Summary
In People v. Dorado (Aug. 1964), 61 A.C. 892, 40 Cal.Rptr. 264, 394 P.2d 952, and in People v. Anderson (decided the same day), 61 A.C. 903, 40 Cal.Rptr. 257, 394 P.2d 945, our Supreme Court asserted that once an investigation focuses on defendant any incriminating statements given by him during investigation by investigating officers become inadmissible if defendant was without counsel and the officers failed to advise defendant of his right to an attorney and his right to remain silent. Rehearing has been granted in each of these cases which are pending.
Summary of this case from People v. PerezOpinion
Page __
For Opinion on Rehearing, see 42 Cal.Rptr. 169, 398 P.2d 361.
McComb and Schauer, JJ., dissented.
Edward L. Cragen, San Francisco, under appointment by Supreme Court, for defendant and appellant.
Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.
TOBRINER, Justice.
Defendant appeals from a jury verdict finding him guilty of a violation of Penal Code, section 4500, which is a capital offense. The indictment charged defendant, a life-term inmate of San Quentin Prison, with malicious assault with a deadly weapon, which resulted in a fellow prisoner's death; section 4500 fixes the penalty for this crime at death. The court denied [394 P.2d 953] [40 Cal.Rptr. 265] defendant's motion for a new trial. Penal Code, section 1239, subdivision (b), provides for an automatic appeal.
We hold, in the light of recent decisions of the United States Surpeme Court, that, once the investigation focused on defendant, any incriminating statements given by defendant during interrogation by the investigating officers became inadmissible in the absence of counsel and by the failure of the officers to advise defendant of his right to an attorney and his right to remain silent. The admission into evidence of a confession obtained in such a manner requires reversal.
The facts of this case show the background and occasion for defendant's confession. According to prison officers, they discovered at about 8:00 a. m. on December 12, 1961, the body of one Nevarez in the lower yard behind the bleachers and near the industrial quonset huts at San Quentin Prison. About 20 minutes later medical personnel pronounced the victim dead upon arrival at the prison hospital. The nature of the chest wounds of the victim showed that they could have been inflicted by a small knife and that he probably had been physically restrained during the killing.
Correctional officers undertook an immediate investigation and discovered in a trashcan in a nearby restroom a blue denim jacket with the prison identification number cut out, the name 'Dorado' on the docket, a button missing, and bloodstains of Nevarez's blood type. In the same trashcan they found a melton jacket with the number removed and a sharpened kitchen knife with a taped handle. They found the button belonging to the blue denim jacket at the scene of the homicide. Officers discovered a second sharpened knife with a taped handle stained with blood of the victim's type in another trashcan
When the officers located defendant in his cell around 9:00 a. m. he was attired in his underwear; when they requested that he dress, he donned clean clothing. The officers found no worn clothing in his cell but did discover a roll of tape similar to that used to tape the knife handles. Under a stack of soiled clothing in a clothes hamper the officers located defendant's trousers, which were stained with the victim's blood type.
Captain Hocker, an official of San Quentin Prison, testified that later during the same morning the officers brought defendant to his office. When defendant was shown the jacket on which his name appeared, he made no comment, but wept upon being told by Captain Hocker that Nevarez was dead. Captain Hocker then requested Officer Glazier to take defendant to the hospital laboratory in order that a technician might remove and test some brown flecks on defendant's hands, which appeared to be dried blood. After defendant's return about an hour later, Mr. Midyett and some other members of the district attorney's office arrived.
Mr. Midyett and Captain Hocker testified that early in the afternoon upon interrogation defendant freely and voluntarily admitted the killing. Both testified, further, that on the following morning, December 13, at his cell in the adjustment center, defendant, in the presence of Mr. Midyett, freely and voluntarily gave a written statement. Defendant thereafter escorted Mr. Midyett and a prison officer over the route he had taken in the course of the criminal incident, discussing with them certain details of the crime. On December 15, after Jiminez had been apprehended on suspicion of complicity, a third interrogation of defendant took place, and on this occasion defendant implicated Jiminez as the accomplice who held Nevarez.
