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The PEOPLE, Plaintiff and Respondent, v. Jeffrey Allen WALSH, Defendant and Appellant.
Jeffrey Allen Walsh was convicted by a jury of second degree murder with use of deadly weapons (Pen.Code,1 §§ 187, 12022, subd. (b)), eight counts of solicitation to commit murder (§ 653f(b)) and two counts of solicitation to commit perjury (§ 653f(a)). On appeal, Walsh contends the court should have suppressed his post-arraignment statements to the police, erroneously instructed the jury on malice and there was insufficient evidence to sustain two of his convictions for solicitation to commit murder. We conclude errors occurred in the admission of Walsh's post-arraignment statements and in the instructions to the jury but find the errors harmless. We hold the evidence does not support two of the convictions for solicitation to commit murder and therefore reverse those convictions.
FACTS
Solicitations to Commit Murder
Walsh was a sailor stationed on the U.S.S. Marvin Shields. In October 1985 he was restricted to the ship for 30 days for having failed to perform his duties. He had recently separated from his wife Cheryl. Cheryl had moved into an apartment with Tammy Swetof. The Walshes and Swetofs had been neighbors in El Cajon but the Swetofs had separated and Tammy had moved into her own apartment.
While Walsh was on restriction, his wife filed for divorce. She attempted to have the Navy provide her with an allotment from Walsh's salary and ran up expenditures on Walsh's credit cards. At one point, Walsh's wife and Swetof met Walsh on board the Shields so Walsh could sign an agreement he had drawn up. The agreement provided Walsh would give his wife $60 then and $100 after he got off restriction and his wife would return to him his car. After Walsh and his wife signed the agreement, Walsh left, purportedly to make copies. Walsh altered the document to show he owed his wife $1 instead of $100. A heated argument ensued between Walsh, his wife and Swetof on the quarter-deck of the ship.
During Walsh's restriction to the ship, he made numerous solicitations of individual shipmates to kill his wife. He offered his shipmates thousands of dollars as well as his car if they would kill his wife. He suggested using a pipe, knife or a bat to kill his wife, stating he had severely beaten or killed someone in the past with a pipe or a bat. Walsh drew maps of where his wife and Swetof lived and gave the map to at least two of the shipmates he had solicited for his wife's murder. He told two of his shipmates to also kill Swetof “if she's there.” Walsh was angry with Swetof because he believed she was encouraging his wife to cause him trouble.
The Murder of Swetof
On November 22, Walsh's restriction ended. He arranged to meet his wife on November 25 at 8:00 p.m. at a Denny's restaurant so he could give her the $100 he owed and have her sign some allotment papers. On November 25, Cheryl left her apartment about 7:45 p.m. to meet Walsh. Swetof was left alone in the apartment.
Walsh, instead of going to the Denny's to meet his wife, went to his wife's apartment. Swetof was on the phone talking to her mother when Walsh arrived. Swetof let Walsh into the apartment. An argument ensued and Swetof hung up the phone, telling her mother “I have to go rescue my bedroom.” Walsh testified he was angry about seeing things that belonged to him in Swetof's apartment. He stated he looked into the apartment's bedroom, saw his wife's belongings and only one bed. He accused Swetof of sleeping with his wife.2 Swetof allegedly told him to leave and threw a rolling pin towards him. The rolling pin did not hit him. Walsh said he could have left at that point but did not because he felt he had been manipulated by her and his wife, was frustrated, that his masculinity had been threatened and he wasn't “going to back down” any longer. Walsh stabbed Swetof nine times with a steak knife in the neck and chest area, including in her heart and pulmonary artery. Swetof also sustained defensive wounds. Walsh additionally bludgeoned Swetof on her head at least 25 times with a rolling pin. Walsh testified he was aware he was stabbing and bludgeoning her and that she was struggling to get away. The pathologist opined she was first stabbed and then bludgeoned and that after all the blows on the head, Swetof would have been dead.
At about 8:00 p.m. Swetof's ex-husband called the apartment. Walsh answered the phone. Walsh first said Swetof was in the bathroom and then said Swetof was not there but was out at a Denny's with Cheryl and Cheryl's husband. Walsh said to call back in a half hour. Swetof's husband heard moaning in the background and some “scuffling” or what sounded “like something was being dragged on a rug.” Walsh identified himself as “Ken,” but Swetof's husband recognized Walsh's voice and told him so. Walsh “snickered” and told Swetof's husband to call back in half an hour. Swetof called the police.
