State v. Dobson

Berdon, J.,

dissenting. I disagree, and would hold that the oral statements made by the defendant to Patrol Officer Paul Carlson implicating him in the murder should have been suppressed because they were taken in violation of his right to have counsel present during custodial interrogation under the fifth and fourteenth amendments to the constitution of the United States. It is now beyond debate that if the individual in custody “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 cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Although the majority reflects doubt, it is clear that the defendant had invoked his all-inclusive right to counsel after initially signing a waiver form by asking Lieutenant Michael Kozlowski if he could telephone his attorney, John Merchant. The police had no doubt that the defendant wanted his attorney; when Kozlowski brought the defendant to Detective Robert Kwet, he advised Kwet that the defendant had tried to contact his attorney and would like to do so again. The state had no doubt, and acknowledges as much in its brief by stating that “Kozlowski then turned the defendant over to Detective Robert Kwet and told Kwet that the *143defendant had been advised of his rights and that he wanted to talk to his attorney but the line was busy.” I am sure the defendant had not wished merely to pass the time of day with his attorney on the telephone.

Having unequivocally invoked his right to counsel, questioning may not be resumed without an attorney present, unless the defendant validly waives his presence by initiating “further communication, exchanges or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). This rule has been described as a “ ‘rigid’ prophylactic rule.” Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). Edwards v. Arizona, supra, requires that after it is determined that the defendant invoked his right to have counsel present, the state must satisfy a two-prong test to establish a waiver. “[C]ourts may admit [the defendant’s] responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, supra.

After the defendant was turned over to Kwet and served with the arrest warrant for murder, he initiated a conversation with Kwet and blurted out an alibi. I agree with the majority that there was a waiver with respect to his statements to Kwet concerning his alibi. That waiver satisfied both prongs of Edwards v. Arizona because the defendant initiated the discussion and there was evidence that he knowingly and intelligently waived his right to counsel.

Following the defendant’s alibi statement, Kwet asked him if he would be willing to make a statement. The defendant said he was willing to talk about it, but he would not give a written statement. Thereafter, it is reasonable to assume that the defendant again requested that he be able to contact his attorney *144because, as the majority admits, Kwet allowed him to telephone his attorney. The defendant, however, was unable to speak to his attorney because he was unavailable.

Judges must “give a broad, rather than a narrow, interpretation to a defendant’s request for counsel . . . .” Michigan v. Jackson, 475 U.S. 625, 633, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); see, e.g., United States v. Gotay, 844 F.2d 971, 975-76 (2d Cir. 1988) (the defendant’s statement that she could not afford an attorney but was concerned about obtaining one was an ambiguous request for counsel that precluded further questioning except those designed to clarify the ambiguity; “[sjuspects should not be forced, on the pain of losing a constitutional right, to select their words with lawyer-like precision”); United States v. Fouche, 776 F.2d 1398, 1404-1405 (9th Cir. 1985), cert. denied, 486 U.S. 1017, 108 S. Ct. 1756, 100 L. Ed. 2d 218 (1988) (the defendant’s statement that he might want to speak to an attorney constituted an ambiguous request for counsel; subsequent questioning must be limited to clarifying that request); United States v. Webb, 633 F.2d 1140, 1142 (5th Cir. 1981) (the defendant’s statement that he wanted to call his attorney was an ambiguous request for counsel that invoked his right to counsel). It is obvious that the defendant, for the second time, invoked his right to an attorney for all purposes. The right to the attorney may be triggered “in any manner and at any stage of the process. . . . The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” Miranda v. Arizona, supra, 444-45.

The defendant was then placed in a booking area cell. At about 7 p.m., Carlson was directed to obtain a state*145ment from the defendant. The defendant was brought to the detective bureau for this purpose. By sending Carlson to get a statement from the defendant after his second request for counsel, the police committed a clear violation of his right to be free of police-initiated interrogation without counsel present. Edwards v. Arizona, supra. There can be no doubt that the defendant was forced into the interview with Carlson by being taken to the detective bureau. Edwards v. Arizona was designed “to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990). In the recent case of Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 489, 112 L. Ed. 2d 489 (1990), the United States Supreme Court pointed out that the rule in Edwards v. Arizona gave force to the Miranda admonitions by making clear that once the accused invoked his right to counsel, all interrogation must cease and cannot be reinitiated by the police until counsel is present or there is a valid waiver of that right.