At the trial Captain Hocker testified that he not only initially interrogated the defendant but had been present during the major part of defendant's interrogation by members of the district attorney's office. He further testified that he did not at any time inform defendant of his right to counsel or of his right to remain silent. He did not hear anyone else so inform the defendant; [394 P.2d 954] [40 Cal.Rptr. 266] Mr. Midyett testified to the same effect.
We must determine whether the confession, assuming its voluntariness, was properly admitted into evidence in view of two recent decisions of the United States Supreme Court: Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, and Escobedo v. Illinois (1964) U.S., 84 S.Ct. 1758. These cases were decided against the backdrop of Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, which had held that the Sixth Amendment, through the Fourteenth Amendment, constitutionally guaranteed to those accused of crime the right to counsel.
This court has recognized the importance of the effective aid of counsel to those accused of crime. In People v. Douglas (1964) 61 A.C. 472, 476, 38 Cal.Rptr. 884, 392 P.2d 694, 966, Justice Peters pointed out, 'The right to trial counsel is guaranteed by the Sixth Amendment, which is applicable in criminal trials in the state courts (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), (93 A.L.R.2d 733), and by section 13 of article I of the California Constitution. 'The right to counsel is a fundamental constitutional right, which has been carefully guarded by the courts of this state.' (In re James, 38 Cal.2d 302, 310, 240 P.2d 596, 600). Meaningfully applied, the right to counsel includes the opportunity to receive 'effective aid in the preparation and trial of the case.''
In Massiah v. United States, supra, a trial court admitted into evidence against defendant certain of his own incriminating statements. Defendant, who had been indicted for violation of the federal narcotics laws, had retained counsel. After defendant's release on bail, a federal agent arranged with one Colson, who had been jointly indicted with defendant, for the installation in Colson's car of a radio transmitter which would enable the agent, through a receiving device in a car parked down the street, to listen to Colson's conversation with defendant. The statements of defendant in the course of this conversation came before the jury through the agent's testimony. Reversing the conviction, the Supreme Court held that defendant suffered a denial of the basic protections of the Sixth Amendment 'when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of counsel.' (377 U.S. 201, at p. 206, 84 S.Ct. 1199, at p. 1203.)
In Escobedo v. Illinois (1964) 84 S.Ct. 1758, the Supreme Court reversed a state conviction because the court admitted into evidence defendant's incriminating statements voiced during defendant's pre-indictment interrogations in the absence of counsel. In this case defendant, 'a 22-year-old of Mexican extraction, with no record of previous experience with the police,' (84 S.Ct. at p. 1760) was arrested and interrogated about the fatal shooting of his brother-in-law. Defendant retained a lawyer and obtained release by habeas corpus. Several days later Benedict Di Gerlando 'who was then in police custody and who was later indicted for the murder along with petitioner, (defendant) told the police that petitioner had fired the fatal shots.' (84 S.Ct. at p. 1759.) The police took defendant and his sister, the widow of the victim, to police headquarters, informing defendant that Di Gerlando had named him as the prepetrator of the shooting. The officers urged him to admit to the crime; he replied, 'I am sorry but I would like to have advice from my lawyer.' (84 S.Ct. at p. 1759.) During the course of further interrogation defendant repeatedly asked to speak to his lawyer, and the lawyer, in turn, attempted to contact defendant, but neither effort succeeded.
Ultimately confronted by Di Gerlando, defendant said, 'I didn't shoot Manuel, you did it,' and thus admitted to some knowledge of the crime. (84 S.Ct. at p. 1761.) Later, he further implicated himself and finally gave a statement to the state's attorney. The latter 'testified that he did not advise petitioner (defendant) of his [394 P.2d 955] [40 Cal.Rptr. 267] constitutional rights, and it is undisputed that no one during the course of the interrogation so advised him.' (Ibid.)
