(concurring and dissenting):
I concur in that part of the plurality opinion which holds that the second degree murder conviction must be set aside because the State failed to prove the requisite mens rea.
I.
I dissent, however, from the plurality’s disposition of the case. Since the State failed to prove a necessary element of the crime charged, the appropriate disposition of the case is to reverse the conviction and remand to the trial court to enter a judgment of acquittal. See U.C.A., 1953, § 76-1-403(2); State v. Petree, Utah, 659 P.2d 443 (1983). Instead, however, the plurality — on its own initiative and its own factual determination — holds the defendant guilty of manslaughter and remands to the trial court to enter a judgment of conviction for manslaughter. The plurality relies on § 76-1-402(5)1 as authority for that action, but it misreads that section. This Court is authorized by the statute to reduce the degree of conviction only if (1) a reduction is sought by the defendant and (2) every fact required for conviction of an “included offense” was found by the jury. Id. In the first place, the defendant has not sought reduction of his conviction to manslaughter. In the second place, the jury made no finding on the requisite mens rea for manslaughter. Therefore, the statute is not applicable. Furthermore, the plurality’s disposition violates the defendant’s right to trial by jury and his right not to be twice placed in jeopardy for the same crime. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); State v. Musselman, Utah, 667 P.2d 1061 (1983); State v. Murphy, Utah, 617 P.2d 399 (1980). See also State v. Lamorie, Utah, 610 P.2d 342, 347 (1980) (Stewart, J., concurring).
*1222II.
I also dissent from the part of the plurality’s view that the defendant’s right to counsel under the Sixth Amendment, as interpreted by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), was not violated.
Miranda v. Arizona, supra, held that protection of the Fifth Amendment privilege against compelled self-incrimination entitles a suspect to have counsel present at any custodial interrogation pursuant to the Sixth Amendment and to be informed of that right. Id. 384 U.S. at 469-72, 86 S.Ct. at 1625-26. The fundamental objective of the rule is to ensure that the truth-seeking processes of the criminal law are neither corroded nor corrupted by subjecting a suspect to coercive influences, whether physical or psychological. In Miranda, the Court stated:
That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warnings and the rights of counsel, “all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.”
Id. at 466, 86 S.Ct. at 1623 (quoting Mapp v. Ohio, 367 U.S. 643, 685, 81 S.Ct. 1684, 1707, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting)). In Edwards v. Arizona, 451 U.S. at 485, 101 S.Ct. at 1885, the Court stated that “Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, ‘the interrogation must cease until an attorney is present.’” (Quoting Miranda v. Arizona, 384 U.S. at 474, 86 S.Ct. at 1627) (emphasis added).
An accused may, of course, waive his right to counsel and his privilege against self-incrimination and voluntarily confess. The law has no interest in preventing a person from willingly, intelligently, and knowingly waiving his constitutional rights under the Fifth and Sixth Amendments. However, once one who is in custody invokes his right to the assistance of counsel, interrogation must then stop and the police may not resume interrogation of the suspect unless the suspect himself initiates further communication with the police. Wyrick v. Fields, 459 U.S. 42, 53, 103 S.Ct. 394, 399, 74 L.Ed.2d 214 (1982).
In determining whether a suspect has waived his right to counsel before making an incriminating statement, a strict standard must be met and the burden is on the State to prove the waiver. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). The reasons for imposing a strict standard on the State for proving a waiver are explained in Schneckloth v. Bustamonte, 412 U.S. 218, 241, 93 S.Ct. 2041, 2055, 36 L.Ed.2d 854 (1973):
A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided. A prime example is the right to counsel. For without that right, a wholly innocent accused faces the real and substantial danger that simply because of his lack of legal expertise he may be convicted. As Mr. Justice Harlan once wrote: “The sound reason why [the right to counsel] is so freely extended for a criminal trial *1223is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself.”
(Quoting Miranda v. Arizona, 384 U.S. 436, 514, 86 S.Ct. 1602, 1648, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting).)
