DISSENTING OPINION OP
ABE, J., WITH WHOM MARUMOTO, J., JOINS.I disagree with the Court’s decision and I would reverse the judgment of the trial court.
The uncontradicted testimony of the investigating officer is that when he asked the defendant whether he wanted an attorney to be present while being interrogated, the defendant had indicated that he did not want an attorney then, but wanted one after he was released.
Miranda v. Arizona, 384 U.S. 436, 471 (1966), makes it clear that an accused “has the right to consult with a lawyer and to have the lawyer with him during interrogation ” for the protection of his privileges under the Fifth Amendment. Miranda also holds that an accused “may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently”; but where an accused is questioned without the presence of an attorney, the State has a heavy burden to demonstrate “that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda v. Arizona, supra at 444, 475.
The role of defense counsel at the trial differs very much from the role that he plays during an interrogation. The defendant’s answer to the investigating officer that he would retain an attorney after his release shows clearly that he did not know what the role of an attorney would be during the interrogation. To say that the defendant knowingly and intelligently waived his right to counsel because he signed the form of waiver presented to *268him by the detective is to ignore substance to “a form of words.” cf. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920); Miranda v. Arizona, supra at 444.
Under the record of this case, the State has failed to meet its heavy burden of showing that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel during the interrogation, and the trial judge committed prejudicial error in permitting the investigating officer to testify as to the inculpatory statement made by the defendant.