Dennis v. State

1999 OK CR 23, 990 P.2d 277, 70 O.B.A.J. 1591, 1999 Okla. Crim. App. LEXIS 51, 1999 WL 289384

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 6, 1999
• Docket: F-97-1220
• Status: Published

Opinions

CHAPEL, Judge:

¶ 1 Joseph Jerome Dennis was tried by jury and convicted of First Degree Murder in violation of 21 O.S.1991, § 701.7(A), in the District Court of Grady County, Case No. CF-96-112. In accordance with the jury’s recommendation, the Honorable James Winchester sentenced Dennis to life imprisonment without the possibility of parole. Dennis appeals this conviction and sentence and raises two propositions of error.

¶2 On Monday, April 15, 1996, Dennis went to Don’s Friendly Auto in Chickasha. Mark Rogers, a mechanic, had been working on Dennis’s girlfriend’s car for several weeks. Rogers had done other auto work for Dennis and had sold him a car recently. Witnesses saw Dennis and Rogers arguing the preceding Friday and Saturday. After the Friday argument, Dennis told another mechanic that if Rogers gave him trouble he’d “cap him in the forehead.” As Dennis and that mechanic bent over his car engine, a .45 Glock semiautomatic pistol fell out of Dennis’s jacket.

¶ 3 According to Dennis’s confession, on April 15th Rogers refused to continue working on his girlfriend’s car. Dennis pulled his gun but did not point it and told Rogers not to make him do this, to fix his car. Rogers grabbed the gun and it went off. The bullet entered Rogers’s forehead between his eyes,' killing him instantly; it apparently then went through a wall clock and the metal building-wall and landed well away from the building, where police later found it. Dennis drove away in Rogers’s car, returned and pulled the garage doors shut, drove away again, returned and left the car. Witnesses saw him drive the car and close the doors.

¶ 4 Dennis was questioned on April 17th and 18th and twice on May 1st. Each time he received Miranda¹ warnings and waived his rights. During the first three interviews he denied any involvement and suggested names of other people who might have killed Rogers. On May 1st police picked him up at his girlfriend’s apartment. Before they left, Ms. Hodge-Sanchez said “they” would not talk to police without talking to a lawyer. Dennis said something like, “Yeah, - we would.” However, Dennis told officers he did not need a lawyer and would talk with them, and went to the police station voluntarily. Before the interview began he was allowed to sit in the reception room for twenty or thirty minutes talking to Hodge-San-ehez and his mother. The women discussed getting an attorney, and Dennis said again that he had nothing to hide, did not need a lawyer, and would talk to police. During the interview, he waived his Miranda rights and denied any knowledge of the crime. After Captain Bray demonstrated his theory of the crime by poking Dennis in the head, Dennis yelled for police, claimed this was a “racial thing”, and asked for an attorney. Bray responded that was fine, he could not talk to Dennis any more, and Dennis was going to jail because too many people put him at the scene. As Bray left the room, Dennis called him back and said he had nothing to hide, did not need a lawyer, and would talk to police. After Officer Adams told Dennis he knew Dennis had owned and sold a .45 Glock semiautomatic pistol, Dennis changed his story. He was again warned and waived his Miranda rights, and told Captain Bray and Adams the story above. This portion of the interview was taped.

¶ 5 While Dennis was confessing, Ms. Hodge-Sanchez hired attorney Richard Weldon on Dennis’s behalf. Weldon called the station and demanded to speak with Dennis. Police referred the request to Assistant District Attorney Bret Burns, who was present at the police station. Burns refused to allow Weldon to see Dennis until after he had been charged and booked, as Dennis had neither requested an attorney nor hired Weldon. Weldon telephoned District Judge Van Dyck for assistance; officers told Judge Van Dyck that Weldon was not Dennis’s counsel since Dennis had not requested counsel or personally retained Weldon. Weldon then went to the station where he was refused access.

