James Thomas Cahill v. Ruth Rushen, Director, California Department of Corrections

678 F.2d 791, 1982 U.S. App. LEXIS 18790

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 2, 1982
• Docket: 81-4009
• Status: Published

Opinions

SCHROEDER, Circuit Judge:

Appellee James Cahill was convicted of first degree murder in California state court in February 1975, after a trial in which his confession to a police officer was admitted into evidence. After exhausting available state remedies, Cahill petitioned the court below for a writ of habeas corpus under 28 U.S.C. § 2254. The district court granted the writ on the ground that the State had interfered with Cahill’s sixth amendment right to counsel. Cahill v. Rushen, 501 F.Supp. 1219 (E.D.Cal.1980). We affirm because we conclude that the confession was “deliberately elicited from him after he had been indicted and in the absence of his counsel.” Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964).

FACTS

In 1972 Cahill was arrested on suspicion of murder in connection with the death of an accomplice in a check forgery scheme. Beginning soon after his arrest, Cahill, without the assistance of counsel, was questioned by Captain Carter of the Shasta County Sheriff’s Office on at least four separate occasions. He was apprised of and waived his Miranda rights on the first three occasions; on the fourth, which took place the day the indictment was handed down, Miranda warnings were not given. Cahill expressed a desire for counsel during that interview, but when it proceeded, promised that after trial he would tell the captain all that had transpired at the scene of the crime.

The day after Cahill was convicted and sentenced, Captain Carter had him brought from the jail to the Sheriff’s Office. The captain did not offer Cahill an opportunity to consult with his attorney, did not give Miranda warnings, and did not inform Ca-hill’s attorney that the meeting was to take place. Cahill confessed to the crime, expressing his belief that a confession at that point could have no adverse consequences. It was this confession that was admitted into evidence at the subsequent trial, which resulted in the conviction challenged here.

Cahill’s first conviction was reversed on appeal because the principal witness was another accomplice who was present at the scene of the crime, and no accomplice instruction had been given to the jury.¹ Ca-hill was then rearraigned and retried under the same outstanding indictment. The trial court denied his motion to suppress the confession.

At the retrial, the accomplice again testified for the prosecution. In addition, Captain Carter testified regarding the confession. The jury returned a verdict of guilty. Cahill exhausted state remedies before filing this habeas petition. The State appeals from the district court’s judgment granting the writ.

DISCUSSION

The narrow question presented is whether the interview with Captain Carter violated Cahill’s right to counsel, thus rendering the confession inadmissible.

It is by now well settled that the sixth and fourteenth amendments bar the use at a subsequent trial of incriminating statements which the government has deliberately elicited from the defendant after indictment and in the absence of counsel. United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115 (1980); Rhode Island v. Innis, 446 U.S. 291, 300 n.4, 100 S.Ct. 1682, 1689 n.4, 64 L.Ed.2d 297 (1980); Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977); Massiah, supra, 377 U.S. at 207, 84 S.Ct. at 1203.

This case falls squarely within that rule. At the time of the confession Cahill had been arrested, arraigned, and indicted; thus, the right to counsel clearly had attached. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion). The confession was “deliberately elicited” by Captain Carter, as the state properly conceded at oral argument. Finally, it is undisputed that Cahill’s counsel was not only absent, but completely unaware that the meeting was to take place.

Thus the only question remaining for resolution is whether the analysis or the conclusion compelled by Massiah is in any way affected by the fact that when the interview took place, Cahill had been convicted and sentenced for the first time and the confession therefore was admitted not at the first trial but upon retrial.

The State and the dissent treat this case as though the question presented were whether the right to counsel “extends beyond” the first trial. We believe such an approach is fundamentally flawed. While the interview occurred after the first trial and before the first appeal, Cahill does not complain of anything that happened at that trial, nor is he asserting any right to counsel in connection with an appeal. He complains of the admission of his confession at the second trial. The question before us, then, is whether the interview with Captain Carter violated Cahill’s right to counsel with respect to the second trial. We therefore do not view the case in terms of an “extension” of the right to counsel after a first trial. Rather, we must focus on the need to preserve the protections of the sixth amendment in any trial in which conviction might result.

The right to counsel is vital to the fair administration of our adversary system of criminal justice. “Whatever else it may mean, the right to counsel . .. means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him —‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Brewer, supra, 430 U.S. at 398, 97 S.Ct. at 1239, quoting Kirby, supra, 406 U.S. at 689, 92 S.Ct. at 1882.

The right to counsel reaches anything necessary to assure a meaningful defense. United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967).

[I]n addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.... It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and ability of counsel to help avoid that prejudice.

Id. at 226-27, 87 S.Ct. at 1931-32 (emphasis added) (footnotes omitted); Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970) (plurality opinion).

When as here, a confrontation occurs pri- or to trial, the Supreme Court has sanctioned a retrospective evaluation. The issue is whether the “interview proved to be a ‘critical stage’ of the aggregate proceedings against [the defendant].” Estelle v. Smith, 451 U.S. 454, 471, 101 S.Ct. 1866, 1877, 68 L.Ed.2d 359 (1981) (emphasis added). When that test is applied here the answer must be in the affirmative.

The decision of the Supreme Court in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), supports af-firmance here, not reversal as contended by the State. That case held that a post-indictment photographic display for purposes of identification was not a “critical stage” of the prosecution such that defendant was entitled to the presence of counsel. The Court considered whether counsel could have been of much assistance to the defendant at the display and concluded he could not, contrasting the situation in Massiah, where “counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution.” Id. at 312, 93 S.Ct. at 2575.² This situation is like Massi-ah, not Ash. We must look to the function of counsel and the role to be played at the event in question. As the Supreme Court has stated, the sixth amendment requires that counsel “be provided to prevent the defendant himself from falling into traps . . . . ” Id. at 316-17, 93 S.Ct. at 2577, quoting United States v. Bennett, 409 F.2d 888, 899-900 (2d Cir. 1969). Cahill fell into a trap. Even a brief consultation with his attorney would have corrected Cahill’s erroneous impression that a confession at that point could have no adverse consequences.