Shortly after this phone call, a friend of Cheryl's from Oklahoma called. Walsh again answered the phone, telling the caller his name was “Gregg.” He said Cheryl was at a Denny's meeting her husband. Walsh left the apartment, taking the steak knife and rolling pin with him. He threw the knife in the bushes by the apartment building and the rolling pin out of his car as he was driving home.
After he arrived home, he stripped off his bloody clothes and took a shower. His wife arrived, having waited until 8:20 p.m. for Walsh to show up at the Denny's. When she arrived she noticed the fan motor of Walsh's car was still running. Walsh claimed he had not met her because he had overslept. She questioned this, asking why was it that the fan motor of his car was still running if he had overslept. Walsh stated he went out to make a telephone call to his wife's apartment because he realized he was going to be late.
Walsh and his wife went to a Denny's. Walsh gave Cheryl $100. He told her he was going to be in big trouble for something he did. After seeing Cheryl, Walsh disposed of his bloody sweater and jeans in a trash dumpster. Later, Walsh returned to his ship. He was arrested for Swetof's killing about 4:30 a.m. When he was arrested, Walsh did not have any cuts or bruises on his body.
Walsh first told the police he had called Swetof's apartment earlier that night, had heard a male voice in the background, fell asleep in his own apartment and later met his wife and went to Denny's. Later he confessed to killing Swetof and told the police where he had thrown the knife and rolling pin. Following his arraignment, Walsh contacted the police. He told them he had confessed only because he was covering up for someone.
The Solicitations to Commit Perjury
Walsh solicited Seth and Gail Eberhardt to falsely testify they had seen Walsh and his wife at Denny's at 8:00 p.m. on the night of the homicide and that his wife appeared to have blood on her hands and face. Walsh was acquitted of another count of solicitation to commit perjury.
DISCUSSION
IImplied Malice Instruction
Walsh contends the trial court erred in refusing to give his requested instruction defining implied malice. Walsh's instruction stated:
“Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, coupled with an actual appreciation of the high degree of risk involved. A base, anti-social purpose and design, and a wanton and conscious disregard for human life are required before malice may be implied.”
The trial court instructed the jury on implied malice using CALJIC No. 8.11 providing, in pertinent part:
“Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose, and with a wanton disregard for human life, or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”
CALJIC No. 8.11 is derived from People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279. In Watson, the Supreme Court held “a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.” (Id. at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279, italics in original.) The Supreme Court then went on to explain:
“[S]econd degree murder based on implied malice has been committed when a person does ‘ “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ ”․' [Citations.] Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]” (Id. at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)
The CALJIC instruction echoes the Watson language but uses the disjunctive “or;” the instruction does not make it clear the second definition is just another way of saying the same thing “[p]hrased in a different way.” The CALJIC instruction also does not make it clear the jury must use a subjective standard and determine the defendant actually appreciated the high degree of risk involved. The CALJIC instruction obscures the need for finding the defendant actually appreciated the high degree of risk before finding implied malice by using the phrase “wanton disregard for human life” which does not necessarily convey to an average juror the concept of a subjective realization of the risk involved. “Wanton” is not a word in common speech and when used the word is used most frequently in its connotations of extravagance or sexuality.3 Nor does the word “disregard” convey conscious appreciation; indeed the word is defined as meaning “to pay no attention to: treat as unworthy of regard or notice.” (Webster's New Collegiate Dict. (1987) p. 366.)
Walsh's proffered instruction was a correct statement of the law and defined implied malice more clearly than does CALJIC No. 8.11 which allows a jury to find implied malice without necessarily finding the defendant subjectively appreciated the risk involved. The trial court erred in refusing Walsh's requested instruction defining implied malice. We conclude, however, that the court's error in refusing Walsh's instruction does not require reversal.
Walsh argues the testimony of his expert witness, clinical psychologist Alvin Marks, established his lack of malice and therefore the failure to give his requested instruction was prejudicial. We disagree.