¶ 6 In Proposition I Dennis claims that he invoked his right to counsel while in custody of the Chickasha police detectives, so any statement made by him should have been suppressed as a product of police-initiated questioning. Dennis mistakenly asserts that he invoked his right to counsel on May 1st, while still at Hodge-Sanchez’s apartment, when he said something like, “Yeah, we would,” after Hodge-Sanchez said they would only talk to police after talking to a lawyer. His entire proposition depends on this Court’s agreement that this extremely vague statement invoked his right to counsel. This statement does not even reach the level of an ambiguous request for counsel, and, of course, police are not required to stop questioning when faced with an ambiguous request.² Dennis inexplicably claims police im-permissibly initiated conversation after this statement. He admits that, before leaving the apartment, Dennis told officers he had nothing to hide, did not need an attorney, and would talk with them. Once at the station, he twice waived his right to an attorney.

¶ 7 Dennis claims he was in custody when he was taken in for questioning. He points to the unusual number of uniformed policemen who went to Hodge-Sanchez’s apartment and speculates that, although the record is silent, Dennis “surely must have felt compelled to go with them.”³ He admits officers testified Dennis was free to leave but does not mention that Detective Adams told Dennis before the interview he was free to leave but it would not be in his best interest. He points to Captain Bray’s testimony that he knew Dennis had committed the crime and suggests that the detectives’ intent was to question Dennis until he confessed. Even if this is true, it does not mean Dennis was in custody when he was taken to the station. As he admits, the issue is not the officers’ intentions, but whether a reasonable person in Dennis’s place would have thought he was free to leave.⁴ Dennis also supports this claim with the “facts” that Captain Bray poked him during a demonstration of the crime and Dennis yelled for police. Whether or not Dennis felt he was free to leave during the interview at the station, these facts can have no bearing on his feeling regarding his position at the time he was taken in for questioning, as they had not then occurred.⁵

¶8 Dennis did not invoke his right to counsel while at his girlfriend’s apartment. The record does not support his claim that he was in custody when taken to the police station. Even if he were, he explicitly twice waived his Miranda rights and also twice told police that he did not need an attorney and would talk to them. The trial court did not abuse its discretion in failing to suppress Dennis’s May 1,1996 statements. This proposition is denied.

¶ 9 In Proposition II Dennis claims the trial court erred in failing to grant the motion to suppress his statements because he should have been informed his attorney was present and available to consult with him. Dennis claims that while he was in the interview room confessing, an attorney retained for him was just outside the door, loudly demanding to see him. In Lewis v. State,6 decided in 1984, this Court held a Miranda waiver is not voluntary where a defendant is not told counsel is present. Relying on the Oklahoma Constitution, the Court reasoned that a defendant cannot knowingly and intelligently waive his rights to counsel and against self-incrimination where he does not know that retained counsel is present and ready to consult with him before he waives his rights.⁷ This is true even though the attorney was hired by others acting on the defendant’s behalf without his knowledge.⁸ The Court noted that an attorney has no right to see a client, but could not find that an accused knowingly and intelligently waived his rights “when it was not made known to him that his lawyer was, in effect, knocking at the jailhouse door.”⁹ We recognized that a suspect may very well refuse to see an identified attorney and may waive his rights after knowing an attorney is available.¹⁰ However, we reasoned that he cannot knowingly waive his state rights to counsel and against self-incrimination when he is not informed a specific attorney is trying to reach him in order to consult about those very rights.¹¹ Without holding police deception was required to create a constitutional violation, we noted with disfavor that there was some evidence that Lewis’s attorney was purposefully kept from his client.¹²

¶ 10 In Moran v. Burbine,¹³ the United States Supreme Court reached the opposite conclusion. That 1986 decision held the federal constitution does not require police to inform a defendant who has not requested an attorney that one is present, reasoning that a defendant’s ability to make a voluntary waiver should not be affected by developments of which he knows nothing. The Burbine Court noted that some states chose to interpret their own statutes or constitutions more broadly and limited its holding to the Fifth Amendment of the United States Constitution, holding that nothing in the decision prevented states from implementing different procedures on independent state grounds.¹⁴ The trial court, overruling Dennis’s motion to suppress, noted the conflict between Burbine and Lewis and stated its ruling would give this Court a chance to “revisit” the Lewis decision. During the pendency of this appeal this Court decided Tilley v. State,15 in which we adopted Bur-bine without analysis or explanation. The effect of Tilley on this case is discussed below.

