(dissenting).
While I agree with the majority that its decision should be only prospective, I must respectfully dissent from the holding of the opinion. We have before us a ease in which there is little doubt that the defendant committed the homicide with which he was charged, a case in which the conviction was substantially based on his own admissions which were not extracted from him by physical duress and arguably not by psychological stress, but a case in which there is a real possibility that, lacking other independent proof, the defendant may be freed because of noncompliance with an overly technical application of the Miranda rule.
My principal point of disagreement with the majority opinion stems from the holding which finds the Indiana State Police warning of October 15, 1967, to be constitutionally deficient. There seems to be no claim that the warning given would not have passed muster if it had not included the words, “[w]e have no way of furnishing you with an attorney, but one will be appointed for you, if you wish, if and when you go to court.”
The majority opinion does not purport to overrule United States v. Johnson, 426 F.2d 1112 (7th Cir. 1970), cert. denied, 400 U.S. 842, 91 S.Ct. 86, 27 L.Ed.2d 78, yet the issue seems to have been squarely before this court and Judge Kiley stated the following at 1115:
“Harry Johnson was told that a lawyer would be appointed ‘if and when you go to court’ and claims this did not fully advise him of his right to have an attorney present during the custodial interrogation. However, he signed a statement which, read as a whole, complied with the Miranda requirements. Having signed the written waiver form, without evidence to the contrary, he cannot now contend that he did not understand his rights. See Bell v. United States, 382 F.2d 985, 987 (9th Cir. 1967), cert. denied, 390 U.S. 965, 88 S.Ct. 1070, 19 L.Ed.2d 1165 (1968).”
While the Johnson case does not set out the entire warning given there, the fair inference seems to be that the remainder of the statement complies with the Miranda requirements. Likewise here, as pointed out above, there seems to be no faulting of the balance of the warning statement.
As pointed out in the majority opinion, the inclusion of the “not until court” language in an otherwise proper Miranda warning has been held not to be a fatal constitutional defect by the state courts of both Indiana and Illinois. Jones v. State, 252 N.E.2d 572 (Ind.1969); Rouse v. State, 266 N.E.2d 209 (Ind.1971) 1; and People v. Williams, *1254264 N.E.2d 901 (Ill.App.1970). While we are not bound by the state court decision, I do not think we should ignore the realistic analysis of the very warning before us given by Judge Burman of the Illinois Appellate Court in Williams, supra at 904:
“The warnings which were read to the defendant informed him (1) that he had a right to remain silent, (2) that anything he said could be used against him in court, (3) that he had a right to talk to a lawyer before and during questioning, (4) that he had a right to a lawyer’s advice and presence even if he could not afford to hire one, (5) that a lawyer would be appointed for him, if and when he went to court, and (6) that he had a right to stop answering questions at any time until he talked to a lawyer. The defendant by signing the waiver acknowledged that he had read the warning and that he understood his rights. The above warnings when read in combination, clearly and understandably informed the defendant that he was entitled to appointed counsel prior to questioning.”
It seems to me considering the Miranda statement here given as a whole that Williams was definitely informed that he did not have to talk without an attorney. He was informed that there were no facilities for getting him an attorney at the time in the jail but it seems nevertheless to me that it was made clear to him that he did not have to talk unless he voluntarily desired to do so. Certainly, the state police had and have no facilities for appointing attorneys and the impact of the majority decision virtually is that the police have to bring in an attorney before they can ever interrogate, irrespective of the warning. Whether this language is in the standard Miranda warnings which have been approved or not, it is implicitly there because there is no way of which I am aware by which the police in the initial interrogation of a suspect are able to provide him with counsel at that point. They do have to advise him, however, of his right not to speak without counsel and it seems to me that was adequately done here.
I cannot agree with the correctness of the statement of Lathers v. United States, 396 F.2d 524, 535 (5th Cir. 1968), that the “Miranda warning must effectively convey to the accused that he is entitled to a government-furnished counsel here and now.” If “here and now” means the police station, this is just not a realistic statement because police stations do not furnish government counsel. It seems to me that the most that can be said is that, as the Lathers court itself said, “[t]he words must asseverate with conviction that any accused can have a lawyer before speaking.” With that I cannot disagree. However, if the accused, after being warned, states that he wants a lawyer, either now or later, then while no necessary obligation exists to provide him one “here and now,” there is a Miranda impediment against further interrogation. If it is contended that the accused, notwithstanding a request for counsel at a time of unavailability of the same, did nevertheless proceed to talk or answer questions on a voluntary basis, there would be indeed a heavy burden upon the state to demonstrate voluntariness. I would not hold, however, that it was an impossible burden.
With regard to the October 15 warning, I find the words of then Chief Judge Murrah particularly applicable in Coyote v. United States, 380 F.2d 305, 308 (10th Cir. 1967), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484:
“Surely Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is wheth*1255er the words in the context used, considering the age, background and intelligence of the individual being interrogated, impart a clear, understandable warning of all of his rights.
“It is, of course, always open to an accused to subjectively deny that he understood the precautionary warning and advice with respect to the assistance of counsel. When the issue is raised in an admissibility hearing, i. e. see McHenry v. United States, 10 Cir., 308 F.2d 700, it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to convey the required warning.”
As the majority opinion points out, it is not clear from the record exactly what warnings were given after Williams reached Illinois. This is not deemed significant in the majority opinion because the Illinois transactions were found to be tainted by the fountainhead of the supposedly deficient Indiana Miranda warning.
Since I would not find the Indiana warning deficient constitutionally, I would not reverse with the option to the state to retry the case but would, because of the real questions this case presents as to voluntariness, reverse for the district court to hold a full hearing to determine whether the confessions were voluntary. This, of course, would include the objective determination of whether in the circumstances of the case the words used both in Indiana and Illinois were sufficient to convey the required warning. Per se, in my opinion, they were.
While I would decide the ease on this point as indicated and while the questioned portion of the Indiana State Police warning does factually and truthfully state the situation as to counsel availability at the police station, nevertheless it does seem that law enforcement officials might be well advised to eliminate this potential source of challenge to the validity of interrogation-produced statements.
. Two of the five judges of the Indiana Supreme Court dissented in Jones; however, upon the later consideration of the companion case of Rouse, one of the dissenting judges no longer being on the court, his successor concurred with the majority, leaving only one. dissent.