ALFREDO LEYVA PECINA v. THE STATE OF TEXAS

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Court of Criminal Appeals of Texas.

ALFREDO LEYVA PECINA, Appellant v. THE STATE OF TEXAS

ALFREDO LEYVA PECINA, Appellant v. THE STATE OF TEXAS

ALFREDO LEYVA PECINA, Appellant v. THE STATE OF TEXAS

NO. PD–1095–10NO. PD–1095–10NO. PD–1095–10

Decided: January 25, 2012

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

A Tarrant County jury convicted appellant of the murder of his wife.   The trial judge denied appellant's motion to suppress his statements to police during custodial questioning at a hospital after a magistrate had given him his Article 15.17 rights.1  The trial judge rejected appellant's claim that he had invoked both his Fifth and Sixth Amendment rights to counsel when he asked the magistrate for an appointed attorney but also said that he wanted to talk to the police who were standing outside the hospital room.   On remand from this Court, the court of appeals, over a dissent, held that appellant had invoked his Fifth Amendment right to interrogation counsel during the magistration process.2

We granted the State's petition for discretionary review to clarify the distinction after Montejo between the Fifth Amendment right to interrogation counsel and the Sixth Amendment right to trial counsel.3  Under Montejo, the Fifth Amendment right to interrogation counsel is triggered by the Miranda warnings that police must give before beginning any custodial questioning.   The Sixth Amendment right to trial counsel is triggered by judicial arraignment or Article 15.17 magistration.   Both the Fifth and Sixth Amendment rights to counsel apply to post-magistration custodial interrogation, but each is invoked and waived in exactly the same manner-under the Fifth Amendment prophylactic Miranda rules.   We hold that, because appellant never invoked his right to interrogation counsel after the police gave him Miranda warnings, the trial judge did not err in denying appellant's motion to suppress.

I.

A. 

Factual Background.

Arlington paramedics responded to a 911 call and found appellant and his wife, Michelle, in their apartment, both bleeding from stab wounds.   Michelle, who had been stabbed fifty-five times, died before the paramedics arrived.   Appellant was taken to the hospital.   A serrated kitchen knife with a seven-inch blade was found on the bathroom floor.   Based on their initial investigation, detectives believed that appellant had killed Michelle and then stabbed himself.   After several days, they obtained an arrest warrant.   Then Detectives Nutt and Frias took Judge Maddock, a local magistrate, to appellant's hospital room.

Judge Maddock testified at the suppression hearing that she normally performs magistration hearings at the Arlington City Jail, but she went to the hospital for appellant's hearing, as she had done in some other cases, “due to the policy of the sheriff's office [that it will not] transfer ․ a Defendant until he has been fully magistrated.”   The two detectives drove Judge Maddock to the hospital and entered appellant's room with her.   They all introduced themselves.   Judge Maddock, who was fluent in Spanish, told appellant, while pointing to the detectives, “They are here.   They would like to speak to you.”   Appellant either said yes or nodded.

The detectives then left the room and stood outside while Judge Maddock arraigned appellant.   She read appellant a Spanish version of the Article 15.17 “Adult Warning Form,” although she had only an English version for him to sign.4  After reading appellant his rights, Judge Maddock asked if he “want[ed] a court appointed attorney.   And he stated he did.”   She then asked appellant, “Do you still want to talk to [the detectives]?”   He said that he did.   Appellant signed the Article 15.17 form acknowledging that he understood his rights.

Judge Maddock stated that, in her opinion, appellant's decision to speak with the detectives was free and voluntary and there was “absolutely no coercion.”   She believed that, when appellant asked for counsel, he was asking for trial counsel.   She said that appellant never indicated that he wanted a lawyer to be present when detectives questioned him.   Judge Maddock then went into the hall and told the detectives that appellant “had initially asked for a lawyer, but [that] she had been told by Mr. Pecina that he wanted to talk to them.”   She gave the signed Article 15.17 form to the detectives, and she waited in the hallway.

Detectives Frias and Nutt then came back into appellant's room.   Det. Frias spoke Spanish and explained to appellant who they were and that they wanted to question him about his wife's murder.   Appellant said that he wanted to talk with them, so Det. Frias wrote, in Spanish, on the 15.17 form, “I asked for a lawyer, but also I wanted to speak with the Arlington police.”   The officers told appellant that they would record the interview, and as they prepared their equipment, Det. Frias gave appellant the Miranda 5 warnings orally in Spanish.   The audio equipment malfunctioned at first, so Det. Frias orally warned Pecina again once the tape started.   Appellant also signed a card that listed his Miranda rights in Spanish.   At every point, appellant waived his Miranda rights.   While taping the oral statement, Det. Frias wrote out a written version for appellant, and he signed it.6

The detectives said that appellant never asked to stop the interview and never asked to speak with counsel.   They denied making any promises, and they stated that they believed appellant's waiver was knowing, intelligent, and voluntary.   After their interview, the detectives took Judge Maddock back to her office, and she began the process to appoint appellant's trial counsel.

Appellant testified that, if an attorney had advised him not to speak with police, he would not have talked with them.   The rest of his testimony dealt with whether he was advised that he could contact the Mexican Consulate.

The trial judge denied the motion to suppress.   He found that appellant was fully informed of his rights and “indicated that although he did want a lawyer, that he wished to also talk with detectives from Arlington, meaning that he basically was waiving his rights at that time.”