¶ 11 Since Burbine, several states have considered the issue. While the State claims the majority of states now follow Burbine, the cases are not so clear. Some opinions do not distinguish between federal and state constitutions, or are otherwise not helpful to our analysis.¹⁶ Six states follow Burbine and rely solely on the federal constitution.¹⁷ Seven states explicitly interpret their own constitutions as offering the same protection as the federal constitution and rely on the Burbine reasoning when interpreting their constitutions.¹⁸ Eight states conclude their state constitutions offer more protection than the federal constitution affords.¹⁹ Texas and Connecticut fashioned a case-by-case approach rather than a bright-line rule where the state constitution is involved.²⁰ The American Bar Association Standards for Criminal Justice also accord with states offering greater protection, rather than Bur-bine21

¶ 12 In Lewis we relied on State v. Haynes,22 in which the Oregon Supreme Court interpreted similar provisions providing a right to counsel and a right against self-incrimination in the Oregon constitution. Lewis extensively quoted the Haynes analysis. Haynes discussed the importance of the right to counsel and determined:

To pass up an abstract offer to call some unknown lawyer is veiy 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. He, too, will perhaps be sent away.... But ... when law enforcement officers have failed to admit counsel to a person in custody or to inform the person of the attorney’s efforts to reach him, they cannot thereafter rely on defendant’s “waiver” for the use of his subsequent uneounseled statements or resulting evidence against him.²³

Haynes concluded that police failure to inform a suspect a retained attorney was attempting to reach him required reversal because: “When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.”²⁴ Oregon has explicitly reaffirmed Haynes since the Burbine decision.²⁵ However, the Oregon Supreme Court has limited the issue to cases in which an attorney-client relationship exists for a specific charge, and an attorney may not prevent police from questioning a suspect about an unrelated crime for which he does not represent the suspect.²⁶

¶ 13 In contrast to the analyses in Lewis and Haynes, which focus on the ability of the suspect to make a knowing waiver while unaware of important information, courts following Burbine tend to east the issue as one of a suspect’s knowledge of outside actions versus an attorney’s desire to speak with a client. As the Wisconsin Supreme Court explained:

Since the knowledge of the location of counsel adds no constitutional rights, does not alter the facts of the case as the suspect knows them, and does not give rise to any coercive influence by the police, such knowledge is not relevant to the suspect’s voluntary decision to waive his rights. Although a suspect who was ready to waive his rights might change his mind when told an attorney was waiting to see him, the critical factor would be the convenience of seeing the attorney, not the intelligent perceived need for legal counsel. Since the convenience of the defendant is not constitutionally protected, the location of a particular attorney is not constitutionally required information.²⁷

This approach disregards deliberate police efforts at deception.

¶ 14 In Tilley we described the holding in Lewis and stated, without analysis or citation to any of the authority discussed above:

While we are cognizant that States are free to provide greater protections in their criminal justice systems than the Federal Constitution requires, we now adopt the Supreme Court’s rationale in Moran.28

Upon reconsideration, taking into account the circumstances presented by this case, we have determined it was unnecessary to completely overrule Lewis. Rather than create a bright-line rule either permanently adopting or discarding Lewis, we adopt a totality of the circumstances test, described below, to be applied on a case-by-case basis. Application of this test would not change the outcome in Tilley. The record in Tilley shows the defendant’s attorney attempted to contact him by telephone, possibly after he had confessed. Under these facts Tilley cannot show error under the totality of circumstances test. Our holding today applies only where an attorney is present while a defendant is questioned and actively tries to see the defendant, who is not told the attorney is there.

