State v. Burbine

BEVILACQUA, Chief Justice, with whom KELLEHER, Justice, joins,

dissenting.

The sole issue in the instant case is whether the Fifth and Fourteenth Amendments require suppression of the post arrest confession of the defendant, Brian K. Bur-bine. Burbine contends that he did not knowingly and intelligently waive his constitutional rights to remain silent and to the presence of counsel prior to making his inculpatory statements because the police failed to inform him of Allegra Munson’s availability as counsel during the interrogation process. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Before reaching the question of waiver, however, a threshold determination must be made whether an attorney-client relationship existed between Burbine and Ms. Mun-son. That such a relationship existed is clear. The record indicates that Sheila Ray, Burbine’s sister, contacted the Public Defender’s office on behalf of Burbine, seeking the advice and assistance of assistant public defender Richard Casparian.7 Thereupon, a staff attorney attempted unsuccessfully to contact Casparian and subsequently contacted Allegra Munson, another assistant public defender.

At approximately 8:15 p. m., Ms. Munson telephoned the Cranston police station. Her call was transferred to the detective division and the man who picked up the receiver stated, “Detectives.” Ms. Munson then said, “My name is Allegra Munson. I’m an attorney in the public defender’s office. I’d like to inquire as to whether or not you are holding two people by the name of Burbine and Sparks.” The man responded, “Yes. We’ve got them,” or words to that effect. Ms. Munson then stated that Burbine was represented by Casparian and that if the police intended to put Burbine in any lineups or to question him, she would make herself available because Casparian *33was unavailable at that time. The man on the phone replied, “We’re through with him for the night,” and indicated that Burbine would be brought to court the following morning for arraignment on a breaking- and-entering charge. Ms. Munson was not told of the murder charge.

In State v. Cline, R.I., 405 A.2d 1192 (1979), we held that an attorney-client relationship arises from an agreement between the parties. We further held, however, that the agreement need not be a formal contract but may be implied by the conduct of the parties. In Cline an attorney was appointed to represent suspects who might be arrested over an Easter weekend on a murder charge and who requested counsel. We held that because an attorney-client relationship arises from a bilateral agreement, no such relationship existed until the suspect’s request for counsel during in-custody interrogation because the parties had never met and probably were unaware of each other’s existence prior to that time.

Contrary to Cline, in the instant case, an attorney-client relationship certainly was created prior to the custodial interrogation that resulted in Burbine’s confession. This relationship arose by virtue of the fact that, prior to the interrogation, Burbine’s sister telephoned the Public Defender’s office seeking legal representation for Burbine, and, as a result of that call, Allegra Munson contacted the Cranston police station to advise Burbine.

Although Burbine was unaware that his sister had obtained counsel for him, it is well settled that a third party may retain an attorney on behalf of a suspect who is in custody. See Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969); State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979), cert. denied, 446 U.S. 945, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980); Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977); State v. Jones, 19 Wash.App. 850, 578 P.2d 71 (1978). To hold otherwise would be to ignore the practical implications of the interrogation process. Most lawyers would agree that it is much more difficult for the person in police custody to seek counsel on his own behalf than for a family member or other third party to do so for him. Moreover, to prevent a family member or other third party from obtaining legal representation for a suspect would be tantamount to violating the suspect’s Fifth Amendment right to counsel. As the court in State v. Jackson, 303 So.2d 734, 736 (La.1974), held under similar facts and circumstances:

“[T]he fact that a prisoner does not know [his] family has retained an attorney for [him], does not justify governmental officials to ignore [his] constitutional right to such counsel.”

That an attorney-client relationship was created in the present case is further supported by our decision in State v. Fuentes, R.I., 433 A.2d 184 (1981). In Fuentes we held that such a relationship did not arise merely because the police knew that a particular attorney had represented the defendant in the past. We indicated, however, that such a relationship would arise if the attorney made it clear to the police that the attorney was representing the defendant and that the defendant was not to be questioned outside of the attorney’s presence. In the instant ease, Allegra Munson certainly fulfilled these conditions. Ms. Munson not only notified the police that she was representing Burbine but she also stated that she would be available to advise Burbine in the event he was interrogated. Unquestionably, therefore, an attorney-client relationship was created prior to Bur-bine’s confession.8

*34We now turn to the waiver issue. In addressing the question of waiver, the trial justice must explore the totality of the facts and circumstances surrounding the defendant’s statement. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); State v. Fuentes, supra. We will not disturb the trial justice’s ruling on this issue unless our independent examination of the record of the motion to suppress, made in a light most favorable to the state, discloses that the ruling was clearly erroneous. State v. Proulx, R.I., 419 A.2d 835, 839 (1980); State v. Benton, R.I., 413 A.2d 104, 109 (1980). Based on such an examination of the record, I must find that the trial justice’s ruling that Burbine knowingly and intelligently waived his Fifth and Fourteenth Amendment rights was clearly erroneous.