B. Appellate History.

On original submission, the Fort Worth Court of Appeals affirmed appellant's murder conviction, finding that, when appellant agreed to speak with police in response to the magistrate's question, he initiated contact with police.7  Appellant's action waived both the Fifth Amendment right to interrogation counsel and the Sixth Amendment right to trial counsel, regardless of which he may have invoked.8  On discretionary review, we reversed, holding that, under Michigan v. Jackson,9 appellant “had invoked his [Sixth Amendment] rights to counsel when arraigned by the magistrate at the hospital,” and appellant's “yes” reply when the magistrate asked if he still wanted to talk with the police was insufficient to reinitiate contact and waive his previously invoked Sixth Amendment right.10  We remanded the case for the court of appeals to conduct a harm analysis.

While this case was pending in the court of appeals on remand, the United States Supreme Court overruled Michigan v. Jackson-the very case that we relied on in holding that appellant's invocation of his Sixth Amendment right to counsel at the magistration hearing rendered his subsequent waiver of the right to counsel for the police-initiated interview invalid-in Montejo v. Louisiana.11  However, the court of appeals held that, even after Montejo, appellant's statements should have been suppressed because he invoked his Fifth Amendment right to an interrogation attorney by asking the magistrate for an appointed lawyer.12  We granted review to discuss the distinct Fifth and Sixth Amendment rights to counsel after Montejo and to apply those differences to custodial interrogation.

II.

Over the past four decades, the jurisprudence concerning the Fifth Amendment right to counsel during police interrogation and the Sixth Amendment right to counsel at all “critical” stages of criminal proceedings had become intertwined in complex and confusing ways.   It was increasingly difficult for courts to determine which right can be invoked when and whether invocation of the right to counsel under one amendment invoked the right to counsel under the other amendment.   Finally, in Montejo, the United States Supreme Court disentangled the two right-to-counsel constitutional provisions and clarified their separate purposes and applications by overruling Michigan v. Jackson and reaffirming the bright-line rule of Miranda and Edwards.13  As Justice Scalia noted in his Montejo conclusion,

This case is an exemplar of Justice Jackson's oft quoted warning that this Court “is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.   We today remove Michigan v. Jackson 's fourth story of prophylaxis.14

We examine how the lessons of Montejo apply in this case, one that is factually very similar to Montejo.15

A. The Fifth Amendment Right to Interrogation Counsel.16

The Fifth Amendment prohibits the government from compelling a criminal suspect to bear witness against himself.17  In Miranda v. Arizona,18 the Supreme Court crafted safeguards to protect this “privilege against self-incrimination” in the inherently coercive atmosphere of custodial interrogations.19  Before questioning a suspect who is in custody, police must give that person Miranda warnings.   Only if the person voluntarily and intelligently waives his Miranda rights, including the right to have an attorney present during questioning, may his statement be introduced into evidence against him at trial.20

Under Edwards v. Arizona,21 once a person invokes his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by merely showing that the suspect responded to police-initiated interrogation after being advised of his rights again.22  The purpose of the Edwards rule is to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” 23  That prophylactic rule protects the suspect-who has made the decision not to speak to law-enforcement officers without his lawyer and clearly communicated that decision to the police-from further police badgering.24  In Montejo, the Supreme Court again praised the “clear and unequivocal guidelines to the law enforcement profession” that Edwards provides.25

It is the police officer or other law-enforcement agent who administers Miranda warnings, and he does so immediately before custodial interrogation.26  Thus, the police must give the Fifth Amendment Miranda warnings during the process of custodial interrogation but before questioning actually begins.27  But, as the Supreme Court noted in McNeil v. Wisconsin,28 it has never accepted the notion of an “anticipatory” invocation of Miranda rights (1) given by someone other than law-enforcement officers or other state agents;  or (2) outside the context of custodial interrogation.

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation”-which a preliminary hearing will not always, or even usually, involve․  Most rights must be asserted when the government seeks to take the action they protect against.   The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.29

Thus, in Montejo, the Supreme Court stated that, under its Fifth Amendment jurisprudence, “a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings.” 30  And if he does invoke his Fifth Amendment right to counsel, “not only must the immediate contact [by police] end, but ‘badgering’ by later requests is prohibited.” 31

Once formal adversary proceedings begin, the Sixth Amendment right to counsel applies in exactly the same way as the Fifth Amendment right applies to custodial interrogation.32  Thus, Miranda warnings serve the arrestee's interests in both the Fifth and Sixth Amendment rights to counsel during custodial interrogations conducted after a person has been formally charged.   Because the “doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver,” 33 both the Fifth and Sixth Amendment rights to interrogation counsel are fully encompassed by the Fifth Amendment Miranda doctrine.

B. The Sixth Amendment Right to Trial Counsel.

The Sixth Amendment right to counsel attaches once the “adversary judicial process has been initiated,” and it guarantees “a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” 34  We refer to this Sixth Amendment right with the short-hand term “trial counsel.”   Generally, an Article 15.17 initial appearance and magistration marks the initiation of adversarial judicial proceedings in Texas and “plainly signals” the attachment of a defendant's Sixth Amendment right to counsel.35

In Michigan v. Jackson, the Supreme Court had held that “if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.” 36  That is the rule that the Supreme Court explicitly overruled in Montejo because it was deemed “unworkable,” “superfluous,” and a “policy driven” doctrine whose “policy is being adequately served through other means.” 37

Furthermore, the Jackson rule simply did not take account of the practical realities and goals of the arraignment event and its relationship to the separate event of custodial interrogation.   When a person is brought before a magistrate, told that he is formally accused of committing a crime, and asked if he wants a lawyer to represent him in those criminal proceedings, that is an entirely different question from whether he wants a lawyer to be with him during any police questioning.   A defendant's response, “Yes, I want a lawyer,” is fatally ambiguous because it may mean “I want a lawyer for these judicial proceedings,” or “I want a lawyer before I talk to the police,” or “I want a lawyer for all purposes and I do not want to say anything more to anyone-you or the police-until I have one.” 38