¶ 15 This Court prefers to follow the path chosen by the Texas Court of Criminal Appeals and Connecticut Supreme Court. Before Burbine, the Texas Court of Criminal Appeals adopted a case-by-case test to determine whether a defendant’s right against self-incrimination under the Texas constitution was violated when he was not informed an attorney was present. Dunn v. State²⁹ rejected a per se rule and held courts should examine the totality of facts and circumstances in each case, including the defendant’s relation to the attorney, the extent of police knowledge of the crime, police conduct, the nature of the attorney’s request to police, and the defendant’s background, experience and conduct.³⁰ Dunn’s attorney, retained by his wife, telephoned and went to the station but was denied access, and police refused to tell Dunn his attorney was present. The Texas Court of Criminal Appeals concluded that under these circumstances Dunn’s waiver was not voluntary. The Court found the attorney “did everything short of kicking in the interrogation room door to gain access to appellant — at a time when appellant, if given a knowing and intelligent choice, might certainly have opted to remain silent.”³¹ These facts are similar to the case before this Court.

¶ 16 Dunn was followed in Roeder v. State.32 The lower appellate court compared Dunn with Burbine, noted Dunn was explicitly decided under state constitutional grounds, and concluded Dunn was binding even after Burbine. Roeder was arrested for a Texas crime by Colorado officers, without a warrant or probable cause, and held isolated for thirty hours until he confessed. During that time Houston officers instructed Colorado officers not to allow a public defender to speak to Roeder, even though Colorado law stated public defenders “shall be” allowed access to arrestees. The court found that the conduct of Texas officers showed an intent to gather as much information as possible while disregarding procedural safeguards. Roeder was a high school graduate with no prior offenses. Under these circumstances the court concluded Roeder’s waiver was not valid.

¶ 17 In Goodwin v. State³³ the Texas Court of Criminal Appeals refused to follow Dunn, finding that it was implicitly overruled by Burbine. The court determined that Dunn had been decided under both the Texas Constitution and the Fifth Amendment, and therefore was not based on an independent state ground. While Lewis cites the Fifth Amendment in its ruling, its discussion and reasoning are based entirely on state law. As the adequacy and independence of the state law are apparent from the face of the opinion, we conclude Lewis was decided on independent state grounds,³⁴ and remain persuaded by the reasoning in Dunn.

¶ 18 Connecticut adopted a similar test in State v. Stoddard..35 After his arrest, Stod-dard’s girlfriend hired an attorney who attempted four times to contact him. Each time police untruthfully told the attorney Stoddard was not at the station, and failed to inform him counsel had been retained and was trying to talk to him. The Stoddard Court determined that (like Oklahoma) Connecticut had a history of state cases recognizing the significance of the right to counsel. The opinion discusses “the ‘unique ability of counsel to protect the rights of a client undergoing, or confronting the imminent possibility of, interrogation.”³⁶ The opinion notes “counsel is uniquely prepared to assist a suspect in making an intelligent and knowing decision whether to speak or stand mute.”³⁷ The opinion concluded that police must promptly inform, a suspect of “timely efforts by counsel to render pertinent legal assistance.”³⁸ The Court described the limits of the burden on police:

A request is diligent if all necessary steps have been taken to notify the police clearly in the ordinary course of business, timely if made prior to the giving of incriminatory statements, and pertinent if counsel clearly indicates that access to the suspect is sought for the general purpose of providing legal assistance. In any case, counsel’s request must be in a form and at a time that affords the police a reasonable opportunity to respond. Second, lack of knowledge on the part of the interrogating officers is not dispositive because it is for the police, as an entity, to establish and maintain adequate procedures that will facilitate the reasonably prompt communication between an attorney and a suspect. Third, the prior existence of an attorney-client relationship is not relevant to the duty itself. While a suspect may decline the proffered services of a lawyer who unilaterally intervenes in the proceeding, we think it unwise to impose upon the police the responsibility of ascertaining the nature of the putative relationship between counsel and the suspect.³⁹

