State v. Monroe

BISTLINE, Justice,

dissenting as to the admissibility of the confession.

In the context of the present case it is clear that, despite repeated requests for an attorney, the police neither made any effort to obtain one for the defendant and did not afford him any opportunity to do so; nor did they cease in their efforts to persuade him to submit to questioning in the absence of an attorney. The defendant’s mother *260was picked up by sheriff’s deputies at her home at 5:30 a. m. and, without explanation, was ordered to accompany the officers to the stationhouse. There she was informed of her husband’s murder and eventually of her son’s arrest. Officer Prescott asked her to talk with the defendant because he wouldn’t talk to them directly, and they hoped she might let them know what he said. Mrs. Monroe asked whether her son shouldn’t have an attorney before he was questioned, but the response was that “it would make it a lot simpler if we could get him to talk to us.” The defendant told his mother he would not tell her anything, because “[i]f I tell you then they can talk to you and then they could question me about it. . . . If I don’t tell you anything they can’t make you tell them.”

The trial court found that the decisive factor in the defendant’s decision to make a statement was the presence of his roommate, Jim Muller. “I think the defendant on his own decided that he did not want him [Muller] involved and that he made the decision to give the statement to law enforcement officers. I think that the law enforcement officers might have taken advantage of him as far as catching him in a weak moment; the fact he saw a friend and didn’t want to get the friend involved.”

The trial court found that the defendant’s confession was given voluntarily; “voluntariness,” however, is not the standard. The trial court’s finding of “voluntariness” was a necessary but not a sufficient condition for admitting the confession:

“While the traditional determination of voluntariness had largely turned on a case-by-case consideration, Miranda required exclusion of any statements stemming from custodial interrogation unless the prosecution demonstrated compliance with its specific, prophylactic safeguards. Thus, if law enforcement officers fail to give the specified warnings before interrogation or fail to follow its guidelines during interrogation, the statement derived therefrom may be suppressed, even though it is otherwise ‘wholly voluntary.’ Michigan v. Mosley, 423 U.S. 96, 99-100, 96 S.Ct. 321, 324, 46 L.Ed.2d 313 (1975); Michigan v. Tucker, 417 U.S. 433, 443, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974).” U. S. v. Charlton, 565 F.2d 86, 89 (6th Cir. 1977).

The level of scrutiny required where a defendant allegedly waived rights initially asserted must be higher than the scrutiny required where a suspect never asserts those rights. As Justice White stated in his concurring opinion in Mosley, “[t]he accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.” 423 U.S. at 110 n. 2, 96 S.Ct. at 329 n. 2. While most courts have held that it is possible for the right to counsel, even though initially asserted, to be waived “voluntarily, knowingly, and intelligently,” (Miranda, 384 U.S. at 444, 86 S.Ct. at 1612), it must be borne in mind that “courts indulge in every reasonable presumption against waiver.” Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).

In light of this heavy burden, it is impossible for me to conclude that Monroe’s waiver of his right to counsel was made “voluntarily, knowingly, and intelligently.” In addition to the admission by officers that they never attempted to honor Monroe’s request for counsel, it also appears that by the time the taking of his statement commenced, a magistrate should have been available in the court house. There is also the use of the defendant’s mother to try to persuade him to make a statement, without having honored his request for counsel, and the trial court’s finding, amply supported by the record, that the defendant’s confession was triggered by the defendant’s perception that his roommate was being implicated in the crime. A very strong factor militating against the waiver finding is the singular fact, unremarked upon by the trial court, that Monroe was taken out of lock-up in order that he could be exposed to the rather prolonged conversation which he had with his mother, with some regard for the additional fact that by the time of its con*261elusion, Jim Muller, too, had been brought into the custodial area.

A comparable case was presented to the New York Court of Appeals in People v. Grant, 45 N.Y.2d 358, 408 N.Y.S.2d 429, 380 N.E.2d 257 (1978). There the defendant,

“after being arrested and advised of his rights, requested the assistance of counsel. Ten minutes later, without having consulted an attorney, he was readvised of his rights, waived them and made a statement because, in the interim, the arresting officer had given him a fuller ‘explanation’ or ‘understanding’ by advising him of the strength of the case against him.” 408 N.Y.S.2d at 430, 380 N.E.2d at 258.