Marks testified Walsh was suffering from “an isolated explosive” or “a disorder of impulse control.” Marks testified “[i]n isolated explosive disorder people, the tension builds over a long, long time, and they're not able to discharge it appropriately. And that's why the explosion.” Marks explained such a person “is unable to resist an impulse that's going to harm himself or others; that there's an increasing amount of tension before the act is committed; and that there is some release of that tension afterward, whether the person feels bad or not. Those are the basic elements.” Defense counsel asked Marks whether a person with such a disorder would necessarily specifically intend to hurt or kill an individual during the time of the explosion. Marks responded “While they're exploding and doing something—and I don't mean this in a legal sense—they certainly intend to do what they're doing, but they're not being rational or have any ability to control it once the explosion starts.” In response to the question of whether a person during an explosion could “weigh the probability of his acts resulting in the death of the victim,” Marks stated “The probability, I don't know. He knows what he's doing. But the consequences, the rational consequences—the rational thinking is not there during the explosion.” Marks later testified he considered a person's being aware they are hurting another person during the explosion itself was “substantially different” from being able to reasonably weigh the consequences of what they are doing.
This testimony was offered to negate premeditation and deliberation, i.e., to show Walsh acted as a result of an impulsive explosion. It does not, however, negate malice. Marks's testimony indicated someone with an explosive disorder intends to harm or kill their victim and is aware of what they are doing during the course of the explosion. Contrary to Walsh's assertion, Marks's testimony about the inability to weigh the consequences of their actions is not addressed to showing the individual lacked an actual appreciation of the risk of death or grievous injury and thus had no malice but to showing there was no premeditation and deliberation. (See People v. Anderson (1968) 70 Cal.2d 15, 26–27, 73 Cal.Rptr. 550, 447 P.2d 942, listing types of evidence to support an inference “the killing was the result of a ‘pre-existing reflection’ and ‘careful thought and weighing of considerations' rather than ‘mere unconsidered or rash impulse hastily executed’ ” and therefore was premeditated and deliberated.) In other words, Marks's testimony if believed by the jury (as it apparently was) reduced the killing from first to second degree murder but not to manslaughter or less.
To reduce the killing from murder to manslaughter, Walsh relied primarily on a heat of passion defense and secondarily on an “imperfect” self defense (an honest but unreasonable belief in the need to defend one's self). Under both these defenses, the intent to kill is admitted but the crime is mitigated from murder to manslaughter because of the provocation, provocation giving rise to a heat of passion or a perceived need for self-defense. Thus, the error in giving CALJIC No. 8.11 rather than Walsh's requested instruction did not prejudice Walsh's defense.
Finally, we note the prosecutor here in his closing argument told the jury implied malice can be shown when there is “an intentional act involving a high degree of probability that that act will result in death, and the actor knows that that act endangers the life of another.” (Italics added.) The prosecutor did not attempt to mislead the jury into believing it was not necessary to find Walsh actually appreciated the risk of death or grievous injury before convicting him of murder, rather the prosecutor stated the jury had to find Walsh knew his acts endangered Swetof's life. This argument to the jury helped to minimize the confusion caused by CALJIC No. 8.11. (See People v. James (1987) 196 Cal.App.3d 272, 290–291, 241 Cal.Rptr. 691.)
In sum, we conclude since there is no evidence in the record Walsh did not appreciate that his repeated stabbing and bludgeoning of the victim created a risk of grievous injury or death to the victim, the court's refusal to give his requested instruction on implied malice caused no prejudice.
II
Massiah 4 Error
Walsh contends the court committed Massiah error in admitting his post-arraignment statements to the police.