The Supreme Court pointed out that 'Petitioner, a layman, was undoubtedly unaware that under Illinois law an admission of 'mere' complicity in the murder plot was legally as damaging as an admission of firing of the fatal shots. Escobedo v. Illinois, 28 Ill.2d 41, 190 N.E.2d 825. The 'guiding hand of counsel' was essential to advise petitioner of his rights in this delicate situation. * * *' (84 S.Ct. at p. 1762.) To posit the right to counsel under these circumstances upon whether 'the authorities had secured a formal indictment' would be to 'exalt form over substance.' The rule urged by the state 'would make the trial no more than an appeal from the interrogation.' (84 S.Ct. at p. 1763.) History has taught 'that a system of criminal law enforcement which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. * * * ' (84 S.Ct. at p. 1764.)
The Court concluded: 'We hold, therefore, 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., at 342, 83 S.Ct. 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.' (84 S.Ct. at p. 1765.)
In essence the United States Supreme Court has chosen between two opposing clusters of convictions delineated by Justice Frankfurter in Culombe v. Connecticut (1961) 367 U.S. 568, 578-587, 81 S.Ct. 1860, 6 L.Ed.2d 1037. On the one hand lies the assertion that questioning subjects is indispensable to effective police work since many criminals cannot be convicted except by evidence obtained through their admissions. '(I)f it is once admitted that questioning of suspects is permissible, whatever reasonable means are needed to make the questioning effective must also be conceded to the police. Often prolongation of the interrogation period will be essential, so that a suspect's story can be checked. * * * Often the place of questioning will have to be a police intrerrogation room * * *. Legal counsel for the suspect will generally prove a thorough obstruction to the investigation. Indeed, even to inform the suspect of his legal right to keep silent will prove an obstruction.' (367 U.S. at pp. 579-580, 81 S.Ct. 1680, 6 L.Ed. 1037.)
On the other hand lies the assumption stated by Justice Frankfurther in Watts v. Indiana (1949) 338 U.S. 49, 54, 69 S.Ct. 1347, 93 L.Ed. 1801, and Culombe v. Connecticut, supra, that 'Ours is the accusatorial as opposed to the inquisitorial system. * * * Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation. 'The law will not suffer a prisoner to be made the deluded instrument of his own conviction. '' (Watts v. Indiana (1949) 338 U.S. 49, 54, 69 S.Ct. 1347, 93 L.Ed. 1801).
The Supreme Court in Escobedo has decided that, once suspicion has focused on the accused and the purpose of interrogating him is to obtain incriminating statements, the latter considerations outweigh the former. The Court declared: 'It is argued that if the right to counsel is afforded prior to indictment, the number of [394 P.2d 956] [40 Cal.Rptr. 268] confessions obtained by the police will diminish significantly, because most confessions are obtained during the period between arrest and indictment, and 'any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.' * * * This argument, of course, cuts two ways. The fact that many confessions are obtained during this period points up its critical nature as a 'stage when legal aid and advice' are surely needed. * * *'
See Note, An Historial Argument for the Right to Counsel During Police Interrogations (1963) 73 Yale L.J. 1000, 1042-1054; Kamisar, 'What Is An 'Involuntary' Confession? Some Comments on Inbau and Reid's Criminal Interrogation and Confessions (1963) 17 Rutgers L.Rev. 728, 745; Broeder, Wong Sun a Study in Faith and Hope (1963) 42 Neb.L.Rev. 483, 594-613. Justice Douglas, dissenting in Crooker v. California (1958) 357 U.S. 433, 443-445, 78 S.Ct. 1287, 1294-1295, 2 L.Ed.2d 1448, pointed out an additional justification for prohibiting secret interrogations by the police. He explained, 'We should not lower the barriers and deny the accused any procedural safeguard against coercive police practices. The trial of the issue of coercion is seldom helpful. Law officers usually testify one way, the accused another. The citizen who has been the victim of these secret inquisitions has little chance to prove coercion. The mischief and abuse of the third degree will continue as long as the accused can be denied the right to counsel at this most critical period of his ordeal. For what takes place in the secret confines of the police station may be more critical than what takes place at the trial.'
