State v. Mendes

210 A.2d 50, 99 R.I. 606, 1965 R.I. LEXIS 491

• Court: Supreme Court of Rhode Island
• Decided: May 10, 1965
• Docket: Ex. No. 10590
• Status: Published

Opinions

Paolino, J.

This is an indictment charging the defendant -with driving so as to- endanger, death resulting, in violation of G. L. 1956, §31-27-1. It was tried before a justice of the superior court sitting with a jury an-d resulted in a verdict of guilty. The -case is here on the- defendant’s bill of exceptions to the-.denial of his motion -for a new trial and to certain rulings during the trial. Additionally, the parties have briefed and argued certain constitutional questions which were not raised in the superior court, namely, the effect of our recent decision in State v. Dufour, 99 R. I. 120, 206 A.2d 82, on the admissibility of the defendant’s incriminating statement. We hold that Dufour applies here.

The instant case was tried in -the superior court in May 1963. Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. , was decided on June 22, 1964. People v. Dorado, 40 Cal. Rptr. 264, 394 P.2d 952, was decided on August 31, 1964. A rehearing was granted in Dorado and the decision therein was filed on January 29, 1965. See People v. Dorado, 42 Cal. Rptr. 169, 398 P.2d 361. The decision in State v. Dufour, supra, filed January 8, 1965, contains the following holdings:

“In Escobedo■ the defendant requested the assistance of counsel and was refused. In this respect that case differs from the case at bar but in the course of its opinion the supreme court made it clear, we think, that the defendant in such circumstances must not only have been advised of his right to assistance of counsel when requested but he must also have been warned of his right to remain silent. ‘We hold, therefore/ the court said, ‘that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to' consult with his lawyer, and the police have not effectively warned him of his 'absolute constitutional right to remain silent, the accused -has been denied “the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as “made obligatory upon the States by the Fourteenth Amendment,” Gideon v. Wainwright, 372 U.S. [335], at 342, 83 S. Ct. [792], at 795 [9 L.Ed.2d 799] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.’

“Our view of the thrust of Escobedo has recently been applied by the California supreme court in People v. Dorado, 40 Cal. Rptr. 264, 394 P.2d 952. In that case as in our case the defendant failed to request counsel but the court was of the opinion that this did not distinguish the case from Escobedo• saying: We find no strength in an artificial requirement that a defendant must specifically request counsel; the test must be a substantive one: Whether or not the point of necessary protection for guidance of counsel has been reached.’

“In Escobedo the point of such necessary protection was reached in the opinion of the supreme court when the investigation began to focus on a particular suspect then in police custody. This was unquestionably the situation of defendant in the case at bar. For this reason his confession was inadmissible and should have been suppressed.”

The state contends that the case at bar is not governed by Dufour because the cases are materially different factually. It points out that in Dufour the confession was held invalid in connection with the defendant’s motion to suppress the evidence, whereas in this case no objection was made by defense counsel to the voluntariness and introduction of defendant’s statement. The state further contends that since defendant made no issue of the manner of circumstances in which defendant’s statement was obtained, there was a waiver by counsel of any irregularities which existed when the statement was obtained by the police. Finally, the state argues that in any event, the introduction of defendant’s statement, if error, constituted harmless error because of other overwhelming evidence in the record pointing to defendant’s guilt.

On the contrary defendant argues that Escobedo, as applied by the holding in Dufour, is applicable in this case. He contends that the failure of the police to advise him of his rights to remain silent and to have assistance of counsel at the time when the investigation became accusatory violated basic constitutional rights of due process and that his statement was not admissible, even though not objected to by his counsel.

In the posture in which this case is now presented, it is apparent that it must be decided in the light of events which occurred after the fatal accident and after defendant’s arrest. For this reason the details of the accident need be summarzied only briefly. We shall refer chiefly to evidence surrounding defendant’s statement to the police.

Shortly before 10 p.m. on August 18, 1962 defendant was operating his automobile in a northerly direction on Paw-tucket avenue in the city of East Providence. At approximately the same time and place Suzanne M. Magsamen was operating a motor vehicle in a southerly direction along the same highway. The vehicles collided with each other causing fatal injuries to Suzanne M. Magsamen. She was pronounced dead upon arrival at the hospital immediately after the accident.