The court reversed Grant’s conviction, noting that even though the questioning of Grant was terminated at his request for counsel and he was taken from the room, “[n]othing . . . was done to assist the defendant in obtaining counsel.” After reviewing the case history from Miranda to Mosley, the New York Court of Appeals found that a defendant’s request for counsel must be considered.as something different than standing on the right to remain silent, which after a discreet interval, may be met by renewed police attempts to secure a statement. If Mosley requires at a minimum that the defendant’s right to remain silent be “scrupulously honored,” the request for counsel deserves more respect than the continuation of the police efforts to change the suspect’s mind:

“In prior decisions we have held that the police cannot be said to have respected the defendant’s request for counsel when they simply readvise the defendant of his rights after he has been transported to the station house (People v. Buxton [44 N.Y.2d 33, 403 N.Y.S.2d 487, 374 N.E.2d 384 (1978)]), or when they confront him with the tearful mother of a codefendant, although they had previously afforded him an opportunity to attempt to reach an attorney and subsequently readvised him of his rights (People v. Jackson [41 N.Y.2d 146, 391 N.Y.S.2d 82, 359 N.E.2d 677 (1976)]). Here the arresting officer’s conduct was completely inconsistent with the defendant’s request because he took no steps to afford the defendant an opportunity to obtain an attorney’s assistance, and, in fact, immediately made comments which undermined the defendant’s decision to consult an attorney. In addition, unlike the circumstances in Mosley, here there was no significant break in the interrogation, and no change of parties, place or subject matter of the interrogation (see Michigan v. Mosley, supra, 423 U.S. p. 104, 96 S.Ct. 321 [at 326]). In short on this record it cannot be said that the authorities ‘scrupulously honored’ the defendant’s request for counsel before resuming the interrogation and the confession should have been suppressed.” 408 N.Y.S.2d at 435, 380 N.E.2d at 263.

The case before us is readily distinguishable from those cases in which a waiver has been found. In Pheaster, for example, heavily relied upon by the State, the court made the following comment:

“It is critical to focus on the fact that Pheaster agreed to cooperate with the agents after he had been in the car for only fifteen to twenty minutes — a point not challenged in his brief. Thus, although he was in the car for a longer period, his cooperation was not the result of lengthy incommunicado detention. This is not a case in which there was an intentional delay in providing an attorney in the hope that the suspect would yield to pressure and recant his demand for an attorney.” (Emphasis added.) 544 F.2d at 368.

Similarly, in United States v. Rodriguez-Gastelum, supra, the court stated:

“We understand that the interrogating officer may not badger the suspect or bring pressure intended to induce a change of mind. Nor can he coerce the suspect into reconsidering an assertion of his right to counsel.” 569 F.2d at 488.

It is noteworthy that Monroe’s “decision” to retreat from insisting on his right to counsel and his right to remain silent was made at a time when psychologically most *262vulnerable to police suggestion. The police had taken him into custody at 6:30 a. m., and from the record presented it appears that he had been without sleep that night. He was taken into custody and according to his mother,

“his eyes looked real funny, sort of glassy like he wasn’t really quite aware of what was going on and when I asked him things sometimes he acted like he didn’t quite hear me and I would talk to him say two or three times to him and then he would act like he knew I was talking to him, and he would make some comment but he didn’t look like he was really with it.” 1

The police tactics used to dissuade the appellant from standing on his insistence that he not talk without having seen counsel, either alone, or combined with an apparent debilitated mental state of mind, raise insurmountable obstacles to a finding that the appellant’s asserted constitutional rights were validly waived.

I would therefore reverse the judgment of conviction and remand for a new trial.

. There was also testimony from a defense psychiatrist that the defendant was probably under the influence of LSD and alcohol at the time the murder was committed, and that he was also under the influence of alcohol at the time the confession was obtained. This may account for the defendant’s appearance.