As Montejo concluded, this ambiguity is easy to resolve:  a Sixth Amendment request for an attorney at an arraignment, initial appearance, or Article 15.17 hearing is a request for the guiding hand of counsel for all judicial criminal proceedings.   If the defendant also wishes to invoke his Sixth Amendment right to counsel during the “critical stage” of post-arraignment custodial interrogation,39 he may certainly do so.   But he does so by invoking that right to counsel, pursuant to Miranda, Edwards, and Minnick when law enforcement or other state agents embark upon custodial interrogation.40

Thus, both the Fifth and Sixth Amendment rights to counsel during custodial interrogation depend upon the same thing:  “What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation-not what happened at any preliminary hearing.” 41

Distilled to its essence, Montejo means that a defendant's invocation of his right to counsel at his Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation.   The magistration hearing is not an interrogation event.   An uncharged suspect may invoke his Fifth Amendment right to counsel (and a defendant who has been arraigned may invoke his Sixth Amendment right to counsel) for purposes of custodial interrogation when the police or other law-enforcement agents approach him and give him his Miranda warnings.   That is the time and place to either invoke or waive the right to counsel for purposes of police questioning.

C. Standard of Review

In reviewing claims concerning Miranda violations and the admission of statements made as the result of custodial interrogation, we conduct the bifurcated review articulated in Guzman v. State.42  We afford almost total deference to the trial court's rulings on questions of historical fact and on application of law to fact questions that turn upon credibility and demeanor while we review de novo the trial court's rulings on application of law to fact questions that do not turn upon credibility and demeanor.43

However, the Supreme Court has held that, in deciding whether an accused “actually invoked his right to counsel,” reviewing courts must use an objective standard “[t]o avoid difficulties of proof and to provide guidance to officers conducting interrogations[.]” 44  The accused “must unambiguously request counsel” during a custodial interrogation;  thus, “he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” 45  We view the totality of circumstances from the viewpoint of the objectively reasonable police officer conducting custodial interrogation.

With that general background, we turn to the present case.

III.

In this case, there were two separate events:  magistration followed by a custodial interrogation.46  Judge Maddock conducted the magistration and gave appellant his Article 15.17 warnings in Spanish.   Appellant told her, “I want a lawyer, but I also want to speak with the Arlington Police.”   In her opinion, appellant asked for the appointment of a trial attorney, but he wanted to talk to the police who were standing right outside the hospital door.   She did not believe that appellant invoked his right to counsel for purposes of custodial interrogation.47  As a neutral magistrate, acting in her judicial capacity, she concluded that appellant was willing to talk to the police officers without counsel.48  The detectives then entered and gave appellant his Miranda warnings in Spanish three separate times.   At no time did he hesitate, invoke his right to an attorney at that interview, or ask the officers to stop their questioning.   The officers concluded that appellant freely, voluntarily, and intelligently waived his right to counsel during their questioning.   There is nothing in the record that would contradict their conclusion.

Under the totality of these circumstances, we agree with the trial judge that an objective and reasonable police officer, conducting a custodial interrogation, would conclude that appellant had voluntarily waived both his Fifth and Sixth Amendment rights to counsel for purposes of the custodial questioning by Detectives Frias and Nutt. Because appellant was in custody at the time the police questioned him, he had a Fifth Amendment right to counsel if he wished to invoke it.   Because formal adversary proceedings had begun against appellant and were triggered by Judge Maddock's magistration, he had a Sixth Amendment right to counsel if he wished to invoke it.   He could invoke either or both in precisely the same manner-by telling the officers, after they gave him the Miranda warnings, that he wished to have an attorney before speaking to them.   He did not do so.   He, therefore, waived both his Fifth and Sixth Amendment rights to counsel during custodial interrogation.49

A majority of the court of appeals, in its opinion, acknowledged the Supreme Court's decision in Montejo, and stated that “Miranda and Edwards are still the law for suspects in custody subjected to police interrogation․  To protect the Fifth Amendment privilege against self-incrimination, the police may not initiate custodial interrogation of a suspect who has previously requested assistance of counsel.”   Not exactly.   Under Montejo, and following Miranda, Edwards, and Minnick, the correct statement is, “To protect the Fifth Amendment privilege against self-incrimination, the police may not continue or re-initiate custodial interrogation of a suspect who has previously requested assistance of counsel after the police informed him of his right to counsel at the beginning of a custodial interrogation.” 50  Judge Maddock's magistration did not trigger any Fifth Amendment right concerning custodial interrogation;  that was done by the detectives at the beginning of their interrogation.

Justice Holman, in his dissenting opinion in the court below, correctly noted that “the ‘Miranda-Edwards regime’ does not apply to ‘non interrogative types of interaction between the defendant and the State.’ ” 51  He stated that both the Supreme Court decision in Montejo and our post-Montejo decision in Hughen 52 make it clear that “whatever occurred at [appellant's] preliminary hearing did not even implicate Edwards because Pecina had not yet been approached for interrogation nor had he ever unambiguously expressed his desire to deal with the police only through his attorney.” 53  Further, Justice Holman correctly noted, “now that the Montejo court has overruled Jackson, neither a defendant's request for counsel at arraignment or similar proceeding nor appointment of counsel by a court gives rise to a presumption that any subsequent waiver by a defendant to police-initiated interrogation is invalid.” 54  We agree with this analysis.

