dissenting. Today, the majority announces that a prosecutor can either misstate or deceive an accused regarding whether the accused has the right to have counsel present during the custodial interrogation portion of a criminal prosecution and that doing so does not constitute prejudicial error. In affirming, the majority 1) endorses the State’s misconduct and its effect of negating appellant’s Miranda rights by misinforming him that he did not have the right to an attorney during the interrogation unless his mother paid for an attorney; and 2) punishes appellant, who did not request an attorney after being told by the prosecutor that he did not possess the right to an attorney at that point in the proceedings.
I agree with the majority that appellant’s mother could not assert his right to an attorney. I defer to the trial court’s credibility finding that appellant did not assert his right to an attorney. I also agree that appellant’s confession was not swayed by false promises of leniency. However, the majority misapprehends the dispositive issue in this case as well as my reason for recommending reversal: regardless of who asked for an attorney, it is undisputed that appellant confessed only after Prosecutor Jack McQuary responded to the request by falsely informing appellant that he had no right to an attorney until he was charged, unless appellant’s mother paid for the attorney.
Presumably because appellant failed to request an attorney, the majority wholly fails to analyze the effect of McQuary’s misstatement. However, to affirm simply because appellant did not invoke his right to counsel ignores the governing law concerning such misstatements. The majority decision also begs the question of whether appellant was misled to believe that he had no right to counsel and whether the prosecutorial misrepresentation affected his subsequent decision to provide incriminating evidence to the police. The fact that appellant believed he understood his Miranda rights but did not invoke his right to counsel does not mean, ipso facto, that any statement made during his custodial interrogation was necessarily the product of a free and deliberate choice. Thus, the fundamental issue is whether appellant’s failure to invoke his right to an attorney was the result of intimidation, coercion, or deception by the State. The record clearly shows that it was; therefore, I would reverse.
The majority correctly cites the standard of review governing custodial statements, but fails to mention that in order to determine whether a waiver of Miranda rights is voluntary, knowing, and intelligent, the appellate court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Miranda v. Arizona, 384 U.S. 436 (1966); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). In this case, an examination of the totality of the circumstances surrounding the giving of appellant’s inculpatory statements requires an examination of appellant’s rights pursuant to Miranda, his rights as stated in the rights form that he signed, and his rights as subsequently negated by the prosecutor’s misstatements.
A defendant’s Fifth Amendment right to an attorney prior to and during custodial interrogation has been succinctly explained by the United States Supreme Court in Miranda as follows:
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead.
384 U.S. at 471-72 (emphasis added).
The very purpose of the Miranda warnings is to inhibit misconduct by State authorities. See id; Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996). Further, the interest protected by the Miranda warnings is the suspect’s “desire to deal with the police only through counsel.” Edwards v. Arizona, 451 U.S. 477, 484 (1981) (emphasis added). Thus, Miranda requires that “if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation.” Miranda, supra at 474 (emphasis added). Additionally, the Fifth Amendment privilege protected by Miranda comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires. Miranda, supra at 470.
Even if appellant did not invoke his right to an attorney, that does not end the voluntariness inquiry because the question of voluntariness and the question of a knowing and intelligent waiver are separate inquiries. See Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). Appellant’s inculpatory statements in this case, made without benefit of counsel, were elicited in violation of his Miranda rights because they were the involuntary product of the prosecutor’s false statement that appellant had no right to an attorney until he was charged, unless his mother paid for an attorney.
The majority does not and cannot dispute that appellant was entitled to an attorney. After all, appellant clearly was being custodially interrogated. See Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997). He was taken into custody on a parole violation on August 17, 2004, and remained in custody when he confessed on August 20, 2004. Therefore, his Fifth Amendment right to an attorney under Miranda attached on August 17, when the custodial interrogation began.
The form that appellant signed in this case stated in relevant part:
3. Do you understand that you have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during the questioning?
4. Do you understand that if you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish, at no cost to you?
5. Do you understand that if you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time? You also have the right to stop answering at any time until you talk to a lawyer.
The words, “Yes, Sir” and appellant’s initials appear after these questions. Thus, this form clearly informed appellant that he had the right to an attorney before and during the questioning regarding the burglaries.
Despite the majority’s implication, there is no credibility issue regarding whether Prosecutor McQuary subsequently misinformed appellant regarding his right to an attorney during questioning. The prosecutor’s misleading statement that followed appellant’s signing of the rights form was not merely “alleged” and was not merely directed to the mother, as the majority asserts. Rather, it is undisputed that Detective Gibbons, who was present during the interview, testified that Prosecutor McQuary “said that if and when he [appellant] was charged with anything he would go to court and he could be appointed an attorney or she [his mother] could get him an attorney if she wanted an attorney. That if he wanted an attorney that everything would stop.” It is also undisputed that both appellant and his mother were present and heard McQuary’s misrepresentation of appellant’s rights.
McQuary clearly misstated the law. His statement directly contradicted appellant’s Miranda rights and the Miranda form signed by appellant. Essentially, McQuary told appellant that he had no right to an attorney during the interrogation unless his mother paid for one. See Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987) (reversing because the Miranda warning provided to the defendant did not convey to the defendant that he could have a lawyer appointed free of charge); Reed v. State, 255 Ark. 63, 498 S.W.2d 877 (1973) (holding that Miranda warnings were inadequate where, although the written Miranda waiver informed the defendant that he had the right to an attorney before making any statement or answering any question, the police officer indicated to the defendant that if he did not have an attorney before he went to trial the court would appoint an attorney for him).
