DISSENTING OPINION OF
NAKAMURA, J.“In Massiah v. United States, [377 U.S. 201 (1964),]... [the Supreme] Court held that the Government violated the Sixth Amendment when it deliberately elicited incriminating information from an indicted defendant who was entitled to assistance of counsel.” United States v. Henry, 447 U.S. 264, 275 (1980) (Powell, J., concurring). “The rule of Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated.” Id. at 276.
*168The court concludes no constitutional violation occurred here when the police, with the advice and aid of the prosecutor, secured incriminating information from an indicted defendant over the objection of his court-appointed counsel, resting its conclusion on Edwards v. Arizona, 451 U.S. 477 (1981). But Edwards dealt with Fifth Amendment1 rights, not the Sixth Amendment2 right to counsel, and I find it inapposite. As Detective Lum deliberately elicited inculpatory information from Keith Brezee in the absence of counsel and the Sixth Amendment brooks no such interference with a defendant’s right to the assistance of counsel after formal charges have been brought against him, I respectfully dissent.
I.
On June 22, 1980, Keith Brezee was arrested on suspicion of having committed an offense unrelated to this case. At 8:55 a.m. on June 24, 1980, Detective Lum proceeded to the cell-block at the Honolulu Police Department where the defendant was being held to seek a statement from him regarding the offenses involved here, for which he had been indicted in Match of 1980. Although the defendant had indicated in March that he would not make a statement, Detective Lum *169nevertheless “wanted to get a statement from him, [to] get it over with.” -The officer was further aware counsel had been appointed to assist the defendant, but did not inform the attorney of the decision to approach the defendant again.
After engaging in “mostly small talk” with Keith Brezee, the officer urged the defendant to “give a statement to get it over with.” The defendant expressed a desire to speak to his attorney instead, and the turnkey in the cellblock was instructed to place a call to counsel. The turnkey made several attempts over the next two hours to reach the attorney but did not succeed. At about 10:55 a.m., the turnkey informed Detective Lum that Keith Brezee wanted to speak to him. When the officer returned to the cellblock the defendant, he claims, immediately stated, “I want to make a statement.” However, the defendant states “I asked him [Detective Lum] to make a call to you [the attorney] because we [the turnkey and himself] couldn't get in contact with you.” He claims the detective again inquired whether he would make a statement, to which he responded affirmatively. Thereupon, the defendant was taken to Detective Lum’s office in the Police Department’s Homicide Division. But no attempt to reach defense counsel was made at this time.
According to the police officer, the defendant was “briefed” from 11:00 to 11:15 a.m. on “what was going to transpire as far as the taking of the statement” was concerned. After “debating whether to call” counsel or not, the officer decided to call the attorney’s office at 11:15 a.m. but was informed he would not be available for at least a half hour. The officer therefore continued with the “briefing,” as “Keith Brezee was still inclined to give a statement.” At 11:30 a.m. the officer called the attorney’s office and spoke to him, informing counsel that “Keith Brezee is here” and “wants to make a statement.” The attorney asked to speak to the defendant on the telephone and was permitted to do so. Detective Lum remained in the office and listened to Keith Brezee’s end of the conversation. Counsel then told Detective Lum that the defendant had been advised not to make a statement without a face-to-face conference with counsel. He further informed the officer that he would be at the police station at 2:00 p.m. and no statement should be elicited from the defendant until then. Detective Lum’s response was:
*170[L]ook, I have my job to do. Keith Brezee still wants to make a statement. I have to do my job.
The officer then had the defendant execute two written “waivers.” The first document was a standard form, HPD Form 81, devised and employed by the Honolulu Police Department to apprise defendants of their “Miranda” rights under the Fifth Amendment and to denote waivers of such rights. The second was a special document3 drafted by the officer at the suggestion and with the guidance of a deputy prosecuting attorney after he had been advised of the circumstances under which information was being elicited from the defendant. Detective Lum proceeded to question Keith Brezee thereafter without the presence of counsel.
The defendant’s account of the fateful confrontation in the detective’s office does not parallel that given by the latter. The State would have us believe the thirty-minute “briefing” prior to the officer’s telephone conversation with counsel merely involved a recapitulation of the procedure to be followed in the interrogation to follow; the defendant, then a twenty-year-old high school dropout, testified there was more.4
*171II.