¶ 19 After determining the constitutional issue, the Stoddard Court discussed the per se rule adopted in cases such as Haynes. Noting that speculation about a defendant’s actions cuts both ways, Stoddard concluded:

We therefore decline to impose, by judicial fiat, a blanket rule of exclusion or admissibility. Reliance on the totality of the circumstances is consistent with existing rules for the evaluation of the validity of a waiver. The critical question is whether the information not conveyed by the police would likely have changed the defendant’s appraisal and understanding of the circumstances.⁴⁰

Using the balancing factors cited above, the Court determined that, under these facts, Stoddard probably would have responded to counsel’s offer of assistance and exercised his right to silence. Given the totality of the circumstances Stoddard’s waiver was not valid.

¶20 We believe this totality of the circumstances approach provides a fair, balanced method to determine whether a defendant’s state constitutional rights are violated. Our independent interpretation of Oklahoma constitutional provisions is not circumscribed by United States Supreme Court interpretation of similar federal provisions. We recognize we held in State v. Thomason⁴¹ that our provision against self-incrimination is not broader than that afforded by the Fifth Amendment. However, that case concerned use of handwriting exemplars and was a case of first impression on that issue. Our decision today rests on Lewis, state law independently decided before the federal provision was interpreted. The coincidence that the United States Supreme Court chose to interpret the federal provision differently does not change our state law precedent. “It is our right and duty to construe the Constitution and laws of this state, when not in conflict with federal authority, independently of the decisions of any other court.”⁴² Lewis does not conflict with any federal authority; no federal court has attempted to decide this issue on Oklahoma constitutional grounds and the United States Supreme Court expressly limited Burbine to federal constitutional issues. We are not persuaded that a restrictive interpretation of federal law should overcome our principled reasoning in Lewis. Like Texas, Connecticut, Oregon, Michigan, California, Delaware, Illinois, Florida, and New Jersey, we focus on whether a suspect can truly knowingly waive his rights without knowing an attorney, retained or appointed on his behalf, is there to talk to him. While of course a suspect may refuse a particular attorney’s assistance and validly waive his rights, common sense and fundamental fairness suggest the fact of the attorney’s presence is important information a suspect would use in determining whether to waive or invoke his rights. Where the totality of the circumstances reflect that a defendant’s decision would have been affected had he known an attorney was present, then admission of any statements made during questioning under those circumstances is error.⁴³

¶ 21 We now apply this totality of the circumstances test to this case. We look at Dennis’s relation to the attorney, the extent of police knowledge of the crime, police conduct, the nature of the attorney’s request, and Dennis’s own background, experience and conduct. Dennis had not met Weldon, although his live-in girlfriend hired counsel on his behalf after at least suggesting, in Dennis’s presence, she would do so. Police were fairly certain Dennis had committed the crime; there were no eyewitnesses or physical evidence to confirm this and witnesses placing Dennis at the scene were subject to impeachment. Officers prompted Dennis’s confession by telling him they “knew” he had owned and sold a .45 Glock pistol when they only suspected this was true. Weldon told officers he represented Dennis and repeatedly demanded to speak with him, and officers knew Weldon would advise Dennis to remain silent. The record does not clearly show that Weldon was present at the station when Dennis made his confession. If it did, our decision might be different.

¶ 22 We turn to Dennis’s experience and conduct. Dennis had previous experience with the criminal justice system and had talked to police twice in connection with this case. He had previously received Miranda warnings and waived his rights during this investigation. He talked with his girlfriend and mother before questioning began on May 1st, and told officers several times that he had nothing to hide and did not need an attorney. Dennis asks us to speculate that, had he known his attorney was present, his decision to forego counsel may very well have been different. We agree that officers finally convinced Dennis they knew he had something to hide. Dennis’s confession was the strongest piece of evidence against him, and Officer Bray testified he knew Weldon would advise Dennis not to talk if Dennis were allowed to see him. However, Dennis (1) knew his girlfriend had offered to call a lawyer; (2) was aware of his right to an attorney; (3) consistently said he did not need a lawyer; (4) at one time asked for a lawyer then retracted that request and continued talking to police; and (5) by his own testimony, asked whether his lawyer was outside the door but did not demand to see whoever was talking outside. Under these circumstances we conclude Dennis’s waiver of his rights to counsel and against self-incrimination was voluntary. The trial court did not err in failing to grant his motion to suppress his statements made on May 1, 1996.