Under the Massiah rule, after formal criminal proceedings have commenced against the defendant and counsel has been appointed to represent him, police-initiated interrogation is absolutely barred. (People v. Duck Wong (1976) 18 Cal.3d 178, 185, 133 Cal.Rptr. 511, 555 P.2d 297; People v. Moore (1985) 166 Cal.App.3d 540, 546, 211 Cal.Rptr. 856; In re Michael B. (1981) 125 Cal.App.3d 790, 793–794, 178 Cal.Rptr. 291; People v. Isby (1968) 267 Cal.App.2d 484, 73 Cal.Rptr. 294.) The Massiah rule protects an individual's Sixth Amendment right to counsel; it “serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated.” (United States v. Henry (1980) 447 U.S. 264, 276, 100 S.Ct. 2183, 2190, 65 L.Ed.2d 115 (conc. opn. of Powell, J.); accord Maine v. Moulton (1985) 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481; People v. Houston (1986) 42 Cal.3d 595, 602, 230 Cal.Rptr. 141, 724 P.2d 1126; People v. Dominick (1986) 182 Cal.App.3d 1174, 1198, 227 Cal.Rptr. 849.) The Massiah rule, however, does not prohibit the admission of statements which the defendant made to the police after formal adversarial proceedings have begun if the accused “specifically requests an opportunity to speak to the police, is Mirandized, is advised that he [or she] has counsel and that counsel opposes [the] request to talk and he [or she] still chooses to do so.” (People v. Dickson (1985) 167 Cal.App.3d 1047, 1057, 213 Cal.Rptr. 722.) The Dickson court explained: “The right to receive advice and assistance from counsel is not the right to reject the advice and then avoid the consequences.” (Ibid.)
Here, Walsh, after he was arraigned, called Detective Cunningham from the jail and said he needed to talk. Detective Cunningham met Walsh later that day at the jail. At the outset of the meeting, Detective Cunningham told Walsh that since he had been arraigned, Walsh had counsel. Walsh expressed some confusion as to whether he then had a lawyer since the attorney who had represented him at the arraignment told him he was not Walsh's assigned counsel and Walsh believed an attorney was going to be appointed later that day by the Navy. Cunningham again told Walsh that since he had been arraigned, Walsh had an attorney, “at least technically” and then gave Walsh his Miranda warnings. When Detective Cunningham asked Walsh if he wanted to waive his rights, Walsh hesitated, saying “I just, uh, feel very uncomfortable talking without, I, I don't, I don't if I really all the way know my rights.” Detective Cunningham asked if Walsh had a question about his rights. Walsh answered: “No, um, I just want to say really basically, I'm sorry I dragged both of you down here. There's just one, some one thing I would kinda want to say. Um, you know I really don't want to say anything until I talk to some assistance.”
This statement by Walsh, as found by the trial court below, was a request for counsel, albeit an equivocal request. At this point the police should have terminated the conversation. Walsh by his statement made it apparent he was not insisting on speaking to the police without the assistance of counsel. By not terminating the conversation and by initiating further conversation after Walsh made it apparent he was not and had not been intending to speak to the police without counsel being present, the police violated the Massiah rule and interfered with Walsh's Sixth Amendment right to consult with counsel. The statements should have been suppressed.5
The question remains whether this error requires reversal. During the post-arraignment interview, Walsh stated he confessed to killing Swetof only because he was covering up for somebody else and implicated that somebody else was his wife, Cheryl. Walsh asserts the introduction of these statements were prejudicial because they “showed [him] as willing to incriminate his wife in order to exculpate himself, thus undermining his strategy of portraying himself as the victim of forces outside his control.” This may be true but the prejudicial impact of these statements pales in light of overwhelming other evidence of Walsh's attempts to cover up the crime and implicate others. This evidence included: his misidentifying himself as “Ken” and “Gregg” and lying about Swetof's whereabouts to the people who called Swetof's apartment during the crime; his removal of the murder weapons from the scene; his attempts to dispose of the murder weapons by throwing the knife in the bushes and the rolling pin out the window of his car; his disposal of the clothes he wore during the killing; his initial denial of killing Swetof with an implication Swetof's husband was the killer; and his solicitations to commit perjury by asking two people to give him an alibi and to implicate his wife as the killer. Under these circumstances, the error in admitting Walsh's post-arraignment statements to the police was harmless beyond any doubt.
III
Solicitations to Commit Murder
Walsh contends there is insufficient evidence to sustain his two convictions for solicitation to murder Swetof. We agree.