Nonetheless, it is true that a misstatement of fact by an officer, standing alone, does not invalidate a subsequent confession. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997). For a statement to be involuntary, the confession must have been induced or influenced by the police officer’s statements. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Here, after Mc-Quary’s misrepresentation, appellant decided to cooperate with Pulaski, Saline, and Grant County detectives. In particular, on August 20, appellant confessed to the two burglaries in Grant County that are the subject of this appeal. Appellant testified that but for McQuary’s promise to speak to the other prosecutors, he (appellant) would have not spoken to the Grant County police officers.
Although ignored by the majority, the effect of McQuary’s incorrect and misleading statement that appellant was not entitled to an attorney until he was charged with a crime was to undermine or negate appellant’s understanding of his rights and thus, to negate the over-all effectiveness of the Miranda warnings. See, e.g., contra, Tasby v. U.S., 451 F.2d 394 (8th Cir. 1971) (affirming Miranda warnings where the defendant was told that he would be appointed an attorney “at the proper time” because that statement did not negate the overall effectiveness of the Miranda warnings). Further, it is clear that McQuary’s statement, made in appellant’s presence and in response to an inquiry about an attorney, directly affected appellant’s capacity to comprehend and knowingly relinquish his constitutional right “to deal with the police only through counsel.” See Edwards, supra at 484. The majority must concede that appellant’s initial understanding that he had a right to an attorney during questioning was subsequently vitiated when McQuary misinformed him to the contrary, his experience with the legal system notwithstanding.
Thus, it cannot be said that McQuary’s statement did not induce appellant’s decision to thereafter confess. McQuary made it clear to appellant that despite what appellant believed his rights to be, he had no right to an appointed attorney until he was charged. The majority does not explain how appellant can somehow be held to have freely relinquished a right that he was told he did not have. I do not understand how the majority can conclude that appellant’s statements were made without coercion, deception, or intimidation when appellant was incorrectly told that he had no right to an attorney until he was charged, when appellant was told that if he cooperated (in other words, incriminated himself), McQuary would contact the other prosecutors to see if they could “wrap up” all of his charges at one time, and appellant shortly thereafter decided to cooperate with the police without benefit of an attorney during his custodial interrogation.
Miranda warnings may be sufficient where a defendant is correctly informed that an attorney will be appointed when he goes to court but the warnings do not otherwise negate the defendant’s right to counsel during interrogation. See Duckworth v. Eagan, 492 U.S. 195 (1989); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). Idowever, the United States Supreme Court has recognized a difference in those cases in which the effect of the warnings is to link an accused’s right to an appointed counsel to a point in time following the police interrogation. See California v. Prysock, 453 U.S. 355 (1981). The Prysock court upheld Miranda warnings in which the accused was informed, prior to and during his interrogation, of his right to have an attorney present prior to and during interrogation at no cost if he could not afford an attorney.
However, in so holding, that Court found that “nothing in the warnings given [to the accused] suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general, including the right to a lawyer” before and during questioning. Id. at 361. In particular, the Court noted the contrast between Prysock and other cases in which “the reference to the right to appointed counsel was linked with some future point in time after the police interrogation.” Id. at 360.
The Prysock rationale applies here because McQuary’s comment effectively negated appellant’s right to an attorney during interrogation and linked his right to an attorney to a time point following interrogation, unless his mother paid for an attorney. This case is similar to Reed, supra, in which the Arkansas Supreme Court held that Miranda warnings were inadequate where, although the written Miranda waiver informed the defendant that he had the right to an attorney before making any statement or answering any question, the police officer indicated to the defendant that if he did not have an attorney before he went to trial the court would appoint an attorney for him. The Reed court explained: “The officer’s statement of Reed’s rights was fatally defective in that it failed to inform Reed that he was entitled to the services of an appointed attorney at the time of the interrogation.” Id. at 64 (emphasis added). See also Moore v. State, 251 Ark. 436, 472 S.W.2d 940, 442-43 (1971) (holding that Miranda warnings were insufficient as to an indigent defendant where the written form explaining Miranda rights stated that an attorney “will be appointed for you, if you wish, if and when you go to court”). The effect of the prosecutor’s statement in the instant case similarly operated to misinform appellant that he had no right to an attorney during the interrogation unless his mother provided one.
Finally, while appellant generally confessed to committing some burglaries and requested a deal before McQuary misinformed him concerning his right to an attorney, appellant’s initial request for a deal should not preclude a finding that his statement was involuntary based on McQuary’s subsequent misrepresentation regarding his right to an attorney. By volunteering information or asking for a deal, a defendant does not forever waive his right to an attorney or necessarily evince an intent to accept the bargain without an attorney. Moreover, appellant’s general confession in no way duplicated the detailed, incriminating information that he gave the police following McQuary’s misinformation and promise to contact the other prosecutors in exchange for appellant’s cooperation. Thus, it cannot be said that the error in admitting the evidence was harmless because appellant’s confessions were cumulative to any statements he made prior to McQuary’s misrepresentation.
Because appellant’s confession was induced by the prosecutor’s misstatement concerning his right to an attorney, I would reverse the trial court’s denial of appellant’s motion to suppress. Unfortunately, I suspect that today’s holding will do nothing to induce prosecutors to be accurate in their dealings with accused persons during custodial interrogations. If anything, the result announced today appears to signal that prosecutorial misrepresentations and deceptions concerning Miranda rights are judicially excused. Respectfully, I must dissent.