Decision

¶ 23 The Judgment and Sentence of the District Court is AFFIRMED.

STRUBHAR, P.J.: concurs. JOHNSON, J.: specially concurs. LUMPKIN, V.P.J., and LILE, J., concur in part, dissent in part.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). Dennis suggests that because this statement was not challenged at trial, "it must be regarded as a request for counsel.” [Appellant's Br. at 9] He does not say why.

3 . Appellant's Br. at 11.

4 . Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Dennis suggests his case is similar to Williams v. State, 673 P.2d 164 (Okl.Cr.1983), where the defendant was in custody although he was questioned at his own house. There, the defendant reported the crime to police, waived his Miranda rights but then asked for an attorney, was subsequently questioned without reinitiating conversation, and was not free to leave. Williams turned on whether, under these ambiguous circumstances, the waiver was voluntary. Here we need not presume waiver from a silent record. The record clearly shows Dennis was informed of his rights, waived them, and reinitiated contact with officers after the only occasion on which he explicitly asked for an attorney.

5 . When Dennis asked for an attorney, Captain Bray stopped questioning but said Dennis would go to jail as a material witness. The State wastes several pages unnecessarily defending this statement. In fact Dennis was not arrested as a material witness; he was arrested for the crime of murder. Thus his "arrest” under the material witness statute was not only not "proper”, it did not happen. [State's Br. at 13] Dennis does not suggest that Captain Bray’s statement tainted or coerced Dennis’s subsequent reinitiation and confession. The record would not support such a claim.

6 . 1984 OK CR 93, 695 P.2d 528.

7 . 695 P.2d at 530. Oklahoma’s constitutional right to counsel is found at Okla. Const. art. II, § 20. Oklahoma’s provision against self-incrimination is found at Okla. Const. art. II, § 21.

8 . Lewis, 695 P.2d . at 531.

9 . Id. at 530.

10 . Id., quoting State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979).

11 . Id.

12 . Id. at 530-31.

13 . 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

14 . 475 U.S. at 428, 106 S.Ct. at 1144.

15 . 1998 OK CR 43, 963 P.2d 607.

16 . Hunt v. State, 687 So.2d 1154 (Miss.1996) (no mention of state or federal constitution, issue discussed in footnote); West v. Kentucky, 887 S.W.2d 338 (Ky.1994) (holding based on state rule of criminal procedure pre-dating and more expansive than Burbine ). The State cites a Mississippi case, Lee v. State, 631 So.2d 824 (Miss. 1994). This case is completely irrelevant, as no attorney was ever retained or attempted to contact police or the defendant; the issue there was whether a third party’s ambiguous statements could invoke a defendant's right to counsel. The State cites State v. Blanford, 306 N.W.2d 93 (Iowa 1981). This case, predating both Haynes and Burbine, finds "no basis” under Miranda for requiring police to tell a defendant an attorney has called on his behalf (apparently under the federal constitution). The opinion cites no authority for this conclusion. The State cites Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d 538 (1998). This case analogizes to Burbine and finds no violation of the state or federal constitution where police refused to tell a juvenile his mother was present in the station during his interrogation. In 1977 a plurality of the Pennsylvania Supreme Court determined officers must tell a suspect if counsel was available. Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977). This was decided under the Fifth Amendment to the United States Constitution, and the case would appear to be superseded by Burbine (in 1980 the same court adopted a totality of the circumstances rule on the issue, again relying on federal law, in Commonwealth v. Ri-gler, 488 Pa. 441, 412 A.2d 846 (1980)). The same situation appears to apply to State v. Hickman, 175 W.Va. 709, 338 S.E.2d 188 (1985) (cited by the State).