Even if we viewed the defendant’s second request to Kwet that he be allowed to telephone his attorney as an ambiguous request for an attorney, or even if he made a mere reference to counsel, the defendant’s incriminating statements to Carlson are still not admissible. Under such circumstances, “courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous.” Smith v. Illinois, supra, 96 n.3. Others have held “that when an accused makes an equivocal statement that ‘arguably’ can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to ‘clarify’ the earlier statement and the accused’s desires respecting counsel. See, e.g., Thompsons. Wainwright, 601 F.2d 768, 771-772 [5th Cir. 1979]; State v. Moulds, 105 Idaho 880, 888, *146673 P.2d 1074, 1082 (App. 1983).” Smith v. Illinois, supra, 96 n.3.1 In the present case, the state satisfied neither approach. The police did not cease all questioning nor did they attempt to clarify the defendant’s prior request for counsel; rather, Carlson was specifically sent to get a statement from the defendant. It is constitutionally insufficient to merely “re-Mirandize” the defendant and ask him whether he wants to make a statement. The United States Supreme Court has construed, just as we should, that “the defendant’s request for counsel [is] an extremely important fact in considering the validity of a subsequent waiver in response to police-initiated interrogation.” Michigan v. Jackson, supra, 633 n.6.

In this case, Connecticut v. Barrett, 479 U.S. 523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), cannot transform the defendant’s words into a waiver to satisfy the Edwards’ rule. First, we do not reach a Barrett type statement—that is, I will answer your questions but will not sign a statement. The defendant’s invocation of his right to counsel to Kwet canceled any Barrett waiver given to Kwet.

Second, the Barrett analysis is not applicable to this case. Although the defendant indicated to Kwet that *147he was willing to give a Barrett type statement, that response must be viewed in the context of his general all-inclusive request before Kozlowski to have counsel present and his subsequent request for counsel to Kwet. At best, the Barrett response after the defendant asked for counsel or attempted to contact his attorney made it an ambiguous response implicating his right to counsel, which required the police to limit themselves to questions that clarified the request, if not cease all interrogation. In determining whether there was a waiver, the equivocal words and actions preceding the purported request for counsel, as well as those that are part of the purported request, must be taken into account. See Smith v. Illinois, supra, 96. In Barrett, there was no such attempt to contact counsel, but merely a response by the defendant that he would not give a written statement without counsel.2 The majority of the United States Supreme Court in Barrett emphasized this distinction when it pointed out that there was no suggestion in the facts that the request for counsel was “all-inclusive.” Connecticut v. Barrett, supra, 479 U.S. 527 n.1.

Third, even if the Barrett response made to Carlson could be considered, reliance upon it is flawed in the same manner as is the Barrett response made to Kwet; it must be reviewed in the context of the prior request or references to counsel made by the defendant. See Smith v. Illinois, supra.

In our overburdened system of justice, we sometimes lose sight of the reasons for the rules that implement *148constitutional guarantees, such as the right to counsel and the privilege against self-incrimination. We probably all should periodically reread Miranda v. Arizona. Chief Justice Earl Warren quoted in Miranda the case of Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819 (1896), as follows: “ ‘The maxim nemo tenetur seipsum acensare [no one shall be compelled to accuse himself] had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an *149accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.’ Brown v. Walker, 161 U.S. 591, 596-97 (1896).” Miranda v. Arizona, supra, 442-43.

Modern day practices of interrogation, which place heavy psychological pressure upon the person while he or she is in isolation and unfamiliar surroundings, “exacts a heavy toll on individual liberty and trades on the weakness of individuals.” Id., 455. Accordingly, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., 475. The state has not met this burden relative to the statements made by the defendant to Carlson.

I would hold that the statement obtained by Carlson violated the defendant’s fifth and fourteenth amendment rights and that the statement should have been suppressed. I would set the judgment aside and order a new trial. Accordingly, I respectfully dissent.

A third approach, which even if accepted, would not lead to a different result. “Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. See, e.g., People v. Krueger, 82 Ill. 2d 305, 311, 412 N.E.2d 537, 540 (1980) (‘[a]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity,’ but not ‘every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel’), cert. denied, 451 U.S. 1019, [101 S. Ct. 3009, 69 L. Ed. 2d 390] (1981).” Smith v. Illinois, 469 U.S. 91, 96 n.3, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). The Supreme Court of the United States has not yet resolved the conflict between these rules; but it would seem that to give full force to the right to counsel would require all doubts be resolved in favor of the accused. See Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 491, 112 L. Ed. 2d 489 (1990).

I am aware that in State v. Barrett, 197 Conn. 50, 56, 495 A.2d 1044 (1985), there is an indication the defendant attempted to contact counsel. Nevertheless, when charting the limits of the Barrett rule adopted by the United States Supreme Court in Connecticut v. Barrett, 479 U.S. 523,107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), we must look at the predicate facts considered by that court and not extraneous matters considered by other courts.