the State. * * *
“On the other hand, where counsel has been obtained on an unrelated charge, this fact has no particular bearing on whether the defendant is willing to waive counsel on the present charge. It cannot be said from either a constitutional or ethical standpoint that because a defendant has counsel on one criminal charge, the State is thereby foreclosed from making contact with the defendant on another matter. * * * The essential point is whether the defendant desires to have counsel on the present charge or whether he will voluntarily waive that right.
“This decision is one that necessarily relates to the defendant‘s state of mind in regard to the present charge and we cannot conclude that an earlier decision to have counsel on an unrelated charge can be automatically assumed on the subsequent charge. Moreover, the State is still required before interrogation to give the defendant his Miranda warnings so
that he may at this point make the decision to have counsel on the separate charge.” (Citations omitted.) 270 SE2d 669.
Accord, Miller v. State, 403 SO2d 1017 (Fla App 1981); Rutledge v. State, 263 Ark 781, 567 SW2d 283 (1978); State v. Richmond, 114 Ariz 186, 560 P2d 41 (1976), cert den 433 US 915, 97 S Ct 2988, 53 LEd 2d 1101 (1977); State v. Stumes, 90 SD 382, 241 NW2d 587 (1976); State v. Patterson, 288 NC 553, 220 SE2d 600 (1975).
We agree with the trial court that defendant‘s waiver of his self incrimination rights was knowing, intelligent and voluntary. Because defendant was represented by an attorney for the crimes against Steven Mansell, interrogation on this subject was improper and no waiver of this right can be given effect. However, with regard to the unrelated Davidson case, defendant‘s waiver is valid. This is not a situation where a waiver was obtained by exploitation of illegal conduct.
In summary, we hold that defendant did not invoke his
The decision of the Court of Appeals is affirmed. The minimum sentence for the felony murder charge is vacated. State v. Macy, 295 Or 738, 671 P2d 92 (1983) and State v. Shumway, 291 Or 153, 630 P2d 796 (1981).
LINDE, J., concurring.
I concur in almost all of the Court‘s discussion of the two separate constitutional premises involved. It makes clear that respect for a suspect‘s right to counsel is independent of the elements of custody and compulsion or inducement that trigger protection of the right against self-incrimination, and that it forecloses questioning or otherwise obtaining evidence from a suspect by consent in a matter in which he is represented by counsel unless he consults counsel before consenting. But I have misgivings about a test that makes the admissibility of evidence depend on whether the inquiries to
What makes the distinction appear plausible in this case is that a defendant jailed in one city on the charge on which he had legal counsel confessed to an apparently unrelated crime in another city, in response to questions by officers from that city. But the distinction is likely to prove difficult to administer when any of these factors is missing, when officers from the same or a closely associated jurisdiction question a suspect about activities related in time or place, by the identity of the victim, or by the repetition of similar unlawful acts. This is illustrated by the cases under such a test reviewed by the New York Court of Appeals when it abandoned the test in People v. Rogers, 48 NY2d 167, 422 NYS2d 18, 397 NE2d 709 (1979).
Future cases will require scrutiny of the notion that a defendant has an attorney on one charge yet has none on another potential charge about which he is questioned. Again, that notion may appear plausible when one is accustomed to assuming that defendants are represented by counsel appointed by a court for a specific purpose. It is far less plausible when a retained attorney appears to represent an accused and look after his interests in the investigatory stages of the criminal process. Yet we must guard against letting such a difference enter into a rule protecting the right to counsel. The appointment of counsel is designed to protect exactly the same rights for which the constitution guarantees the right to retain counsel. In a rule governing the questioning of suspects, therefore, the test whether the suspect is represented by an attorney must be the same whether the attorney is appointed or retained; it is whether the officers are on notice that the suspect‘s attorney reasonably would regard protection of the suspect‘s rights in the matter under investigation to fall within his professional responsibility. The obvious precaution is to ask before proceeding.
Lent, J., joins in this concurring opinion.