The State nevertheless argues that the right to counsel which had attached at the time of indictment was cut off by the first conviction and sentencing,³ and was not resurrected until Cahill had been rearraigned. Under the State’s theory there were in effect two separate prosecutions, and this interrogation occurred after the first had ended but before the second had begun. This mechanical view has no sound basis. We point out by way of analogy that under double jeopardy analysis, a second trial is viewed as a continuation of the original proceeding.⁴ At the time of the interview Cahill’s conviction was not yet final, as subsequent developments demonstrated. He had been indicted and continued in custody. There is no justification for the creation of a temporal hiatus in the right to counsel. Indeed, Cahill’s promise to tell all had been evoked by Captain Carter at the time of indictment, so the police conduct in eliciting the confession actually began well before the first trial.

The danger in this case, which the sixth and fourteenth amendments guard against, is that governmental overreaching will render any subsequent trial a mere formality. As the district court recognized, if the right to the assistance of counsel evaporates upon conviction or sentencing, police behavior of this sort would make it pointless to pursue an appeal, a major goal of which is “a second trial uncontaminated by constitutional or other reversible error.” Cahill, supra, 501 F.Supp. at 1223. The fact that he had already been convicted and sentenced when the confession was elicited, and that the confession was introduced not at the first trial but upon retrial after reversal of the first conviction, is thus constitutionally irrelevant. The State cites no authority whatever for the proposition that conduct constitutionally impermissible prior to a first trial is somehow rendered constitutionally permissible when it occurs prior to a retrial. Such a rule would undercut the sixth amendment right to counsel.

We emphasize the narrowness of our holding. When as here defendant’s right to counsel has attached, any incriminating statements deliberately elicited by the State without at least affording defendant the opportunity to consult with counsel, must be excluded at any subsequent trial on the charges for which defendant is then under indictment.

The record before us leaves no room for doubt that Cahill was prejudiced by the State’s use of his confession at trial. The first conviction was reversed because the jury had not been admonished to consider potential bias on the part of the State’s principal witness. At the second trial, the jury was presented with the testimony of a police officer that Cahill had confessed to the murder. Without the latter testimony, we cannot say whether Cahill would have been convicted by a properly instructed jury.

The State argues that Cahill waived his sixth amendment rights when at the pretrial conversation with Captain Carter he promised to “tell all” after the trial was over. The question of waiver is not one of fact but of federal constitutional law. “[I]t was incumbent upon the State to prove 'an intentional relinquishment or abandonment of a known right or privilege.’ ... [T]he right to counsel does not depend upon a request by the defendant, . . . and . . . courts indulge in every reasonable presumption against waiver . . . . ” Brewer, supra, 430 U.S. at 404, 97 S.Ct. at 1242, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). “[T]o be valid such waiver must be made with an apprehension of ... all ... facts essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948).

We agree with the district court that there is no evidence to suggest that Cahill was ever informed or otherwise aware of his right to the assistance of counsel during the interview in question. As observed by the district court, his misapprehension of the possible consequences “shows the very need for counsel that Massiah seeks to protect.” 501 F.Supp. at 1230. The State has thus failed to meet its burden of establishing a waiver by Cahill of his sixth amendment rights. The post-trial confession was used against him in violation of his right to the assistance of counsel.

For the reasons stated in this opinion, the judgment of the district court is affirmed.

1 . People v. Cahill, 3 Crim. 6850 (Oct. 29, 1974) (unpublished opinion). The appellate court relied on People v. Gordon, 10 Cal.3d 460, 110 Cal.Rptr. 906, 516 P.2d 298 (1973), in which the state Supreme Court held that when the evidence suggests that the crime may have been committed by either the witness or the defendant, but not necessarily by both, the jury must be given an accomplice instruction.

2 . Unlike the post-indictment photographic display at issue in Ash, the practice used by the State here easily lends itself to abuse. This is particularly troublesome in view of one of the principal aims of the sixth amendment, which is to protect the defendant from overreaching. Second, of course, this practice may often greatly prejudice a defendant who could otherwise gain an acquittal upon retrial. Third, if not restricted, this practice would become standard operating procedure for every police department; confessions extracted immediately upon conviction would effectively obviate the necessity for retrials should defendants succeed in obtaining reversals of their initial convictions.

3 . The Supreme Court has expressly rejected the argument that fifth amendment rights cease at the time of conviction. Estelle v. Smith, supra, 451 U.S. at 461-63, 101 S.Ct. at 1872-73.

4 . Kepner v. U. S., 195 U.S. 100, 134, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904) (Holmes, J., dissenting), cited with approval in Price v. Georgia, 398 U.S. 323, 327, 90 S.Ct. 1757, 1760, 26 L.Ed.2d 300 (1970). While it is true that this is not the only proper analytical basis for allowing retrials over double jeopardy objections, see Burks v. United States, 437 U.S. 1, 15 & n.9, 98 S.Ct. 2141, 2149 & n.9, 57 L.Ed.2d 1 (1978), its utility is widely accepted in double jeopardy analysis. See, e.g., Note, Constitutional Law— United States v. DiFrancesco: “Continuing Jeopardy” — An Old Concept Gains New Life, 60 N.Car.L.Rev. 425 (1982).