THE STATE OF WASHINGTON, Respondent, v. DEVIN R. STEWART, Appellant.
No. 9696-0-II
Division Two
January 3, 1989
Reconsideration denied February 6, 1989.
Review granted at 112 Wn.2d 1017 (1989). Alexander, C.J., dissents in part by separate opinion.
C. Danny Clem, Prosecuting Attorney, and Christian C. Casad, Deputy, for respondent.
PETRICH, J.—Devin R. Stewart appeals a judgment on a jury verdict finding him guilty of six counts of burglary in the second degree. The issues before us are whether
Devin Stewart was charged by information dated November 19, 1985, with six counts of second degree burglary. Counts 1-3 related to residential burglaries in Bremerton, Washington. Counts 4-6 described burglaries of three mobile homes located near Stavis Bay in Kitsap County. The burglaries allegedly occurred between January 22 and April 19, 1985.
On April 30, 1985, Stewart was arrested by the Bremerton Police Department on an unrelated robbery charge. After being advised of his Miranda rights, Stewart was interrogated by Detective Del English of the Bremerton Police Department. Stewart waived his rights and discussed his participation in the Stavis Bay burglaries (counts 4-6) with the detective. Stewart was transferred to the Kitsap County Jail that evening. The following day, May 1, Stewart was arraigned on the robbery charge. At the arraignment, an attorney was appointed for him at his
On appeal, Stewart argues that his convictions should be reversed because they were based on statements obtained in violation of his right to counsel under the fifth and sixth amendments to the
I
SIXTH AMENDMENT
The Sixth Amendment right to counsel arises from the fact that a suspect has been formally charged with a crime and is thus “facing a state apparatus that has been geared up to prosecute him.” Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 716, 108 S. Ct. 2093 (1988). As such, the Sixth Amendment right attaches only when formal judicial criminal proceedings have been initiated against a defendant. State v. Dictado, 102 Wn.2d 277, 294, 687 P.2d 172 (1984). Stewart‘s Sixth Amendment right to counsel was not violated in this case. At the time of his arraignment on the robbery case, formal criminal proceedings had not been initiated in the burglary charges. Accordingly, Stewart‘s Sixth Amendment right had not yet attached when he was interrogated by Deputies Wright and Fuller.
FIFTH AMENDMENT RIGHT TO COUNSEL
The Fifth Amendment right against self-incrimination requires that defendants be accorded the assistance of an attorney during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 467, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). This right is upheld through the “prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges.” Arizona v. Roberson, 100 L. Ed. 2d at 716. As established by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), the Fifth Amendment requires that once an accused in a custodial situation has expressed a desire for assistance of counsel, he is not subject to further interrogation unless he consults with counsel or the accused initiates further communication with police.
In the usual criminal prosecution, the defendant invokes his Fifth Amendment right by requesting counsel at the time he is taken into custody or at a later interrogation occurring while the defendant remains in custody. In the instant case, we must determine two issues: (1) whether a request for counsel at an arraignment on a charge invokes a Fifth Amendment right to counsel, and (2) whether the protection extends to custodial interrogations pertaining to unrelated cases.
A
Invocation of Fifth Amendment Right
The Seventh Circuit Court of Appeals addressed an identical issue in United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987). In Espinoza, the defendant was arrested on a weapons charge. He was represented by counsel at his arraignment on that charge. Four days later, while still in custody, he was interviewed about
We are convinced by the logic of Espinoza and Jackson. Accordingly, we find that Stewart invoked both a Fifth Amendment and Sixth Amendment right to counsel at his arraignment on the robbery charge.
B
Scope of the Invocation of Fifth Amendment Right
Having previously determined that the Sixth Amendment right invoked does not extend to the burglary charges,
As a matter of law, the presumption raised by a suspect‘s request for counsel—that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance—does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.
Roberson, 100 L. Ed. 2d at 715. The Edwards rule serves to provide “clear and unequivocal” guidelines to the law enforcement profession. It plainly requires that “after a person in custody has expressed his desire to deal with the police only through counsel, he ‘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.‘” Roberson, 100 L. Ed. 2d at 714, quoting Edwards v. Arizona, 451 U.S. at 484-85.