The record discloses that the police first interrogated Burbine concerning the death of Mary Jo Hickey shortly after Burbine had been taken to the Cranston police station on a breaking-and-entering charge. Following a tip that a man named “Butch,” who lived at a certain Providence address, had killed Mary Hickey, a Cranston detective informed Burbine of his Miranda rights and asked Burbine if he knew of “Butch.”9 Burbine would not sign a waiver-of-rights form at that time. However, Burbine did answer that he was the only person named “Butch” living at the specified address. The interrogation then ceased.

As previously stated, at approximately 8:15 p. m., Allegra Munson telephoned the Cranston police station and spoke with a man who answered the phone in the detective division. The man informed Ms. Mun-son that Burbine was in custody. After identifying herself and notifying the man that she was representing Burbine, she asked the man if Burbine would be put into a lineup or questioned that evening. The man responded that the police were through with Burbine for the evening. Ms. Munson then stated that if Burbine were to be questioned, she would make herself available as counsel.

Contrary to the representations made to Burbine’s attorney, the police questioned Burbine twice that evening and once the next day concerning the death of Mary Jo Hickey. On each occasion, the police informed Burbine of his Miranda rights and Burbine signed a waiver-of-rights form. However, the police never informed Bur-bine that Allegra Munson had agreed to be available if he were questioned. During the interrogation, Burbine signed three confessions stating that he had killed the victim. The first signed confession was obtained at approximately 10:20 p. m. The second signed confession was taken at approximately 11:20 p. m. The police obtained the third signed confession at 12:30 p. m. the following day.

The trial justice found as a fact that Allegra Munson did telephone the Cranston police station and that someone responded. He also found that there was no conspiracy or collusion by the Cranston police department to secrete Burbine from his attorney.

The waiver of a constitutional right must not only be voluntary but must also be a knowing and intelligent relinquishment of a known right or privilege. The determination of a valid waiver depends “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466. In Miranda the Supreme Court reasserted these “high standards” as applicable to determinations of waiver of the privilege against self-incrimination during in-custody interrogation. Miranda v. Arizona, 384 *35U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724; see State v. Vargus, 118 R.I. 113, 373 A.2d 150 (1977). It is well known that Miranda also established certain procedural safeguards that law enforcement officers, must employ prior to custodial interrogation to inform the suspect of his rights under the Fifth and Fourteenth Amendments. These safeguards are the now-familiar Miranda warnings that advise the suspect that he has the right to remain silent and the right to the presence of counsel.10

Because of the inherently coercive nature of the interrogation process, Miranda placed a heavy burden on the government to establish a knowing and intelligent waiver if the interrogation continues without the presence of counsel. Thus, the Court held that

“[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724.

Miranda further established that once the warnings are given, the suspect may invoke his Fifth Amendment rights at any time; and in such event, the interrogation must cease. Moreover, the court held that the prosecution may not admit into evidence any statements stemming from custodial interrogation unless it demonstrates that the warnings were given and that the suspect knowingly and intelligently waived his rights.

In the instant case, the trial justice found a valid waiver because Burbine was informed of his Miranda rights on three separate occasions and signed a waiver-of-rights form each time prior to making his inculpa-tory statements. However, as Miranda indicates, although strong proof of waiver, Burbine’s express written statements of waiver do not necessarily establish that the waiver was knowing and intelligent. Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724; see North Carolina v. Butler, 441 U.S. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292 (1979); State v. Proulx, R.I., 419 A.2d at 841.

Based on the totality of the facts and circumstances attending Burbine’s inculpa-tory statements, I must find that Burbine did not knowingly and intelligently waive his Fifth and Fourteenth Amendment rights, specifically, his right to the presence of counsel.11 See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), North Carolina v. Butler, 441 U.S. at 374-75, 99 S.Ct. at 1758, 60 L.Ed.2d at 293; Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466; State v. Fuentes, R.I., 433 A.2d at 191-92; State v. Amado, R.I., 424 A.2d 1057, 1061 (1981).