17 . Commonwealth v. Cryer, 426 Mass. 562, 689 N.E.2d 808 (1998) (finding no federal violation under Burbine; specifically does not decide whether state constitution violated since that issue was not presented under facts of case); State v. Gibson, 342 N.C. 142, 463 S.E.2d 193 (1995) (relying on Reese, below, for federal question and holding failure to inform juvenile of parents' and attorney's presence does not violate state juvenile rights statute); State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987) (no federal violation, no mention of state constitution); State v. Waggoner, 124 Idaho 716, 864 P.2d 162 (Idaho Ct.App.1993) (no federal violation, no mention of state constitution); Aultman v. State, 621 So.2d 353 (Ala.Crim. App.1992) (citing 1991 Alabama case, no mention of state constitution in either case); State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988), cert. denied, 489 U.S. 1042, 109 S.Ct. 1099, 103 L.Ed.2d 241 (1989) (no federal violation under Burbine, no mention of state constitution); State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1021 (1988) (no federal violation under Burbine, no mention of state constitution). In 1985, Georgia independently concluded that a defendant was not entitled under the Fifth Amendment to be informed when a retained attorney was present unless the defendant first asked for counsel. Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985). Also in 1985, Wyoming determined that, as a suspect had no right to consult with an attorney before agreeing to a breathalyzer test, police failure to tell him his attorney was available was not error. Wheeler v. State, 705 P.2d 861 (Wyo.1985).

18 . State v. Stackhouse, 90 Wash.App. 344, 957 P.2d 218 (1998) (relying on Earls, below); State v. Earls, 116 Wash.2d 364, 805 P.2d 211 (1991) (state and federal constitutions co-extensive, applies Burbine); Ajabu v. State, 693 N.E.2d 921 (Ind.1998) (no state law precedent for right to be informed a retained attorney is present, and state and federal doctrine the same); State v. Hanson, 136 Wis.2d 195, 401 N.W.2d 771 (1987) (Burbine is reasonable consideration of limits of Miranda, and state constitution identical with federal and interpreted same way); State v. Transan, 186 Ariz. 482, 924 P.2d 486 (Ariz.App. Div. 1 1996) (state constitution no broader than federal constitution, and state rules of criminal procedure not violated where defendant waived Miranda rights before attorney contacted police); People v. Page, 907 P.2d 624 (Colo.Ct.App.1995) (declining to adopt or impose state standards differing from the federal constitution); State v. Stephenson, 878 S.W.2d 530 (Tenn.1994) (following Wisconsin Supreme Court reasoning, holds defendant knowledge of particular attorney cannot affect ability to understand and, therefore, waive rights); Lodowski v. State, 307 Md. 233, 513 A.2d 299 (1986) (court does not find Burbine reasoning persuasive but must interpret similar state constitutional provisions as identical to federal interpretation; declines to deviate on a state level from Burdine rationale).

19 . People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996); State v. Simonsen, 319 Or. 510, 878 P.2d 409 (1994) (en banc) (explicitly reaffirming Haynes)', State v. Reed, 133 N.J. 237, 627 A.2d 630 (1993) (no state constitutional provision, but statutory and common-law right against self-incrimination broader than federal right); People v. Griggs, 152 Ill.2d 1, 178 Ill.Dec. 1, 604 N.E.2d 257 (1992) (narrow holding finds state constitutional error only when police fail to inform defendant who knows an attorney has been retained that the attorney is present at the station and asks to see defendant); Bryan v. State, 571 A.2d 170 (Del.1990); Haliburton v. State, 514 So.2d 1088 (FIa.1987); People v. Houston, 42 Cal.3d 595, 230 Cal.Rptr. 141, 724 P.2d 1166 (1986) [the State’s claim this has been overruled by constitutional amendment does not appear accurate]. In a pre-Burbine case, State v. Matthews, 408 So.2d 1274 (La.1982), the Louisiana Supreme Court held that the state constitution and statutes required officers to inform a defendant when a retained attorney was available during interrogation. In State v. Campbell, 673 So.2d 1061 (La.App. 3 Cir.1996), a Louisiana appellate court followed Burbine in determining that a defendant’s federal Sixth Amendment right was not implicated by police failure to inform a defendant his attorney was present; this opinion did not discuss the Fifth Amendment issue nor the state constitution, and does not mention Matthews, which appears to be good law. In 1968, New York adopted a strict rule, holding that under the state constitution, if an attorney is available to consult with a suspect, the suspect may waive his Miranda rights only after consulting with the attorney. People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968).