The court in Espinoza similarly held that Espinoza‘s Fifth Amendment right against self-incrimination was violated when he was interrogated without the presence or assistance of counsel on the unrelated murder charge after remaining in continuous custody. Espinoza, 813 F.2d at 125. We are bound by the holding of Arizona v. Roberson, supra, which defined the scope of Stewart‘s rights under the Fifth Amendment. United States Supreme Court decisions establish the minimum rights to be accorded a defendant as required by the
We hold that Stewart‘s Fifth Amendment right against compelled self-incrimination was violated as to counts 1-3. According to the rule of Edwards v. Arizona, supra, as extended in Arizona v. Roberson, supra, the Kitsap County Sheriff‘s deputies acted improperly when they interrogated Stewart after he had requested counsel, thereby raising the presumption that he was unable to deal with the pressures of custodial interrogation without legal assistance. The fact that the deputies may not have been aware of Stewart‘s request for counsel is of no significance as the police have the burden of determining whether a suspect has requested counsel. Roberson, 100 L. Ed. 2d at 717.
We reverse Stewart‘s convictions on counts 1, 2, and 3 and affirm on counts 4, 5, and 6.
WORSWICK, J., concurs.
ALEXANDER, C.J. (dissenting)
As noted by the majority, the present case requires the resolution of two key issues: (1) whether Stewart‘s request for appointment of counsel at his arraignment on the robbery charge invoked his Fifth Amendment right to counsel; and if so (2) whether the Fifth Amendment protections extended to the unrelated burglary charges so as to preclude any further police-initiated questioning. I believe the majority has erred in its resolution of both of these issues, either one of which is fatal to Stewart‘s claim.
I
Invocation of Fifth Amendment Right
In reaching their decision that Stewart‘s invocation of his right to counsel at his arraignment on the robbery charge constituted an invocation of his Fifth Amendment rights, the majority relies heavily upon the reasoning of the Seventh Circuit Court of Appeals in United States ex rel.Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987). In Espinoza, the court, citing Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), held that individuals who invoke their right to counsel at an arraignment are deemed to have invoked both their Fifth and Sixth Amendment rights. Espinoza, 813 F.2d at 123. In my judgment, the Espinoza court‘s reliance on Michigan v. Jackson, supra, is misplaced, and because the United States Supreme Court has not seen fit to adopt the position espoused by the Espinoza court, I would not add Washington to the list of states to erroneously do so.
In Michigan v. Jackson, supra, the United States Supreme Court held only that the Sixth Amendment right to assistance of counsel guarantees that right at post-arraignment interrogations, because such interrogations represent “critical stages” of adversary judicial proceedings to which the Sixth Amendment applies. Jackson, 475 U.S. at 629-30. From this, the Court in Jackson reasoned that a defendant‘s invocation of his Sixth Amendment right to counsel at postarraignment interrogations is as much protected as is the Fifth Amendment right to counsel at a custodial interrogation. Jackson, 475 U.S. at 632.
The Court in Jackson merely extended the rule of Edwards v. Arizona, supra, to Sixth Amendment invocations of right to counsel; it did not hold, as the court in Espinoza suggests, that the invocation of the Sixth Amendment right to counsel at an arraignment also invokes a defendant‘s Fifth Amendment rights. On the contrary, the Michigan Supreme Court, the court from which Jackson was appealed, expressly held that the defendant‘s request for counsel at his arraignment implicated only his Sixth Amendment right to counsel. People v. Bladel, 421 Mich. 39, 52, 365 N.W.2d 56, 62 (1984). The Michigan court‘s reasoning was based on Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980), in which that Court expressly stated that the Fifth Amendment right to counsel attaches only when an accused is in custody and subjected to interrogation. Innis, 446 U.S. at 298. See
Although I recognize that the United States Supreme Court in Jackson did not pass judgment on the validity of the Michigan court‘s Fifth Amendment analysis (see Jackson, 475 U.S. at 630 n.7), I believe the Michigan court‘s position to be the sounder and better supported position. While I adhere to the presumption stated in Espinoza that “a court must presume that an individual has invoked the full extent of his or her constitutional right to counsel” (Espinoza, 813 F.2d at 123), there is nevertheless no Fifth Amendment right to counsel at an arraignment and Stewart cannot be deemed to have invoked such.