The critical issue in the instant case is whether the defendant waived his right to counsel.2 That question is antecedent to the question of whether the defendant’s confession was voluntary. Concededly, the defendant was given a Miranda warning before he gave his confession at 3 o’clock in the morning.
The test for determining whether a suspect has voluntarily waived his privilege against self-incrimination under the Fifth Amendment is different from the test for determining whether he has waived his right to counsel under the Sixth Amendment. With respect to the Fifth Amendment, the State must prove that the confession was the “product of an essentially free and unconstrained choice by its maker[.] If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. at 225-26, 93 S.Ct. at 2046-47 (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961)).
Waiver of the Sixth Amendment right to counsel does not require a showing of absence of coercion, although the existence of coercion would surely vitiate any semblance of a waiver. What is required is that the State prove that the accused intelligently and knowingly relinquished his right to be questioned in the presence of counsel. State v. Moore, Utah, 697 P.2d 233 (1985); State v. Newton, Utah, 682 P.2d 295 (1984). In Wyrick v. Fields, 459 U.S. 42, 54, 103 S.Ct. 394, 399, 74 L.Ed.2d 214 (1982), the Court stated that the State must prove an intentional abandonment or relinquishment of the right to have counsel present. It is because of the importance of the presence of defense counsel in protecting the truth-seeking procedures of the criminal process that the standard for determining whether a suspect has waived counsel is strict and the “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 Brewer the Court held that the police violated the defendant’s right to counsel on facts much less compelling than those in this case. In Brewer a police officer deliberately and purposely induced an accused, in the absence of his attorney, to volunteer incriminating information that pertained to the crime under investigation. The officer engaged in no direct interrogation of the accused. Rather, he engaged in a lengthy monologue designed to play upon the accused’s religious convictions and his psychological vulnerability arising from his mental abnormalities. The Court held that the monologue delivered during a long car ride when the confession was also given, was “tantamount to interrogation.” 430 U.S. at 400, 97 S.Ct. at 1240.
The Iowa trial court in Brewer ruled, on grounds that are similar to those argued by the plurality here, that the defendant had waived his right to counsel by volunteering the information:
The time element involved on the trip, the general circumstances of it, and more importantly the absence on the Defendant’s part of any assertion of his right or desire not to give information absent the presence of his attorney, are the main foundations for the Court’s conclusion that he voluntarily waived such right.
Id. at 401, 97 S.Ct. at 1240. The Iowa Supreme Court, applied the “totality of the circumstances test” — the test applied by both the trial court and the plurality in this case — and sustained the trial court. Id. at 402, 97 S.Ct. at 1241. A federal district *1224court, in a habeas corpus proceeding, held that the defendant had not waived his right to counsel. The court held that the detective’s speech to the defendant constituted an effective psychological manipulation to get the accused to talk by playing upon his deeply held religious views and his mental impairment. The detective’s purpose to induce an apparently volunteered incriminating statement was successful. Id. at 402-03S, 97 S.Ct. at 1241-42.
The United States Supreme Court affirmed the finding of nonwaiver, stating:
We have said that the right to counsel does not depend upon a request by the defendant, Carnley v. Cochran, 369 U.S. 506, 513 [82 S.Ct. 884, 888, 8 L.Ed.2d 70,] cf. Miranda v. Arizona, 384 U.S., at 471 [86 S.Ct. at 1626,] and that courts indulge in every reasonable presumption against waiver, e.g., Brookhart v. Janis, supra, at 4; Glasser v. United States, 315 U.S. 60, 70 [62 S.Ct. 457, 464, 86 L.Ed. 680.] This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings. Schneckloth v. Bustamonte, 412 U.S. 218, 238-240 [93 S.Ct. 2041, 2053, 2054, 36 L.Ed.2d 854]; United States v. Wade, 388 U.S., at 237 [, 87 S.Ct. at 1937.]