The critical factor supporting my position is that the police failed to notify Burbine of Ms. Munson’s availability as his counsel during the interrogation process. Although a suspect has previously been informed of his abstract right to counsel and has waived that right, he must be informed when his counsel actually seeks to advise him and must knowingly and intelligently reject such opportunity before subsequent statements may be taken and used against him. State v. Haynes, 288 Or. at 70, 602 P.2d at 273. Thus, without knowledge of Ms. Mun-son’s availability as counsel, Burbine could *36not make an informed waiver of his right to the presence of counsel. This holding is consistent with those of other jurisdictions. See State v. Jackson, 303 So.2d at 737; Commonwealth v. McKenna, 355 Mass. at 325, 244 N.E.2d at 566; State v. Haynes, 288 Or. at 70, 602 P.2d at 277; Commonwealth v. Hilliard, 471 Pa. at 322, 370 A.2d at 324; State v. Jones, 19 Wash.App. at 853, 578 P.2d at 73.

A brief recitation of the facts of two of the above cases will illustrate the similarity between those cases and the instant case.

In the recent Pennsylvania decision of Commonwealth v. Hilliard, supra, the defendant was given his Miranda rights prior to questioning concerning a murder charge. During this period, the defendant’s wife contacted the Public Defender’s office seeking representation for the defendant. When an assistant public defender arrived at the police station, the police denied him access to the defendant, asserting that the defendant had not requested counsel. The defendant subsequently made a confession. The court found that although the defendant had not requested counsel and, indeed, had waived his right to have counsel present during questioning, that waiver was invalid:

“Appellant’s failure to request counsel, when his attorney has been denied access and appellant has not been informed of his attorney’s availability, cannot support a determination that he has waived his right to counsel.” Commonwealth v. Hilliard, 471 Pa. at 322, 370 A.2d at 324.

Our neighboring state of Massachusetts reached the same result in Commonwealth v. McKenna, supra. In McKenna the defendant was arrested for murder at his home and advised of his rights. Before he was taken to the police station, he asked his aunt to contact his counsel. While the defendant was being questioned at headquarters, his counsel telephoned the police station and told the police sergeant that he represented the defendant and that the defendant should not be interrogated outside his presence. The sergeant gave evasive answers and continued questioning the defendant, who ultimately made inculpatory statements. The defendant was not informed of his counsel’s availability. Although the defendant never requested counsel, the Supreme Judicial Court of Massachusetts held that whatever waiver existed prior to defense counsel’s call became inoperative thereafter because the defendant “was entitled to know of his counsel’s availability and, with that knowledge, to make the choice [whether to have counsel present] with intelligence and understanding * * Commonwealth v. McKenna, 335 Mass, at 324, 244 N.E.2d at 566.

In the instant case, the majority hypothesizes that knowledge of Allegra Munson’s availability as his counsel would not have added significantly to the quantum of knowledge necessary for Burbine to make an informed waiver. To the contrary,

“[t]o pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second. If the attorney appears on request of one’s family that fact may inspire additional confidence.” State v. Haynes, 288 Or. at 72, 602 P.2d at 278.

Another factor supporting my finding that Burbine did not make a valid waiver is that the police effectively deprived Ms. Munson of a reasonable opportunity lo consult with Burbine during questioning. In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court established that the state must afford an attorney reasonable access to his client during interrogation and strongly disapproved of such police misconduct as existed in the instant case:

“It ‘would be highly incongruous if our system of justice permitted the district attorney, the lawyer representing the State, to extract a confession from the accused while his own lawyer seeking to speak with him, was kept from him by *37the police.’ ” Id. at 487, 84 S.Ct. at 1763, 12 L.Ed.2d at 984 (quoting People v. Donovan, 13 N.Y.2d 148, 152, 193 N.E.2d 628, 629, 243 N.Y.S.2d 841, 843 (1963)).

Jurisdictions have adhered to the reasoning of Escobedo. See United States v. Springer, 460 F.2d 1344, 1353 (7th Cir. 1972); Coughlan v. United States, 391 F.2d 371, 372 (9th Cir. 1968); United States v. Wedra, 343 F.Supp. 1183, 1185-87 (S.D.N.Y.1972); State v. Jackson, 303 So.2d at 737; Commonwealth v. McKenna, 355 Mass. at 325, 244 N.E.2d at 567; Commonwealth v. Hilliard, 471 Pa. at 322, 370 A.2d at 324; State v. Jones, 19 Wash.App. at 853-54, 578 P.2d at 72-73.