A.
The Supreme Court “first applied the Sixth Amendment to postindictment communications between the accused and agents of the Government in Massiah v. United States, supra” United States v. Henry, 447 U.S. at 270. And its holding was “that the petitioner was denied the basic protections of... [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Massiah v. United States, 377 U.S. at 206. The ruling was premised “squarely on interference with... [the defendant’s] right to counsel.” United States v. Henry, 447 U.S. at 270.
Here, the court relies on Edwards v. Arizona, supra, in concluding there was no violation of Keith Brezee’s constitutional rights despite the use at trial of his own inculpatory statement, purposefully obtained by the State after his indictment and in the absence of his court-appointed counsel. But as noted earlier, the Supreme Court’s decision in Edwards involved the invocation of the right to remain silent and the general right to seek the advice of counsel that are guaranteed by the Fifth Amendment to any person suspected of criminal activity and being interrogated by the police in connection therewith. The specific Sixth Amendment right to the effective assistance of counsel that unquestionably accrues when a person has been formally charged with a crime was not considered there.5 It is the latter that concerns us, and the record bears out *172the claim of infringement with respect to this constitutional guarantee.
B.
Detective Lum approached the cellblock at the Honolulu Police Department on June 24, 1980 with a single-minded purpose to obtain self-incriminating evidence from Keith Brezee for use against him at trial. The approach itself constituted police interference with the relationship between the accused and counsel, one established by court decree after the commencement of prosecution, since it was without counsel’s knowledge and approval.6 Though the defendant rebuffed the police officer’s initial insinuations that he should “get it over with” by stating he wanted to consult his lawyer, the defendant later succumbed and indicated a willingness to make a statement. Rather than notifying counsel of the defendant’s decision, the detective began to “condition” the defendant for questioning.
When counsel was informed of the turn of events a half hour later, he asked to speak to the defendant on the telephone. The conversation that followed could hardly be deemed consultation between defendant and counsel, for the defendant was at the police station in the intimidating presence of the officer who had been pressing him to disregard the advice of counsel and the officer could hear every word defendant *173uttered. Counsel’s further request that no statement be taken until he could confer with the defendant was disdainfully brushed aside.
But “it is the absolute right of parties charged with crime to confer privately with their- attorneys.” Barber v. Municipal Court, 24 Cal. 3d 742, 751, 598 P.2d 818, 823, 157 Cal. Rptr. 658, 663 (1979). And,
[t]he fundamental justification for the sixth amendment right to counsel is the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense. Free two-way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful. The purpose of the attorney-client privilege is inextricably linked to the very integrity and accuracy of the fact finding process itself. Even guilty individuals are entitled to be advised of strategies for their defense.
United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978). Cf. House v. Mayo, 324 U.S. 42, 46 (1945) (There is a denial of fair trial where the defendant is “not afforded a reasonable opportunity to consult” with his attorney). There definitely was an interference with a right guaranteed by the Sixth Amendment here. United States v. Henry, supra; Brewer v. Williams, 430 U.S. 387 (1977); Massiah v. United States, supra.
III.
Implicit in the court’s opinion is an assumption that no constitutional violation occurred because interrogation of the defendant did not commence until he signed the two waivers. But Sixth Amendment protections, as we have seen, apply in situations where the interrogation is indirect and surreptitious, as well as direct, and where there is no interrogation. And the Supreme Court instructs us that “interrogation” as defined by “Miranda” and applied to Fifth Amendment rights is not necessarily pertinent in a discussion of Sixth Amendment *174rights.7 Thus, waiver of counsel in the Fifth Amendment sense is not a dispositive factor.
Even if waiver were dispositive, the defendant’s right to counsel was not subject to easy waiver; for
[a] person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. Gideon v. Wainwright, 372 U.S. 335. This right attaches at the pleading stage of the criminal process, Rice v. Olson, 324 U.S. 786, and may be waived only by voluntary and knowing action, Johnson v. Zerbst, 304 U.S. 458; Carnley v. Cochran, 369 U.S. 506. Waiver will not be “lightly presumed,” and a trial judge must “indulge every reasonable presumption against waiver.” Johnson, supra, at 464.