Because the Fifth Amendment right to counsel had not yet attached at the time of the arraignment, Stewart‘s request for counsel at the arraignment must be viewed as only invoking a Sixth Amendment right to counsel. The significance of this distinction between the invocation of the Sixth Amendment as opposed to the Fifth Amendment, is that the “scope” of the rights invoked differs between the Fifth and Sixth Amendments. See Espinoza, 813 F.2d at 125. The Sixth Amendment right to counsel is limited to the specific crimes for which the State has begun prosecution; whereas Fifth Amendment rights, once invoked, extend to any subsequent custodial questioning, regardless of whether such questioning pertains to matters wholly unrelated to the crime with regard to which the right was invoked. Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988); see also State v. Dictado, 102 Wn.2d 277, 294, 687 P.2d 172 (1984).4 As noted by the majority, Stewart‘s Sixth Amendment rights had not yet attached with respect to the burglaries that had not been charged at the time of the questioning. Consequently, Stewart‘s request for appointment of counsel at his arraignment, having invoked his Sixth Amendment right to counsel, did not extend to the unrelated offenses for which no Sixth Amendment right had yet attached. Accordingly, Stewart‘s subsequent waiver of his Miranda rights as to these offenses was not rendered invalid under the rule of Edwards v. Arizona, supra, as no right to counsel had been previously invoked by the defendant as to these charges, to thus bring the rule of Edwards v. Arizona, supra, into play.5 In light of the inapplicability of Edwards, Stewart‘s subsequent waiver of his Miranda rights should be deemed valid.
II
SCOPE OF THE INVOCATION OF FIFTH AMENDMENT RIGHTS
The majority also concludes that Stewart‘s implicit invocation of his Fifth Amendment rights at the arraignment extended to bar subsequent police-initiated questioning of Stewart as to unrelated offenses. This result, the majority
The rationale for extending the protection of the Fifth Amendment to unrelated charges, as stated by the United States Supreme Court in Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 715, 108 S. Ct. 2093 (1988), is that an accused‘s request for counsel prior to interrogation raises a presumption that the accused “considers himself unable to deal with the pressures of custodial interrogation without legal assistance“. This presumption does not disappear because the police have approached the suspect, still in custody, still without counsel, about a separate investigation. Roberson, 100 L. Ed. 2d at 715. The significant factor, as stated by the Court in Roberson, is the subjective state of mind of the defendant that he is uncomfortable with the pressures of custodial interrogation as reflected by his request for counsel in the custodial interrogation setting. Roberson, 100 L. Ed. 2d at 715. The Court in Roberson goes on to summarize Edwards v. Arizona, supra, as follows:
This discomfort is precisely the state of mind that Edwards [Edwards v. Arizona] presumes to persist unless the suspect himself initiates further conversation about the investigation;. . .
Roberson, 100 L. Ed. 2d at 715. Accordingly, when counsel is requested in the context of a custodial interrogation, the defendant is presumed to consider himself unable to handle the inherently compelling pressures of custodial interrogation, and thus the notion of “voluntariness” with regard to any subsequent waiver of the right to counsel comes into question. In contrast, a request for counsel at an arraignment does not reflect a similar subjective belief on the part of the defendant. It tells us nothing about the defendant‘s subjective belief as to his ability to deal with the pressures of custodial interrogation. Indeed, the right to counsel is frequently invoked at an arraignment because counsel is urged upon a defendant by the trial court. Accordingly, even if Stewart were deemed to have invoked his Fifth Amendment right to counsel at the arraignment, there
This reasoning is further supported by the holding of the United States Supreme Court in Connecticut v. Barrett, 479 U.S. 523, 93 L. Ed. 2d 920, 107 S. Ct. 828 (1987), wherein the Court stated with respect to the prohibition against further questioning once counsel has been requested that:
It remains clear, however, that this prohibition on further questioning—like other aspects of Miranda—is not itself required by the Fifth Amendment‘s prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose.
Barrett, at 528. The Court in Barrett overruled the Connecticut court‘s suppression of a defendant‘s oral statement made following the defendant‘s request for counsel before making a written statement. Barrett, 93 L. Ed. 2d at 927-28. The Court defined the prophylactic purpose of Miranda, with regard to the prohibition on further interrogation once counsel has been requested as:
[D]esigned to insulate the exercise of Fifth Amendment rights from the government “compulsion, subtle or otherwise,” that “operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”
Barrett, at 528, quoting Miranda, 384 U.S. at 474. To this end, the United States Supreme Court stated that it knew of no constitutional objective that would be served by suppression, in light of the wholly voluntary and noncoercive circumstances surrounding the defendant‘s statements. Barrett, 93 L. Ed. 2d at 928. Similarly, even if Stewart is deemed to have invoked a Fifth Amendment right to counsel, there is no constitutional objective that would be served by suppression in this case. Accordingly, Stewart‘s subsequent waiver of his Miranda rights as to the unrelated crimes should not be deemed invalid merely because it came in response to police-initiated questioning.
Reconsideration denied February 6, 1989.
Review granted at 112 Wn.2d 1017 (1989).