Because, under Montejo, appellant never invoked his Fifth or Sixth Amendment rights to counsel during custodial interrogation, we conclude that the trial judge properly denied appellant's motion to suppress his statements made as a result of that police questioning.   We therefore reverse the judgment of the court of appeals and affirm the trial court's judgment.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

CONCURRING OPINION

Although I join the majority opinion's determination that Supreme Court precedent compels a conclusion that neither the Fifth nor the Sixth Amendments to the United States Constitution was violated, I write separately to observe that a different outcome might result under the Texas Constitution and state statutes.   The Texas Code of Criminal Procedure provides additional rights to appellant, Alfredo Leyva Pecina, beyond those provided by the United States Constitution.   These additional rights are the magistrate warnings required by Article 15.17 of the Texas Code of Criminal Procedure.  Tex.Code Crim. Proc. art. 15.17.

The Texas Code of Criminal Procedure describes a magistrate's duties, as follows:

The magistrate shall inform in clear language the person arrested ․ of the accusation against him, ․ of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers,․  The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel.

Tex.Code Crim. Proc. art. 15.17.   Consistent with this statutory requirement, the magistrate in this case advised appellant by stating, in pertinent part,

(2) You have a right to hire a lawyer and have him/her present prior to and during any interview and questioning by peace officers or attorneys representing [the] state;

(3) If you cannot afford a lawyer, you have the right to request the appointment of a lawyer to be present prior to and during any such interview and you have the right to have an attorney appointed to represent you if you cannot afford an attorney.   This means you may obtain your own lawyer or have a lawyer appointed for you.   You may have reasonable time and opportunity to consult your lawyer if you desire․

After informing him of his Article 15.17 rights to have an attorney present during any interview with peace officers and to have an attorney represent him in court, the magistrate asked appellant if he “want[ed] a court appointed attorney.   And he stated he did.”   Following this response, the magistrate asked appellant, “Do you still want to talk to [the detectives]?”   He replied that he did.   The magistrate testified that she believed he was asking for an attorney for trial proceedings rather than for speaking to the police officers.

As the State points out, a suspect's request for counsel must be unambiguous and sufficiently clear that a reasonable person in the circumstances would understand the statement to be a request for an attorney.   See Davis v. United States, 512 U.S. 452, 459 (1994).   The record shows that appellant plainly asked for an attorney immediately after the magistrate informed him of his right to an attorney for police interrogation and for courtroom proceedings.   The magistrate advised him that he had “a right to [have] ․ a lawyer ․ present prior to and during any interview and questioning by peace officers.”   After appellant told her he wanted an attorney, the magistrate asked him if he still wanted to speak with the officers, and he said he did.   From appellant's expressed desire to speak to the officers, the magistrate surmised that, when appellant had earlier asked for an attorney, the request was for court proceedings only.   I conclude that it is unreasonable to construe appellant's request for an attorney as a request for an attorney solely for court proceedings merely because he expressed a continuing desire to speak to the officers.   The magistrate's interpretation misses the whole point of the warning, which is the right to have an attorney present “during any interview with peace officers.”  Tex.Code Crim. Proc. art. 15.17.   I conclude that the record indisputably shows that appellant's request for an attorney was a request to have an attorney present during interrogation, as well as during court proceedings.

As the majority opinion points out, appellant's request for an attorney was, at most, a pre-invocation of his right to counsel, which attached at the time of the later police interrogation.   Because Supreme Court precedent dictates that pre-invocation of a defendant's Miranda rights is ineffective under the United States Constitution, I agree with the majority's determination that there is no federal constitutional violation here.   See McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991).

Although there is no federal constitutional violation under Supreme Court precedent, the magistrate's failure to provide an attorney for interrogation after one was requested may violate Article 15.17 because the magistrate advised appellant of his right to have an attorney for interrogation and he requested one, but none was provided.   See Tex.Code Crim. Proc. art. 15.17.   If this were a violation of Article 15.17, a harm analysis under Texas Rule of Appellate Procedure 44.2(b) might be appropriate.   See Tex.R.App. P. 44.2(b).  Perhaps this would always be harmless error if the appellant was re-warned of his statutory rights at the time he made the statement and waived an attorney upon receiving the new warnings.   But we do not reach any of those issues because the present appellate challenge concerns the federal constitution only.

The clear intent of Article 15.17 is to ensure that a defendant is advised of his rights to an attorney for interrogation and courtroom proceedings.   See Tex.Code Crim. Proc. art. 15.17.   But the current scheme seems to have the opposite effect when the magistrate warnings come before the police officer's interrogation.   The magistrate warnings create a confusing situation when the magistrate informs the defendant of the right to have an attorney during questioning but then fails to provide one, and then the police advise him of that same right to an attorney that was asked for minutes earlier but not provided.   A defendant might reasonably surmise that the government does not really intend to provide him an attorney during questioning because his first request for an attorney during questioning was ignored.   Making matters worse, the defendant is never given any explanation concerning the magistrate's failure to provide an attorney pursuant to his request.   All he knows is that his request was ignored.   The Legislature could easily fix this problem by adding one sentence to the Article 15.17 admonishments:  “If you desire to have an attorney present during police interrogation, you must make that request at the time of the police questioning.” 1  This additional warning would clearly advise the defendant that the time to make the request for an attorney for assistance with police interrogation is at the time of the interrogation and not earlier.