430 U.S. at 404, 97 S.Ct. at 1242.
In this case, prior to giving his confession, the defendant had consistently invoked his right to counsel on numerous occasions when asked to give a statement. His very first invocation of the right to counsel should have stopped all further interrogation. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Instead, in clear violation of the law of the land, the police continued pressuring the defendant for a confession. The police conduct did not “border” on illegality, as the plurality would have it; the conduct was just flatly illegal. Indeed, the pressure applied to the defendant to confess in the absence of counsel was far greater than in Brewer. Bolsinger stated time and again after he was informed that he had failed a polygraph test that he would not give a statement without the assistance of counsel. The officers working on the case simply ignored their well-established duty under the law of the land to immediately stop questioning and importuning the accused after he had invoked his constitutional right. Instead of honoring the defendant’s rights, the officers relentlessly persisted in attempting to obtain a confession. For example, Detective Elliott testified that Detective Beckstead had stated to the defendant something to the effect of “let’s talk about it, John. We’re trying to get you an attorney. Something to this effect. And I can’t, you know — again I don’t think that it was an interrogation type conversation. It was, you know, let’s talk about it. We’re trying to get an attorney for you.” Detective Thompson testified: “I asked him to talk to me about it.... I wanted to ask him the question and see what he would tell me.” And again, “John, you know you was in that house and I know you was in that house. Why don’t you tell me about it?” These are but a few of the examples of the continued badgering of the defendant by the police after he had asked for the assistance of counsel.
The police increased the pressure by making the threat that the defendant might be charged with first degree murder unless he talked. That point was vivified and pounded home by a verbal, detailed description of the manner of executing a person by a firing squad, i.e., the strapping of the condemned person to a chair; the placing of a hood over his head; and the calling out of the words “ready, aim, fire,” which would be the last words the condemned, i.e. Bolsinger, would ever hear. In addition, the defendant was held without food during the entire time he was in custody and until sometime after he gave his statement.
The plurality argues that the lapse of time between these communications and his confession was sufficient to purge the confession of the illegal conduct of the police. The position is untenable. First, the defendant was told when he was booked that *1225evening that he had until 8 o’clock the next morning to confess. There was no reason for the police to impose that deadline except that they knew Bolsinger would not be able to talk to an attorney during that time and would be functioning under the threat of a first degree murder charge. Second, the defendant was placed in an area in the jail called the five-cell area or the “Chinese hole” — an area subsequently held to be vio-lative of the cruel and unusual punishment provision of the United States Constitution by the United States District Court for the District of Utah. The reason given by Officer Thompson for placing the defendant in the “Chinese hole” was that the defendant was “extremely depressed and suicidal.” However, no mental health officer visited the defendant after he was jailed. It was in that area that prisoners sometimes threw food, feces, and urine at each other and flooded the floor by stopping up toilets so that the mattresses which lay on the floor in the various cells became soaked. The record does not indicate that the defendant was subjected to that particular abuse, but he was placed in a cell next to a person who had such a severe mental problem that he engaged in extended bouts of screaming during the night.
Third, it is clear that Detective Thompson anticipated that Bolsinger would break and give a statement. When Thompson delivered Bolsinger to the jailer, Thompson stated that he could be reached at any time during the night, even at home after his shift ended, if Bolsinger requested to talk to Thompson. The invitation to interrupt an officer at home during his off-duty hours under such circumstances was unusual. Thompson even handed the defendant his personal card with Thompson’s name on it before Thompson left the jail. When Bolsinger refused to accept the card, Thompson left it on the bars of the jail so that it would be accessible to the defendant. Later that night, Bolsinger asked that Detective Thompson be summoned and at 3:00 a.m. gave a confession after he had been told again of his oft-violated Miranda rights.
Thus, in the wake of (1) the repeated refusals by the defendant to talk without the assistance of an attorney, (2) the deprivation of food, (3) the badgering by the police throughout the day for a confession, (4) the graphic description of the details of an execution by a firing squad, (5) the threat of a first degree murder charge if he did not confess, and (6) the intimidation of being jailed in an area judicially determined to have constituted cruel and unusual punishment, the defendant finally relented and made a self-incriminating statement. All this goes far beyond the “anxiety as a natural incident of being arrested and incarcerated” which was found not to be coercive in State v. Moore, Utah, 697 P.2d 233 (1985).