The facts in the instant case demonstrate that the investigation had focused on defendant at the time of his interrogation. The officers had previously found near the scene of the crime defendant's jacket stained with blood of decedent's blood type, discovered at the place of the crime a button missing from defendant's jacket, and obtained from his cell defendant's trousers stained with the same type blood as decedent's. Furthermore, the members of the district attorney's office and Captain Hocker engaged in a long interrogation which went beyond mere investigation and which lent 'itself to eliciting incriminating statements.'
In the course of the interrogation the agents of the state did not effectively warn defendant of his constitutional rights. On the other hand, defendant did not request an attorney.
The question presented, then, is whether this failure of the accused to request counsel distinguishes the instant case from Escobedo. We conclude that it does not; that the constitutional right to counsel precludes the use of incriminating statements elicited by the police during an accusatory investigation unless that right is intelligently waived; that no waiver can be presumed if the investigating officers do not inform the suspect of his right to counsel or his right to remain silent.
We reach this conclusion because (1) the Supreme Court ruled in Massiah that assistance of counsel under the Sixth Amendment attaches at post-indictment interrogations since that period is crucial to a proper defense; (2) the Supreme Court held in Escobedo that, once the investigation has focused on the accused, assistance of counsel is equally as important before indictment as after indictment.
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.
The defendant who does not realize his rights under the law and who therefore does not request counsel is the very defendant who most needs counsel. We should not penalize the defendant who, not understanding his legal rights, does not make the formal request and by such failure demonstrates his helplessnes. Defendant in the instant case was peculiarly helpless; he was a convict without contact with the world beyond the prison; the effect of his confession, irretrievably linking him with the murder, was to expose him to the automatic [394 P.2d 957] [40 Cal.Rptr. 269] sequence of the death penalty. To require the formal request for counsel for the application of the rule would be to favor the defendant whose sophistication or status had fortuitously prompted him to make the request.
As the Court in Escobedo stated, 'We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights.' (84 S.Ct. 1764; Italics added.) The concurring opinion of Justice Traynor in People v. Garner (1961) 57 Cal.2d 135, 165, 18 Cal.Rptr. 40, 59, 367 P.2d 680, 698, also recognizes the deep disadvantage inflicted upon the accused ignorant of legal process. 'Giving an accused who has the means and foresight to retain an attorney (frequently the 'professional criminal') a right to counsel's presence during interrogation, would widen the gulf between the rights of a person with and one without counsel.' See also Barth, The Price of Liberty (1961) The Viking Press, New York, p. 162.
The United States Supreme Court has not required a request for the invocation of the protective rule. Massiah recognized the right to counsel at the post-indictment stage; Escobedo carried the right to the pre-indictment stage; neither conditioned the right upon a request. In Escobedo the Court merely treated defendant's request for counsel and denial of it as evidence that the investigation had become accusatory. The Court said, 'The interrogation here was conducted before petitioner was formally indicted. But in the context of this case, that fact should make no difference. When petitioner requested, and was denied, an opportunity to consult with his lawyer, the investigation had ceased to be a general investigation of 'an unsolved crime.' (Citation omitted.) Petitioner had become the accused, and the purpose of the interrogation was to 'get him' to confess his guilt despite his constitutional right not to do so.' (84 S.Ct. at p. 1762.)
See also, the dissenting opinion in Escobedo of Justice White, concurred in by Justices Clark and Stewart, in which Justice White states that under the majority opinion the constitutional protection of counsel cannot depend on whether or not the suspect requests a lawyer, but must depend on whether the suspect intelligently waived his right to counsel. Justice White said: 'In Massiah v. United States, 377 U.S.201, 84 S.Ct. 1199, 12 L.Ed.2d 246, the Court held that as of the date of the indictment the prosecution is disentitled to secure admissions from the accused. The Court now moves that date back to the time when the prosecution begins to 'focus' on the accused. Although the opinion purports to be limited to the facts of this case, it would be naive to think that the new constitutional right announced will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S 353, 83 S.Ct. 814, 9 L.Ed.2d 899, or has asked to consult with counsel in the course of interrogation. Cf. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. At the very least the Court holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police thereafter is inadmissible in evidence unless the accused has waived his right to counsel.' (Emphasis added.) See also, the concurring opinion of Justice Traynor, in People v. Garner (1961) 57 Cal.2d 135, 160, 18 Cal.Rptr. 40, 55, 367 P.2d 680, 695, in which he said, 'It is a formalistic assumption that indictment is the point when a defendant particularly needs the advice and protection of counsel.'