With these comments, I join the majority opinion in this case.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

DISSENTING OPINION

In summarizing the substantive Fifth and Sixth Amendment regime in place after the United States Supreme Court's opinion in Montejo v. Louisiana,1 the Court today says:

Distilled to its essence, Montejo means that a defendant's invocation of his right to counsel at his Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation.   The magistration hearing is not an interrogation event.   An uncharged suspect may invoke his Fifth Amendment right to counsel (and a defendant who has been arraigned may invoke his Sixth Amendment right to counsel) for purpose of custodial interrogation when the police or other law-enforcement agents approach him and give him his Miranda warnings.   That is the time and place to either invoke or waive the right to counsel for purposes of police questioning.2

I gather that this conclusion stems from the observation, identified earlier in the Court's opinion as deriving from a footnote in McNeil v. Wisconsin, that the Supreme Court has “in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation[.]’ ” 3  Ultimately the Court concludes that “Judge Maddock's magistration did not trigger any Fifth Amendment right concerning custodial interrogation;  that was done by the detectives at the beginning of their interrogation.” 4  I agree that, ordinarily, it is probably accurate to say that, even though it includes the issuance of Miranda warnings, a “magistration hearing is not an interrogation event.”   But nothing in either Montejo or McNeil compels us invariably to regard these—a “magistration hearing” versus an “interrogation”—as mutually exclusive events for Fifth Amendment purposes.   And it strikes me as unwise to hold as a categorical matter that a magistration hearing under Article 15.17 can never constitute any part of an “interrogation event.”   To my mind, the facts of this case amply illustrate why.

This is not a case that turns on the credibility of the witnesses at the suppression hearing or the reliability of their testimony, neither of which is disputed.   Two Arlington police detectives picked up Judge Maddock from the municipal courthouse and took her with them to the appellant's hospital room, where he was already under the guard of a Dallas County deputy sheriff.   Pointing to the detectives, Judge Maddock told the appellant, “They are here.   They would like to speak to you.”   Judge Maddock remembered that the appellant either nodded or said “yes,” thus “acknowledg[ing]” her statement as to why the detectives were present.5  The detectives then stepped out of the room for “probably fifteen or twenty minutes” while Judge Maddock administered the Article 15.17 warnings, in Spanish, informing the appellant of what he was charged with and then issuing all of the admonishments that are enumerated in footnote four of the Court's opinion today.6  These warnings explicitly and exclusively refer to the appellant's right to counsel, whether retained or appointed, “during any interview and questioning by peace officers or attorneys representing [the][S]tate[.]”  They nowhere refer, even implicitly, to the appellant's right to representation at any other time or for any other purpose.   At the conclusion of this process, Judge Maddock asked the appellant whether he wanted “a court appointed attorney.   And he stated he did.”

Judge Maddock testified that she took this to mean that the appellant wanted her to appoint an attorney to represent him “for court[,]” for “these proceedings.”   She did not elaborate, and it is unclear to me why she would think so, since the warnings she had just administered to the appellant made no allusion whatsoever to the right to an attorney for trial.   She told the waiting detectives that the appellant “had initially asked for a lawyer,” but that he had then told her “that he wanted to talk to” the detectives.   From their respective testimonies, one gets the distinct impression (or at least I do) that the detectives understood Maddock to mean that the appellant had first indicated that he wanted counsel appointed for purposes of the police interrogation, but that he had subsequently relented.   In any event, it does not matter what either Judge Maddock or the detectives believed since, as the Court correctly acknowledges today, the standard is an objective one 7 —a suspect must articulate that his desire is for counsel for purposes of custodial interrogation, and he must do so with sufficient clarity that a reasonable officer under the circumstances would understand it to be just that.8  I agree with the court of appeals that the objective circumstances in this case can only reasonably be construed to indicate that the appellant's initial, clearly expressed desire was to have the assistance of counsel for purposes of custodial interrogation.9

Of course, it is also undisputed that what I take from the circumstances to be a clear invocation of the right to interrogation counsel—not trial counsel—occurred in front of the magistrate alone, out of the immediate presence of the interrogating officers themselves.   Although I am not entirely certain, I think what the Court is saying today is that this makes all the difference because what happened in the hospital room in the absence of the detectives was merely a “magistration” and not an “interrogation event.”   But even the Court seems to concede that an “interrogation event” may be initiated either by law-enforcement or some “other state agent[ ].” 10 Any reasonably objective viewer would conclude from the peculiar facts of this case that Judge Maddock was acting as a de facto agent of the interrogating detectives.   She arrived with them at the hospital room, where the appellant was already under the guard of law enforcement.   The first thing she told him was that the detectives wanted to “speak” to him.   She then pointedly and exclusively informed him of his Fifth Amendment right to counsel for purposes of custodial interrogation, and, after he invoked it, nevertheless asked him whether he “still” wanted to talk to the detectives—though she would later acknowledge that he had not told her, up to that point, that he did want to talk to them.   In other words, by all objective indicators, Judge Maddock was doing her utmost to facilitate the appellant's immediate subjugation to custodial interrogation.

“Most rights[,]” Justice Scalia observed in his footnote in McNeil, “must be asserted when the government seeks to take the action [those rights] protect against.” 11  Like the court of appeals, I believe that this is exactly what the appellant did in this case.12  To avoid the consequences of that assertion by categorizing Judge Maddock's conduct as nothing more than a “magistration,” which, by the Court's definition, can never form any part of an “interrogation event,” amounts to the proverbial exaltation of form over substance—it willfully ignores the objective reality of the situation as accurately perceived by the court of appeals.   I understand that it is sometimes difficult to stomach the consequences of a doubly prophylactic rule such as Edwards under circumstances, like those presented by this case, in which a suspect appears later to freely and voluntarily relinquish the Fifth Amendment right to counsel that he had earlier invoked.   But, just as it is never our prerogative to ignore Supreme Court precedent, neither should we conjure new strategies, as the Court appears to do today, that carve out artificial legal distinctions in order to avoid those unpalatable consequences.   The appellant clearly invoked his right to counsel for custodial interrogation in the context of what was unmistakably an “interrogation event.”   That the invocation also occurred during a simultaneous “magistration,” while accurate, does not detract from its essential character for Fifth Amendment purposes.   And once a suspect has made it clear that he desires the assistance of counsel in coping with police interrogation, we are not entitled to look at his subsequent responses to official entreaties “to determine in retrospect whether the suspect really meant it when he unequivocally invoked the right to counsel.” 13

I agree with the court of appeals's conclusion that the appellant's Fifth Amendment right to interrogation counsel was violated, and I would therefore affirm its judgment.   Because the Court does not, I respectfully dissent.

