State v. Stewart

765 P.2d 1320, 53 Wash. App. 150, 1989 Wash. App. LEXIS 1

• Court: Court of Appeals of Washington
• Decided: January 3, 1989
• Docket: 9696-0-II
• Status: Published

Opinions

Petrich, J.

Devin R. Stewart appeals a judgment on a jury verdict finding him guilty of six counts of burglary in the second degree. The issues before us are whether Stewart's Fifth Amendment right against compelled self-incrimination and his Sixth Amendment right to counsel were abridged when, after requesting the appointment of counsel at an arraignment on an unrelated charge and while he remained in continuous custody, the police interrogated him and obtained incriminating statements which led to the charges in the instant case.¹ We hold that Stewart's Sixth Amendment right to counsel was not violated, but that the Fifth Amendment right against compelled self-incrimination as guaranteed by the Fourteenth Amendment was abridged when he was subjected to custodial interrogation without the advice or assistance of counsel while in continuous custody after having requested appointment of counsel when formally charged with unrelated offenses. Accordingly, we reverse the convictions as to counts 1, 2 and 3 and affirm counts 4, 5 and 6.

Devin Stewart was charged by information dated November 19, 1985, with six counts of second degree burglary. Counts 1-3 related to residential burglaries in Bre-merton, Washington. Counts 4-6 described burglaries of three mobile homes located near Stavis Bay in Kitsap County. The burglaries allegedly occurred between January 22 and April 19, 1985.

On April 30, 1985, Stewart was arrested by the Bremer-ton Police Department on an unrelated robbery charge. After being advised of his Miranda rights, Stewart was interrogated by Detective Del English of the Bremerton Police Department. Stewart waived his rights and discussed his participation in the Stavis Bay burglaries (counts 4-6) with the detective. Stewart was transferred to the Kitsap County Jail that evening. The following day, May 1, Stewart was arraigned on the robbery charge. At the arraignment, an attorney was appointed for him at his request.² Shortly thereafter, prior to consulting his attorney or being released from custody, Stewart was interviewed by Deputies Wright and Fuller of the Kitsap County Sheriff's Office. The deputies read Stewart his Miranda rights, and he indicated that he understood them and consented to speak with the deputies. During this interview, Stewart implicated himself in all six burglary counts. Stewart was arraigned on the burglary charges on November 25, 1985.

On appeal, Stewart argues that his convictions should be reversed because they were based on statements obtained in violation of his right to counsel under the fifth and sixth amendments to the United States Constitution.

I

Sixth Amendment

The Sixth Amendment right to counsel arises from the fact that a suspect has been formally charged with a crime and is thus "facing a state apparatus that has been geared up to prosecute him." Arizona v. Roberson,_U.S. _, 100 L. Ed. 2d 704, 716, 108 S. Ct. 2093 (1988). As such, the Sixth Amendment right attaches only when formal judicial criminal proceedings have been initiated against a defendant. State v. Dictado, 102 Wn.2d 277, 294, 687 P.2d 172 (1984). Stewart's Sixth Amendment right to counsel was not violated in this case. At the time of his arraignment on the robbery case, formal criminal proceedings had not been initiated in the burglary charges. Accordingly, Stewart's Sixth Amendment right had not yet attached when he was interrogated by Deputies Wright and Fuller.

II

Fifth Amendment Right to Counsel

The Fifth Amendment right against self-incrimination requires that defendants be accorded the assistance of an attorney during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 467, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). This right is upheld through the "prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges." Arizona v. Roberson, 100 L. Ed. 2d at 716. As established by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), the Fifth Amendment requires that once an accused in a custodial situation has expressed a desire for assistance of counsel, he is not subject to further interrogation unless he consults with counsel or the accused initiates further communication with police.

In the usual criminal prosecution, the defendant invokes his Fifth Amendment right by requesting counsel at the time he is taken into custody or at a later interrogation occurring while the defendant remains in custody. In the instant case, we must determine two issues: (1) whether a request for counsel at an arraignment on a charge invokes a Fifth Amendment right to counsel, and (2) whether the protection extends to custodial interrogations pertaining to unrelated cases.