Clearly the police strategy worked — it produced a statement without counsel present to protect the defendant’s interests. Obviously the defendant was not physically abused. Nor need he have been. The art of inducing confessions by psychological manipulation and pressure is highly developed in this day and age. In a legal and a practical sense, the statement was the product of effective psychological duress, one of the very evils which Miranda was designed to prevent. In a narrow technical sense it can be said that the defendant “initiated” the communication with the police, see Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), but in a realistic sense, it is a mockery of Miranda to say that the defendant waived his right to counsel and voluntarily gave the confession on his own impulse. Indeed, Detective Thompson’s phrasing of his question on waiver at the beginning of Bolsinger’s confession was so artfully and deftly phrased as to itself belie a valid waiver. He asked: “O.k., John, have I or has anyone else threatened you, or promised you anything right now ?” (Emphasis added.) In truth, he had been threatened. In all events, the time lapse did nothing to attenuate the illegal police conduct. This case demonstrates a far more serious violation of Miranda than existed in Brewer v. Williams, supra, where the Court quoted with approval the district court’s conclusion *1226that “ ‘the use of psychology ... ’ ” was plainly “ ‘to elicit incriminating statements’ ” in violation of Miranda. 430 U.S. at 403, 97 S.Ct. at 1241.
In sum, I cannot agree with the plurality opinion that there was a valid waiver or that the confession was voluntary. Both issues, in my judgment, require a reversal of the confession and a new trial with a suppression of the confession.
Perhaps the police were well intentioned in this case. Putting the case in the best light from their perspective, the police were attempting to determine what the defendant’s state of mind was at the time the victim died. But that view of the case cannot change the result. The defendant was over-matched by the police. He needed an attorney to give him a fair explanation of the law and to protect his constitutional rights.
In any event, good intentions do not justify denying a person those rights established by the Constitution of the United States and the Constitution of this state. Denial of one’s constitutional rights, even though by well-intentioned persons sworn to uphold the Constitution, may be as damaging to our institutions as the denial of those rights by those who have illicit intentions.
III.
The view I have of this case leaves me in a dilemma as to its proper disposition. If the Miranda issue were the only issue in the case, I would have to vote to retry the case. In addition to my view of the Miranda issue, I concur with the plurality opinion that the evidence is insufficient to support a conviction of second degree murder. The result of this holding should be the discharge of the defendant because a retrial would violate both section 76-1-403(2) and the defendant’s Fifth Amendment double jeopardy right. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The plurality errs, I submit, in directing a judgment of conviction for manslaughter.
Logically, my position would prevent me from joining the plurality in ordering a judgment of conviction for manslaughter. However, I cannot agree with the disposition that would be required by Chief Justice Hall’s dissent, for obvious reasons. If, however, I simply vote for either one of the dispositions of the ease required by my opinion, i.e., discharge or a reversal and remand for new trial, there would not be a majority of the Court for any one disposition and the judgment of conviction of second degree murder would, therefore, have to be affirmed. But that, in effect, would be the result which only one member of the Court would reach even though three members of the Court would at least set aside the second degree murder conviction. Calling a district court judge to sit as a fifth member of the Court would not likely make any difference in the ultimate resolution of this case, since a vote either for Chief Justice Hall’s opinion or for my opinion would leave the Court without a majority for the proper disposition and an automatic affirmance. If the district judge voted for the plurality position, that would, of course, resolve the difficulty. I opt for the alternative which disposes of the case in the manner that comes closest to the views of three members of the Court. I therefore, with strong reluctance, concur in the reversal of the second degree murder conviction and remand for the purpose of entering a judgment of conviction for manslaughter.
. That section provides:
If the district court on motion after verdict or judgment, or an appellate court on appeal or certiorari, shall determine that there is insufficient evidence to support a conviction for the offense charged but that there is sufficient evidence to support a conviction for an included offense and the trier of fact necessarily found every fact required for conviction of that included offense, the verdict or judgment of conviction may be set aside or reversed and a judgment of conviction entered for the included offense, without necessity of a new trial, if such relief is sought by the defendant.
. There is no question that the defendant was in custody at least from the time he completed the polygraph test. See Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).