FOOTNOTES

1.  FN1. Tex.Code Crim. Proc. art. 15.17.

2.  FN2. Pecina v. State, 326 S.W.3d 249, 265–66 (Tex.App.-Fort Worth 2010) (“When Pecina requested appointment of counsel, which is undisputed, he invoked his Fifth Amendment right to consult with and have counsel present, as the magistrate explained that right to him, at any police questioning.   The police were waiting in the hall to question him at that moment.”).

3.  FN3. The State's Grounds for Review are as follows:

4.  FN4. Judge Maddock read the Spanish version of the rights printed on the English version, including the following:

5.  FN5. Miranda v. Arizona, 384 U.S. 436 (1966).

6.  FN6. In his taped statement, appellant said that he did not remember much about the day his wife died.   He said that they had argued about her not wanting to be with him.   He became angry, and they started to fight.   Appellant admitted that he had cut his wife and that no one else was present when these events occurred.   He had no memory of cutting himself.   In his written statement, appellant said that he picked up the knife from the kitchen and cut his wife, but he did not remember how many times he cut her.

7.  FN7. Pecina v. State, No. 2–05–456–CR, 2007 WL 1299263, *7–8 (Tex.App.—Fort Worth May 3, 2007) (not designated for publication) (Pecina I ).

8.  FN8. Id.

9.  FN9. 475 U.S. 625 (1986).

10.  FN10. Pecina v. State, 268 S.W.3d 564, 568 (Tex.Crim.App.2008) (“While we agree with the court of appeals that Appellant's Sixth Amendment right to counsel attached when he was arraigned by the magistrate, we disagree that Appellant himself initiated contact with the police.”)  (Pecina II ).

11.  FN11. Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079 (2009).

12.  FN12. Pecina v. State, 326 S.W.3d 249, 264–67 (Tex.App.—Fort Worth 2010) (Pecina III ).

13.  FN13. Montejo, 556 U.S. at _, 129 S.Ct. at 2091–92.

14.  FN14. Montejo, 556 U.S. at _, 129 S.Ct. at 2092 (citation omitted).

15.  FN15. Jesse Jay Montejo was arrested for murder and questioned by police detectives.   He admitted that he had shot and killed the victim in a botched burglary.   Several days later he was charged with murder and, at a preliminary hearing, the judge ordered that counsel be appointed to represent him.  129 S.Ct. at 2082.   Later that same day, police detectives visited Montejo in jail.   They read him his Miranda rights and asked him to accompany them to find the murder weapon.   Montejo agreed, and, during the trip, he wrote “an inculpatory letter of apology to the victim's widow.”  Id. Only later did Montejo meet his court-appointed lawyer, “who was quite upset that the detectives had interrogated his client in his absence.”  Id. On appeal, Montejo claimed that the inculpatory letter should not have been admitted because he had invoked his Sixth Amendment right to counsel at the preliminary hearing and thus police officers were barred from questioning thereafter without the presence of counsel.  Id. at 2083.   The Supreme Court held that neither a defendant's request for counsel at a preliminary hearing nor appointment of that counsel affects the validity of the defendant's waiver of his Miranda rights during a subsequent custodial interrogation by police.   Id. at 2091–92.   But the Court remanded the case to determine whether Montejo had “made a clear assertion of the right to counsel when the officers had approached him about accompanying them on the excursion for the murder weapon,” because (1) the question of whether Montejo had validly waived his Miranda rights had not been fully litigated;  and (2) he could still press his claim that his Sixth Amendment rights had been violated if the police misrepresented whether he had been appointed a lawyer when he purportedly waived his Miranda rights during that custodial interrogation.  Id.

16.  FN16. We refer to this right to counsel as the “Fifth Amendment right to interrogation counsel” to distinguish it from the “Sixth Amendment right to trial counsel.”   To be clear, thisis something of a misnomer to the extent that it indicates that the Fifth Amendment itself creates a right to counsel.   The rights created by Miranda, including the right to have counsel present during custodial interrogation, “are not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.”   However, because of the pervasiveness of the term's use in the cases of the Supreme Court ․ interpreting the right to counsel created by Miranda, we use it here.Goodwin v. Johnson, 132 F.3d 162, 179 n.12 (5th Cir.1997) (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1974) (all other citations and quotation marks omitted).

17.  FN17. U.S. Const. amend V (“No person ․ shall be compelled in any criminal case to be a witness against himself”).

18.  FN18. 384 U.S. 436 (1966).

19.  FN19. Id. at 441;  see also Dickerson v. United States, 530 U.S. 428, 437–38 (2000) (describing the Fifth Amendment right to interrogation counsel as a prophylactic rule necessary to mitigate the inherently coercive environment of custodial interrogation).

20.  FN20. Miranda, 384 U.S. at 475.

21.  FN21. 451 U.S. 477 (1981).

22.  FN22. Id. at 485.

23.  FN23. Michigan v. Harvey, 494 U.S. 344, 350 (1990).

24.  FN24. Texas v. Cobb, 532 U.S. 162, 175 (2001) (Kennedy, J., concurring).

25.  FN25. Montejo, 556 U.S. at _, 129 S.Ct. at 2091 (internal quotation marks omitted).

26.  FN26. Miranda, 384 U.S. at 444–45 (suspect may invoke his Fifth Amendment right to interrogation counsel “prior to” interrogation or during interrogation if he indicates “in any manner, and at any stage of the process that he wishes to consult with an attorney before speaking”).   In Montejo, the Supreme Court repeatedly referred to the Fifth Amendment right to counsel during “police initiated” custodial interrogation, thus it is that factual scenario-questioning by police officers or their agents-that gives rise to the prophylactic Miranda warnings, and the invocation or waiver of the Fifth Amendment right to counsel during such questioning.   See Montejo, 556 U.S. at _, 129 S.Ct. at 2086 (stating that “antibadgering” by police officers is the rationale of Edwards ), id. at 2087 (rejecting Montejo's proposed rule that would prevent “police-initiated interrogation entirely once the Sixth Amendment right” to counsel attaches), id. at 2089 (purpose of Jackson rule, like that of Edwards, “is to preclude the State from badgering defendants into waiving their previously asserted rights”).