When the police arrived at the scene of the accident, defendant was still behind the steering wheel of his car. Upon observing that he had been drinking, he was taken by the police to the East Providence police station. Shortly after his arrival there he was examined by a police surgeon and pronounced under the influence of intoxicating liquor. He was informed of his right under §31-27-3 to be examined by a physician of 'his own choice. See State v. Lefebvre, 78 R. I. 259. He was also- given the opportunity to use the telephone. It appears from the evidence that because of his -condition no- further -questioning took place that night. He was kept in custody at the police station all night.

On the following morning, August 19, 1962, after being told that the operator of the other auto had died, defendant was interrogated by members of the East Providence police department about the accident. The questions and his answers, which contained incriminating matter, were reduced to a statement in writing and signed by him in the presence of three police officers who signed as witnesses. He was charged with two separate offenses, driving under the influence of intoxicating liquor in violation of §31-27-2, and driving so as to endanger, death resulting, hi violation of §31-27-1. He- was subsequently indicted for the latter violation.

This case involves only the indictment. The §31-27-2 violation was -pending in the superior court at the time of the trial. The defendant did not testify in his own behalf and he presented no witnesses. Although there were no eyewitnesses the state presented an engineering sketch of the area and also numerous photographs taken at the scene of the accident showing the highway and the position of the -cars after the accident. In substance the state’s evidence indicated that defendant’s car had been seen operating in an erratic manner j-ust prior to the accident-; that-the weather was clear and the highway .was well illuminated; and that the actual impact occurred on the westerly side of the road, thus showing that -defendant had driven onto the path of decedent’s car on her side of the highway.

The statement was introduced in evidence in the superior court without objection. Indeed, defendant’s counsel expressly stated in open -court tha-t he had no objection to its introduction. No claim was -made then, and none is made now, that any coercion, intimidation, threats, or promises of any kind were made by the police to elicit the statement from defendant. The voluntariness of it has never been put in issue, either in the superior court or here. The uneontradict-ed evidence by the police is that before signing it defendant read it and in fact made corrections which appear thereon.

Notwithstanding the totality of circumstances showing absence of involuntariness, coercion, threats, promises, or intimidation, the question remains, did the failure of the police to advise defendant of his constitutional rights to remain silent and to assistance of counsel vitiate the statement -and render it inadmissible?

We summarize the essential facts. There is no evidence indicating that defendant sought or was denied counsel; nor is there any evidence or claim that he was advised of his basic rights to remain silent and to have the assistance of counsel when the general inquiry in this matter focused on him in an accusatory investigation while in custody of the police. With respect to the offense charged in this indictment, “the point of necessary protection for guidance of counsel” occurred when defendant learned of the death of the driver of the other car. On the morning of the interrogation in the police station, defendant 'had become the accused with respect to the §31-27-1 charge, and the purpose of the interrogation was to elicit incriminating information from him about the fatal accident.

We are now faced squarely with the question whether the doctrine of Escobedo should be applied, as was done in People v. Dorado, 40 Cal. Rptr. 264, 394 P.2d 952, and in the holding in State v. Dufour, supra, or whether it should be limited to its own facts and circumstances as was done in Mefford v. State, 235 Md. 497, 201 A.2d 824, and State v. Scanlon, 84 N. J. Super. 427, 202 A.2d 448.

We have carefully researched this problem and read with care the conflicting views of respectable authorities. Prom such research only one conclusion is certain, namely, that the search for truth and justice is the ultimate goal, because all recognize that when the rights of some are violated, the rights of all are endangered. In our judgment our holding and reasoning in Dufour will in the long run better serve the attainment of truth and the' administration of justice in accordance with basic rights guaranteed under our federal and state constitutions. In Carnley v. Cochran, 369 U. S. 506. 513, 82 S. Ct. 884, 889, the Supreme Court specifically ruled:

“* * * it is settled that where the assistance of counsel, is a constitutional requisite, .the right to- be furnished counsel does not depend on a request. In McNeal v. Culver, [365 U. S. 109, 5 L.Ed.2d 445, 81 S. Ct. 413] supra, the petitioner’s allegation that he had requested counsel was countered by a denial in the return that 'petitioner’s constitutional rights were violated by the court’s alleged refusal to appoint counsel in his behalf,’ and the State Supreme Court noted that the record was silent as to any request. We held that when the Constitution grants protection against criminal proceedings without the assistance of counsel, counsel must be furnished 'whether or not the accused requested the appointment of counsel. Uveges v. [Commonwealth] Pennsylvania, 335 U. S. 437, 441 [69 S. Ct. 184, 185, 93 L.Ed. 127].’”