Although the trial justice found that in the present case there was no conspiracy or collusion on the part of the police to secret Burbine from his attorney, the assurance the police gave to Ms. Munson that Burbine would not be interrogated, upon which assurance she reasonably relied, was “as effective in preventing consultation as the physical barrier which confronted Escobe-do’s attorney at the jail house door.” United States v. Wedra, 343 F.Supp. at 1186 (quoting Coughlan v. United States, 391 F.2d at 375 (Hamley, C. J., dissenting)). Moreover, in the instant case, “[t]he focus must be on the rights of the accused, not the innocence or culpability of the police.” Commonwealth v. Hilliard, 471 Pa. at 323, 370 A.2d at 324. Thus, in view of the heavy burden the government must meet to establish a valid waiver, the police cannot claim that Burbine knowingly and intelligently waived his right to counsel when their actions effectively deprived Ms. Munson of a reasonable opportunity to advise Burbine during the interrogation. See Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724.

For the foregoing reasons, I would grant the motion to suppress the signed confessions taken from Burbine. This does not mean, as the majority asserts, that I adopt the so-called New York rule, under which a suspect may never waive his Fifth Amendment rights outside his counsel’s presence. See People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976); People v. Donovan, 13 N.Y.2d 148, 193 N.E.2d 628, 243 N.Y.S.2d 841 (1963). A suspect may, after being fully informed of the availability of counsel, knowingly and intelligently waive his rights without consultation with his attorney. See Miranda v. Arizona, 384 U.S. at 478-79, 86 S.Ct. at 1629-30, 16 L.Ed.2d at 726. However, as the Supreme Court held in Miranda,

“[wjithout the protections flowing from adequate warnings and the rights of counsel, ‘all the careful safeguards erected around the giving of testimony [at trial], 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.’ ” (Emphasis added.) [Citations omitted.] Id. at 466, 86 S.Ct. at 1624, 16 L.Ed.2d at 719.

Under the facts and circumstances of the instant case, it is apparent that the police failed to advise Burbine properly of his Miranda rights. In Miranda, the Supreme Court underscored the necessity of the presence of counsel to eliminate “the evils in the interrogation process.” As the Supreme Court held:

“The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.” Id. at 469, 86 S.Ct. at 1625, 16 L.Ed.2d at 721.

To allow the police to interrogate, and elicit a confession from, a suspect without informing the suspect of his counsel’s availability while effectively denying his counsel reasonable access, would promote those “evils” inherent in the interrogation process which Miranda condemned. I cannot support a result under which the procedural safeguards carefully created by Miranda to protect Fifth and Fourteenth Amendment *38rights would be reduced to a meaningless ritual. In view of the foregoing, I must find that the defendant, Brian Burbine, did not knowingly and intelligently waive his Fifth and Fourteenth Amendment rights to counsel.

. Richard Casparian was representing Burbine on a prior, unrelated charge. Sheila Ray told a staff attorney that because of his arrest, Bur-bine had been unable to keep an appointment that afternoon with Casparian concerning the other charge.

. Even though I find that Allegra Munson represented Burbine in her capacity as private counsel, I would not find it fatal if Ms. Munson had so acted in her capacity as assistant public defender. General Laws 1956 (1981 Reenactment) § 12-15-3 imposes a duty on public defenders to represent and act as attorneys for indigent criminal defendants. Although the statute requires formal appointment of public defenders before they may represent indigents, to insist on strict compliance with the appointment procedure in the instant case would exalt form over substance.

As the Supreme Court held in Miranda:

“Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the simi*34lar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] (1963), and Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811] (1963).” Miranda v. Arizona, 384 U.S. 436, 472-73, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 722-23 (1966).

. The detective had previously asked D’Orio, who had been arrested with Burbine on the breaking-and-entering charge, the same question. D’Orio responded that Burbine was the only person called “Butch” who lived at that address.

. The specific Miranda warnings are as follows. The suspect must be informed

“that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

. The Sixth Amendment right to the assistance of counsel attaches only after the commencement of judicial proceedings against the defendant. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); State v. Fuentes, R.I., 433 A.2d 184 (1981); State v. Amado, R.I., 424 A.2d 1057 (1981).