27.  FN27. Id. at 467.   As the Miranda Court stated, “An individual need not make a pre-interrogation request for a lawyer.   While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver.   No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.”  384 U.S. at 470.   Thus, a suspect who, before the police have begun reading him his Miranda warnings, asks them for an attorney, is entitled to one before being questioned.   Similarly, a suspect who, upon being given his Miranda warnings, asks the police for an attorney, is entitled to one before being questioned.   And a suspect who initially states that he understands all of his rights and wishes to waive them, but, at any point during the questioning, stops and asks for an attorney, is entitled to one before being questioned further.

28.  FN28. 501 U.S. 171 (1991);  see also Green v. State, 934 S.W.2d 92, 97 (Tex.Crim.App.1996) (“Like the hearing in McNeil, appellant's request for an attorney at his appearance associated with the robbery was not an expression for assistance in dealing with custodial interrogation by the police.”);  Flamer v. Delaware, 68 F.3d 710, 725–26 (3d Cir.1995) (murder defendant's request for counsel at his arraignment did not constitute a Fifth Amendment request for counsel at a subsequent police interrogation;  “McNeil stands for the proposition that a request for an attorney at arraignment is, in itself, insufficient to invoke the Fifth Amendment right to counsel at subsequent custodial interrogation—even if that interrogation concerns the offense on which the defendant was arraigned.”);  Alston v. Redmond, 34 F.3d 1237, 1246 (3d Cir.1994) (“The antipathy expressed in McNeil towards the anticipatory invocation of the Miranda rights is consistent with Miranda 's underlying principles.   The Miranda right to counsel is a prophylactic rule that does not operate independent from the danger it seeks to protect against—‘the compelling atmosphere inherent in the process of in-custody interrogation’—and the effect that danger can have on a suspect's privilege to avoid compelled self-incrimination.”).

29.  FN29. 501 U.S. at 182 n.3.

30.  FN30. Montejo, 556 U.S. at _, 129 S.Ct. at 2090 (citing “the Miranda-Edwards–Minnick line of cases”).

31.  FN31. Id.

32.  FN32. Id. (noting that cases like Jackson “protect the right to have counsel during custodial interrogation-which right happens to be guaranteed (once the adversary judicial process has begun) by two sources of law.   Since the right under both sources is waived using the same procedure, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver”) (citations omitted).

33.  FN33. Id. at 2090.

34.  FN34. Montejo, 556 U.S. at _, 129 S.Ct. at 2085.   An accused may invoke his Sixth Amendment right “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”  Kirby v. Illinois, 406 U.S. 682, 689 (1972).   This is the “starting point” for the Sixth Amendment right to trial counsel because “it is only [when adversary proceedings commence] that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.”  Id.

35.  FN35. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008) (stating that Texas's article 15.17 magistration hearing “plainly signals” the attachment of the Sixth Amendment right to counsel, “even if it is not itself a critical stage.”);   see also Hughen v. State, 297 S.W.3d 330, 335 (Tex.Crim.App.2009) (defendant's “Article 15.17 initial appearance marked the initiation of adversarial judicial proceedings against him and thus ‘plainly signal[ed] attachment’ of his Sixth Amendment right to counsel.”).

36.  FN36. Michigan v. Jackson, 475 U.S. 625, 636 (1986).

37.  FN37. Montejo, 556 U.S. at _, 129 S.Ct. at 2089–91 (concluding that, “when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily conclude that the rule does not ‘pay its way.’ ”).

38.  FN38. See Montejo, 556 U.S. at _, 129 S.Ct. at 2086 (noting that even the Jackson Court acknowledged “doubt that defendants ‘actually intend [ed] their request for counsel to encompass representation during any further questioning’ ”).

39.  FN39. See Montejo, 556 U.S. at _, 129 S.Ct. at 2085 (citing Massiah v. United States, 377 U.S. 201, 204–05 (1967)).

40.  FN40. Montejo, 556 U.S. at _, 129 S.Ct. at 2089–90 (stating that, even without Jackson, “any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right․  These three layers of prophylaxis are sufficient.   Under the Miranda–Edwards–Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings․  If that regime suffices to protect the integrity of a ‘suspect's voluntary choice not to speak outside his lawyer's presence’ before his arraignment, it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached.”) (citation omitted).

41.  FN41. Id. at 2091.

42.  FN42. 955 S.W.2d 85, 89 (Tex.Crim.App.1997);  see Leza v. State, 351 S.W.3d 344, 349 (Tex.Crim.App.2011) (“[W]e measure the propriety of the trial court's ruling with respect to alleged Miranda violations under the totality of the circumstances, almost wholly deferring to the trial court on questions of historical fact and credibility, but reviewing de novo all questions of law and mixed questions of law and fact that do not turn on credibility determinations.”);  Ripkowski v. State, 61 S.W.3d 378, 381–82 (Tex.Crim.App.2001).