Indeed, the Supreme Court in Carnley v. Cochran (1962) 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 has 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 [394 P.2d 958] [40 Cal.Rptr. 270] 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.''
In Escobedo and Massiah the Supreme Court struck down any artificial distinction between the post and preindictment confession; yet the distinction between the confession of the defendant who specifically requests counsel and the one who submits no such request must pose an equally untenable artificiality. The requirement for the utterance of special words of request for counsel would compel an unreliable and discriminatory formalism.
If we were to require that a request for counsel precede the confession in order that defendant be protected against self-incrimination, we would open up problems of proof. 'The 'request' rationale not only raises difficult problems of proof, when the police deny that a request for counsel has been made, but also seems to penalize the ignorant who may be most in need of counsel's aid. * * * ' (Note, An Historical Argument for the Right to Counsel During Police Interrogation (1964) 73 Yale L.J. 1000, 1053.)
Finally, we cannot dispose of the introduction of the illegally obtained confession upon the ground that it constituted merely harmless error. The use of involuntary confessions or admissions results in a denial of due process and requires reversal 'regardless of other evidence of guilt.' (People v. Matteson (1964) 61 A.C. 511, 514, 39 Cal.Rptr. 1, 3, 393 P.2d 161, 163; accord: People v. Brommel (1961) 56 Cal.2d 629, 634, 15 Cal.Rptr. 909, 364 P.2d 845; People v. Trout (1960) 54 Cal.2d 576, 585, 6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418; People v. Berve (1958) 51 Cal.2d 286, 290, 332 P.2d 97; Lynumn v. Illinois (1963) 372 U.S. 528; Rogers v. Richmond (1961) 365 U.S. 534, 540-541, 81 S.Ct. 735, 5 L.Ed.2d 760; Payne v. Arkansas (1958) 356 U.S. 560, 567-570, 78 S.Ct. 844, 2 L.Ed.2d 975.) Thus, section 4 1/2, article VI, of the Constitution does not apply in the case of the improper introduction into evidence of a confession illegally obtained by the use of coercion. Only recently in People v. Brommel, supra, 56 Cal.2d 629, 634, 15 Cal.Rptr. 909, 912, 364 P.2d 845, 848, we stated: 'Apart from his confessions the case against defendant was wholly circumstantial, but however strong the case otherwise the admission of involuntary confessions compels a reversal, and section 4 1/2, article VI, of the Constitution can under no circumstances save the judgment.'
The improper introduction of the confession which has been obtained in violation of the constitutional right to counsel transgresses the protection of due process no less than the illegal introduction of a confession which has been coerced. In either case courts cannot inquire into the prejudicial nature of the introduction of an illegally obtained confession for the reasons stated in People v. Parham (1963) 60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 501, 384 P.2d 1001, 1005: 'Almost invariably * * * a confession will constitute persuasive evidence of guilt, and it is therefore usually extremely difficult to determine what part it played in securing the conviction. * * * These considerations justify treating involuntary confessions as a class by themselves and refusing to inquire whether in rare cases their admission in evidence had no bearing on the result.' (Citations omitted). Thus the improper introduction at trial of the confession in the instant case obtained in violation of a constitutional right compels reversal.
The judgment is reversed.
GIBSON, C. J., and TRAYNOR, PETERS, and PEEK, JJ., concur.
McCOMB, Justice.
I dissent. I would affirm the judgment. I am of the opinion that the errors complained of have not resulted in a miscarriage of justice. The evidence of the [394 P.2d 959] [40 Cal.Rptr. 271] murder was extremely strong. It was indicated by three voluntary confessions and corroborated by circumstantial evidence. It was a cold and deliberate murder. Therefore, under article VI, section 4 1/2, of the Constitution of the State of California the judgment should not be reversed.
SCHAUER, J., concurs.
Rehearing granted; MOSK, J., not participating.