20 . Roeder v. State, 768 S.W.2d 745 (Tex.App. 1st Dist.1988); Dunn v. State, 696 S.W.2d 561 (Tex. Crim.App.1985), implicitly overmled by Goodwin v. State, 799 S.W.2d 719, 729 (Tex.Crim.App. 1990); State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988). Missouri adopted a totality of the circumstances test in a pre-Burbine case and has apparently not addressed the issue since. State v. Beck, 687 S.W.2d 155 (1985).

21 . ABA Standards for Criminal Justice 5-5.1, 5-7.1.

22 . 288 Or. 59, 602 P.2d 272 (1979).

23 . 602 P.2d at 278-79.

24 . 602 P.2d at 272.

25 . State v. Neal, 150 Or.App. 231, 945 P.2d 637 (1997); State v. Charboneau, 323 Or. 38, 913 P.2d 308 (1996) (en banc); State v. Simonsen, 319 Or. 510, 878 P.2d 409 (1994) (en banc); State v. Isom, 306 Or. 587, 761 P.2d 524 (1988).

26 . Charboneau, 913 P.2d at 318-19.

27 . Hanson, 401 N.W.2d at 778.

28 . Tilley, 963 P.2d at 614 (citation omitted).

29 . 696 S.W.2d at 569.

30 . Id. at 570.

31 . Id. at 569.

32 . 768 S.W.2d at 753-55.

33 . 799 S.W.2d 719, 729 (Tex.Crim.App.1990).

34 . Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). Lewis describes the issue as one of first impression in our jurisdiction and cites to the Oklahoma constitution at the beginning and end of the opinion. It also mentions the federal constitutional provisions in its closing sentence. Michigan v. Long noted that if an independent state law ground was not "clear from the face of the opinion” one should assume the state court reached the decision it expected the federal law required. 463 U.S. at 1040-41, 103 S.Ct. at 3476. We conclude Lewis was decided on independent state grounds. First, ample independent state law grounds — the repeated reference to the Oklahoma Constitution — appear in the opinion. Second, the opinion cites to cases from other states relying solely on state laws. Third, the opinion notes the jurisdictional split nationwide; the Court could not have assumed the federal courts would agree, and the language explicitly states the decision is this Court’s interpretation regardless of other courts’ differing interpretations. Lewis did not explicitly say the opinion rested solely on Oklahoma law, but the factors above certainly support that interpretation. This finding is bolstered by the brief ruling in Tilley, where we adopted Burbine to resolve a state law question and cited Lewis as precedent for the state law issue.

35 . 206 Conn. 157, 537 A.2d 446, 452 (1988).

36 . Id. at 452 (citations omitted).

37 . Id. (citations omitted).

³⁸

39 . Id. at 454 (citations omitted).

40 . Id. at 456 (citations omitted).

41 . 1975 OK CR 148, 538 P.2d 1080, 1086; see also Tilley, 963 P.2d at 614.

42 . Scribner v. State, 9 Okl.Cr.465, 132 P. 933, 938.

43 . Our adoption of the totality of the circumstances test also comports with our settled law applying a totality of the circumstances test to the waiver of right to counsel. See, e.g., Le v. State, 1997 OK CR 55, 947 P.2d 535, 542, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).