We hold that defendant had a constitutional right to be advised of his right to remain silent and of his right to assistance. of counsel; that the failure of the police so to advise him violated his right to due process; and that the incriminating statement elicited by the police during the interrogation may not be used against him in a criminal trial unless there has been a valid waiver of his rights by defendant.

We inquire next whether defendant waived his constitutional rights in this case. In Johnson v. Zerbst, 304 U. S. 458, 464, waiver has been defined as ''an 'intentional relinquishment or abandonment of a known right or privilege.” In Moore v. State of Michigan, 355 U. S. 155, 161, the issue was whether there had been.a valid waiver of the petitioner’s right to counsel. The court there held that the- petitioner had the burden of showing by a fair preponderance of -the evidence that he did not intelligently and understandingly waive his right to counsel. And in Cole v. Langlois, 99 R. I. 138, 206 A.2d 216 at page 219, the court said this rule relative to burden of proof “has application ■ to any situation in - which the question is whether there has been an intelligent, voluntary waiver of some constitutional right.”

In this case we do not reach the question of proving waiver. There is no - evidence here, direct or otherwise, that defendant had knowledge of his rights to remain silent and to have the assistance of counsel. From a careful reading of the transcript it does not appear that defendant was aware of such constitutional rights nor advised-of them-by the police and in such circumstances a waiver cannot be shown. Indeed, the state'makes no claim to the contrary in its ibrief or oral argument. See People v. Dorado, 42 Cal. Rptr. 169, 398 P.2d 361, 370, 371. As the court said in Moore v. State of Michigan, supra, at page 161: “Where .the right to counsel is of such critical importance as to be an element of Due Process under the Fourteenth Amendment, a finding of waiver is not lightly to be made. Cf. Johnson v. Zerbst, 304 U. S. 458, 464; Glasser v. United States, 315 U. S. 60; 70; Von Moltke v. Gillies, 332 U. S. 708, 723.” We hold that there was no valid waiver.

There is no merit in the state’s contention that there was a valid waiver by his counsel’s express statement that he had no objection to its admission. There is nothing in the record indicating that defendant participated in his counsel’s decision in this matter. Absent such participation, defendant’s constitutional rights cannot be waived. See Fay v. Noia, 372 U. S. 391; see also Cole v. Langlois, supra.

The state further contends that the introduction of defendant’s statement,, if error, constituted harmless error in view of other overwhelming evidence pointing to defendant’s guilt. This, however, completely ignores the well-established principle that the admission of an invalid incriminating statement is never harmless error. See Lynumn v. State of Illinois, 372 U. S. 528. A reading of the transcript supports the state’s claim that there is evidence from which a jury could find defendant guilty apart from the tainted statement. But in the absence of special findings by the jury, there is no way of knowing precisely on what evidence the conviction is based. Nothing can cure the unlawful results flowing from the failure of the police to advise defendant of his constitutional rights to remain silent and to assistance of counsel. See State v. Dufour, supra.

This case was brought here by defendant’s bill of exceptions. In this court the parties raised certain jurisdictional questions which, because of their nature, we allowed them to brief and .argue even though they were not raised in the superior court and were not part of the record brought here by the bill of exceptions. Because defendant’s contentions have merit, we do not believe we should compel him to seek post-conviction relief, as he may under Fay v. Noia, supra. See concurring opinion of Mr. Justice Joslin in State v. Dufour, 99 R. I. 120, 206 A.2d 82, 88. The defendant has been denied due process and the conviction cannot stand. See State v. Kilday, 99 R. I. 209, 206 A.2d 537.

Nor is the case at bar similar to In Re Lopez, Cal., 42 Cal. Rptr. 188, 398 P.2d 380. wherein the court said at page 383: “* * * nor may Escobedo or Dorado- be applied to cases which have become final .prior to the date that the United States Supreme Court rendered the Escobedo- decision.” The case at bar, unlike the situation in In Re Lopez, is not final.

There is one very material difference factually between Dujour and the case at bar. In Dujour, once the unlawful confession and the tainted evidence were suppressed, there was no other evidence to support a conviction. For this reason we remitted the case to the superior court with directions to quash the indictment and discharge the defendant. But in the case at b'ar there is other evidence which, if believed, would support a conviction. In such circumstances there must be a new trial.

The verdict of guilty is quashed, and the case is remitted to the superior court for a new trial in accordance with this opinion.