Boyd v. Dutton, 405 U.S. 1, 2-3 (1972). The record, in my opinion, does not reflect a proper waiver of a Sixth Amendment right under the stringent standards first enunciated in Johnson v. Zerbst and often reiterated thereafter. Waiver of such a right requires “both the capacity to make an understanding choice and an absence of subverting factors so that *175the choice is clearly free and responsible.” Von Moltke v. Gillies, 332 U.S. 708, 729 (1948) (separate opinion of Frankfurter, J.).
I would reverse the judgment of conviction and remand the case for a new trial.
The Fifth Amendment to the United States Constitution reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.
The Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.
(Emphasis added).
This document read as follows:
I have had the oppurtunity [sic] to converse with my lawyer Michael WEIGHT by telephone this morning at about 1130 hours, 6-24-80. My lawyer advised me not to make a statement concerning the death and my involvement of Sandra DAMAS.
I make the following statement on [sic] my own free will against the advise [sic] of my attorney.
The partial transcript of the relevant testimony, for example, reflects the foliowg:
Q What did you tell him when he asked you if you wanted a lawyer?
A I told him I wanted a lawyer right here but —
Q What did he say?
A He advised me that, that are you still going to lean on Michael Weight, or are . you going to, you know, be like a man or something.
Q (By Mr. Weight) What did you say, Keith, after he said that to you?
A I told him I wanted my lawyer. Then he said, are you going to lean on Michael Weight. Are you going to be a baby to lean on Michael Weight?
Q He said, are you going to be a baby? How did that make you feel?
A Kind of sore inside, you know, hurt inside.
Q All right. What did you say to him when he said that toi you?
A I hesitated for couple of minutes. Then I just confessed.
The Court’s opinion renders this clear, as note 7 therein reads in relevant part:
We thus need not decide Edwards’ claim that the State deprived him of his right to counsel under the Sixth and Fourteenth Amendments as construed and applied in Massiah v. United States, 377 U.S. 201 (1964). In that case, the Court held that the Sixth Amendment right to counsel arises whenever an accused has been indicted or adversary criminal proceedings have otherwise begun and that this right is violated when admissions are subsequently elicited from the accused in the absence of counsel.
The Arizona Supreme Court did not address the Sixth Amendment question, nor do we.
Edwards v. Arizona, 451 U.S. at 480-82 n.7.
DR 7-104 of the Code of Professional Responsibility adopted by this court provides in part:
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
Although the code does not apply to nonlawyers, the conduct of the police officer nevertheless violated the purpose and policy of the disciplinary rule. Furthermore, a deputy prosecuting attorney was later implicated in the matter, and he aided and abetted the officer’s successful attempt to obtain self-incriminating evidence from the defendant over the objections of appointed counsel. This was clearly a violation of the spirit, if not the letter, of the disciplinary rule.
The clearest statement in this regard is probably the footnote in Rhode Island v. Innis, 446 U.S. 291 (1980), which reads:
There is language in the opinion of the Rhode Island Supreme Court in this case suggesting that the definition of “interrogation” under Miranda is informed by this Court’s decision in Brewer v. Williams, 430 U. S. 387. 120 R. I__,__, 391 A. 2d 1158, 1161-1162. This suggestion is erroneous. Our decision in Brewer rested solely on the Sixth and Fourteenth Amendment right to counsel. 430 U.S., at 397-399. That right, as we held in Massiah v. United States, 377 U. S. 201, 206, prohibits law enforcement officers from “deliberately elicit[ing]” incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Custody in such a case is not controlling; indeed, the petitioner in Massiah was not in custody. By contrast, the right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and Fourteenth Amendments as interpreted in the Miranda opinion. The definitions of “interrogation" under the Fifth and Sixth Amendments, if indeed the term “interrogation" is even apt in the Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two constitutional protections are quite distinct. See Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interrogation”? When Does it Matter?, 67 Geo. L.J. I, 41-55 (1978).
446 U.S. at 300 n.4 (emphasis added).