43.  FN43. Leza, 351 S.W.3d at 349.

44.  FN44. Davis v. United States, 512 U.S. 452, 458–59 (1994).

45.  FN45. Id. at 459.

46.  FN46. The court of appeals mistakenly concluded that, during the magistration, appellant was “approached for interrogation.”  Pecina III, 326 S.W.3d at 267 (“The detectives-acting through the magistrate-initiated interrogation by asking Pecina if he still wanted to talk to them.”).   These are entirely distinct events, and the officers were not even in the hospital room when Judge Maddock performed her magistration duties, nor could it be said that, as a judge, she was somehow a conduit for custodial interrogation by the detectives.

47.  FN47. Indeed, such a request would be entirely inconsistent with the words that appellant actually used.   See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 178–79 (1991) (“[T]o find that [the accused] invoked his Fifth Amendment right to counsel on the present charges merely by requesting the appointment of counsel at his arraignment on the unrelated charge is to disregard the ordinary meaning of that request.”) (internal quotations marks omitted).

48.  FN48. The article 15.17 hearing assures suspects that judges, not police, are in charge of the justice system in America.   As Professors Dix and Schmolensky have noted,A primary function of the appearance before the magistrate, of course, is the provision of the interrogation warnings, but by a person with less interest in having waivers than interrogating officers.   In addition, presentation demonstrates to suspects that the law enforcement agency holding them acknowledges outside limits upon its power over suspects.   Both impartial warnings and the demonstration of judicial dominance may reduce the inherently coercive impact of later custodial interrogation upon suspects.41 G.  Dix & J. Schmolensky, Texas Practice Series:  Criminal Practice and Procedure E § 20:5 (3d ed.2011).

49.  FN49. Appellant aptly notes, “Once counsel is invoked, whether it is called 5 th Amendment invocation or a 6 th Amendment invocation is a distinction without a lot of difference.”   Appellant's Brief at 6. He is correct in the context of post-arraignment custodial interrogation, as a defendant has both a Fifth and Sixth Amendment right to counsel during that interrogation and either (or both) is triggered by the police giving him the Miranda warnings.

50.  FN50. See Montejo, 556 U.S. at _, 129 S.Ct. at 2090 (“[A] defendant [i.e. one who has been formally charged with a crime] who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings.”).

51.  FN51. Pecina III, 326 S.W.3d at 271 (Holman, J., dissenting).

52.  FN52. In Hughen, the defendant was taken to a magistrate who read him his rights under article 15.17.  297 S.W.3d at 331–32.   The defendant requested appointment of counsel.  Id. Three hours later, a detective initiated custodial interrogation by reading the defendant his Miranda rights, and the defendant waived those rights and agreed to talk to the officer without counsel.  Id. at 332.   We held that the Fifth Amendment Miranda waiver was sufficient to waive his Sixth Amendment right to counsel during that interview.  Id. at 335.  Hughen specifically dealt only with a waiver under the Sixth Amendment because that was his specific claim.   Under Montejo, the result is exactly the same under either a Fifth or Sixth Amendment claim.

53.  FN53. Pecina III, 326 S.W.3d at 271 (Holman, J., dissenting).

54.  FN54. Id. at 272.

1.  FN1. The Code of Criminal Procedure advises magistrates to clearly explain to defendants their rights.   See Tex.Code Crim. Proc. art. 15.17 (directing magistrates to inform defendants of their “right to retain counsel” in “clear language”).   A magistrate, therefore, could add this additional warning even if the Legislature fails to amend the statute.556 U.S. 778, 129 S.Ct. 2079 (2009).Majority opinion, at 15–16.Id. at 11 (quoting McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991).Id. at 19.Later in her testimony, Judge Maddock would clarify that the appellant “never said to me that he wanted to talk to” the detectives.   I take this to mean that she did not construe his initial acknowledgment that the detectives would like to “speak” to him as an indication that he was willing to do so.Majority opinion, at 4 n.4.Majority opinion, at 16–17.State v. Gobert, 275 S.W.3d 888, 892–93 (Tex.Crim.App.2009).The court of appeals majority's view is well expressed and bears repeating:We ․ disagree with the dissent's assertion that whatever occurred at the article 15.17 hearing did not implicate Edwards [v. Arizona, 451 U.S. 477 (1981) ] because Pecina had somehow “not yet been approached for interrogation.”   Dissenting op. at 272.   The record belies any such interpretation.   The detectives did not just happen to show up at Pecina's hospital room.   They went to the hospital to arrest Pecina and to interrogate him and brought with them the magistrate to administer his Miranda warnings;  they walked into his room with the magistrate;  the magistrate explained to Pecina that the detectives wanted to talk to him;  and they waited in the hall while she administered the warnings.   After he had invoked his right to counsel, they proceeded to re-enter the room and conduct their interrogation after reading Pecina his Miranda rights a second and third time.

FOOTNOTE.  FN* * *Nor did Pecina invoke his Fifth Amendment right to counsel “anticipatorily,” as the dissent asserts, using a term referenced in dictum by the majority opinion in Montejo.  ․ Pecina asked for appointed counsel in response to being advised that he was entitled to counsel during any questioning and while the police waited to do just that.   His request was precisely for the sort of assistance of counsel that is the subject of Miranda.Pecina v. State, 326 S.W.3d 249, 267 & n.101 (Tex.App.—Fort Worth 2010).Majority opinion, at 11.McNeil, supra, at 182 n.3.See note 9, ante.Gobert, supra, at 893.

Cochran, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Womack, Johnson, Keasler, Hervey and Alcala, JJ., joined.   Alcala, J., filed a concurring opinion in which Johnson, J., joined.   Price, J., filed a dissenting opinion.Alcala, J., filed a concurring opinion in which Johnson, J., joined.Price, J., filed a dissenting opinion.

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