A

Invocation of Fifth Amendment Right

The Seventh Circuit Court of Appeals addressed an identical issue in United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987). In Espinoza, the defendant was arrested on a weapons charge. He was represented by counsel at his arraignment on that charge. Four days later, while still in custody, he was interviewed about an unrelated murder. After waiving his Miranda rights, Espinoza confessed to the murder. The murder conviction was the subject of the Seventh Circuit case. The court held that although Espinoza had no Sixth Amendment right to counsel during the interrogation since the State had not initiated criminal proceedings on the murder charge, his Fifth Amendment right to counsel was invoked. The court applied the approach used in Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), that a broad interpretation must be used when assessing invocations of the right to counsel. Under this approach, the Espinoza court stated that absent evidence to the contrary, individuals who request counsel at an arraignment are invoking both their Fifth and Sixth Amendment rights to counsel. The court quoted from Michigan v. Jackson, at 633 n.7 that "an accused [who] requests an attorney [at arraignment] . . . does not know which constitutional right he is invoking". Espinoza, 813 F.2d at 123. The Espinoza court then went on to state: "Because an individual who does not understand his or her rights cannot validly waive them, see Moran v. Burbine, [475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, 1141 (1986)] we are required to presume that an individual who requests counsel at his or her arraignment is asserting both a Sixth Amendment and a Fifth Amendment right, even if the individual does not 'articulate exactly why or for what purposes he is seeking counsel.' Jackson, 106 S.Ct. at 1409 n. 7." Espinoza, 813 F.2d at 123.

We are convinced by the logic of Espinoza and Jackson. Accordingly, we find that Stewart invoked both a Fifth Amendment and Sixth Amendment right to counsel at his arraignment on the robbery charge.

B

Scope of the Invocation of Fifth Amendment Right

Having previously determined that the Sixth Amendment right invoked does not extend to the burglary charges, we are left to decide whether the invocation of a Fifth Amendment right to counsel extends to custodial interrogation on unrelated charges. This question was answered affirmatively by Espinoza and, more recently, by the United States Supreme Court in Arizona v. Roberson, supra. In Roberson, the Court held that the Edwards rule extends to custodial interrogations on unrelated charges. The Court stated:

As a matter of law, the presumption raised by a suspect's request for counsel—that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance—does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.

Roberson, 100 L. Ed. 2d at 715. The Edwards rule serves to provide "clear and unequivocal" guidelines to the law enforcement profession. It plainly requires that "after a person in custody has expressed his desire to deal with the police only through counsel, he 'is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."' Roberson, 100 L. Ed. 2d at 714, quoting Edwards v. Arizona, 451 U.S. at 484-85.

The court in Espinoza similarly held that Espinoza's Fifth Amendment right against self-incrimination was violated when he was interrogated without the presence or assistance of counsel on the unrelated murder charge after remaining in continuous custody. Espinoza, 813 F.2d at 125. We are bound by the holding of Arizona v. Roberson, supra, which defined the scope of Stewart's rights under the Fifth Amendment. United States Supreme Court decisions establish the minimum rights to be accorded a defendant as required by the United States Constitution.³ State v. Hehman, 90 Wn.2d 45, 49, 578 P.2d 527 (1978). Clearly, Stewart's Fifth Amendment right to counsel as a means of protecting his right against compelled self-incrimination was violated when he requested counsel at his arraignment on the robbery charge, remained in continuous custody, and was subsequently interrogated on the burglary charges. The record establishes that Stewart made incriminating statements which led to his conviction on counts 4-6 of his information, the Stavis Bay burglaries, during his interview with Detective English of the Bremerton Police Department. These statements were made prior to his arraignment on the robbery charge and after he had been advised of, and voluntarily waived, his Miranda rights. The evidence of his incriminating statements as to these latter counts from the second interview was merely cumulative and a reaffirmation of what he had already admitted. Under these circumstances, we are satisfied that the erroneous admission of the statements from the latter interview was harmless beyond a reasonable doubt. State v. Wheeler, 108 Wn.2d 230, 239, 737 P.2d 1005 (1987); State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).

We hold that Stewart's Fifth Amendment right against compelled self-incrimination was violated as to counts 1-3. According to the rule of Edwards v. Arizona, súpra, as extended in Arizona v. Roberson, supra, the Kitsap County Sheriff's deputies acted improperly when they interrogated Stewart after he had requested counsel, thereby raising the presumption that he was unable to deal with the pressures of custodial interrogation without legal assistance. The fact that the deputies may not have been aware of Stewart's request for counsel is of no significance as the police have the burden of determining whether a suspect has requested counsel. Roberson, 100 L. Ed. 2d at 717.

We reverse Stewart's convictions on counts 1, 2, and 3 and affirm on counts 4, 5, and 6.

Worswick, J., concurs.

1 Although Stewart's assignment of error mentions only a Sixth Amendment violation, he also discusses the Fifth Amendment right to counsel in his brief. We review the Fifth Amendment argument as it is clearly disclosed in an associated issue pertaining to the assignment of error. RAP 10.3(g).

2 The findings of fact pertaining to Stewart's request for counsel at the robbery arraignment are not part of the record before us. However, appellant has included these findings of fact in an appendix to his brief. The State does not object to or question the fact that Stewart actually requested counsel at that arraignment.

3 In so holding, we disagree with the Division One case, State v. Cornethan, 38 Wn. App. 231, 684 P.2d 1355 (1984), decided before Roberson, which held that Edwards v. Arizona, supra, is not controlling when a defendant in custody is interrogated on unrelated charges.