The seminal California case discussing whether single or multiple convictions for solicitation are proper is People v. Cook (1984) 151 Cal.App.3d 1142, 199 Cal.Rptr. 269. Treating the question as one of fact, the court eschewed any attempt to “set forth a definitive test by which to determine in every case whether there has been only a single solicitation.” (Id. at p. 1146, 199 Cal.Rptr. 269.) According to the court, “with respect to solicitation of murder, if the evidence and the reasonable inferences from that evidence establish that the solicitee has been asked to commit separate and distinct acts of murder, that evidence is sufficient to establish separate solicitations.” (Ibid.) Observing that the facts before it showed defendant had solicited the murders of multiple specific victims who were to be killed for different motives and possibly at different times and places, the court held the evidence supported convictions for multiple solicitations. (Id. at p. 1147, 199 Cal.Rptr. 269.)
In People v. Morocco (1987) 191 Cal.App.3d 1449, 237 Cal.Rptr. 113, this court faced the same issue with the added complication that the jury had not been instructed to decide the matter. Observing the analogy between solicitation and conspiracy, we held “the jury should be instructed to consider whether the multiple crimes requested by the defendant were part of a ‘larger, all-inclusive’ plan with a single objective and/or motive. [Citations.]” (Id. at p. 1453, 237 Cal.Rptr. 113.) Rather than reversing for retrial, we ordered the conviction for one count of solicitation stricken since the evidence, even when viewed in the light most favorable to the prosecution, established only a single solicitation. That evidence was “[t]he potential victims were a husband and wife. They were to be killed at the same time, presumably by the same means” and “[the record contains] no suggestion of an independent motive or objective as to each victim.” (Id. at p. 1454, 237 Cal.Rptr. 113.)
People v. Miley (1984) 158 Cal.App.3d 25, 204 Cal.Rptr. 347, is the pertinent case most factually similar to the one at hand. Miley solicited an undercover officer to kill his estranged wife at her home and to make it look like rape or robbery. He instructed the “hit man” to kill his wife's two daughters as well if they were on the scene. On defense motion, the trial court consolidated six charges of solicitation (three murders, a rape, a robbery and a burglary) to a single count. Citing Cook, the court in dicta approved the consolidation saying the solicited crimes were “all part of one package; each offense would be consummated (or not) depending upon the circumstances encountered by the solicitee.” (Id. at p. 31, fn. 4, 199 Cal.Rptr. 269.)
As in Miley, Walsh here stated Swetof should be killed if she was there or got in the way. As in Morocco, Swetof's killing was to occur at the time and place set for Cheryl's murder. There is no indication Walsh had a separate plan for killing Swetof, that she should be killed at a different time or place or by different means. Nor, unlike Cook was there any evidence suggesting Walsh had a separate motive for killing Swetof. Before Walsh's marital problems, he had been friendly with Swetof. In the course of his solicitations for the murder of his wife, Walsh did not mention Swetof to some of his shipmates and mention of her was only incidental and in connection with his marital problems.
As in Morocco, we conclude that, even viewing the evidence most favorably for the prosecution, the facts do not support conviction for more than one charge of solicitation. Accordingly, we order stricken the two solicitations for murder relating to Swetof.
DISPOSITION
Except for Walsh's convictions for solicitation to commit murder in counts three and five which we order stricken, the judgment is affirmed.
I concur in the result. However, as to part III of the opinion, I do so only under the compulsion of People v. Morocco (1987) 191 Cal.App.3d 1449, 237 Cal.Rptr. 113.
The conclusion reached here with respect to striking the solicitations is governed by this court's recent decision in People v. Morocco (1987) 191 Cal.App.3d 1449, 237 Cal.Rptr. 113. There, we applied the analogy of conspiracy to the offense of solicitation to commit murder and in so doing concluded the existence of multiple solicitations depends upon whether the multiple crimes were part of a larger, all inclusive plan with a single objective or motive. As is clear in this case, application of Morocco leads to the inescapable conclusion that, as a matter of law, a single solicitation necessarily results where although specific victims are actually named, the motive, place, time and means of death are or appear to be the same.
Although we are not legally compelled to adhere to recent existing authority originating in our own division, strong concerns militate in favor of our doing so. (9 Witkin, Cal. Procedure (3d 1985) Appeal, § 773, p. 742.) Recognizing the considerations involved, I concur in the result reached herein with respect to striking the solicitations to murder Tammy Swetof. I do so however with reluctance.
Our decision in Morocco is premised upon People v. Cook (1984) 151 Cal.App.3d 1142, 199 Cal.Rptr. 269, which in turn is squarely premised upon Meyer v. State (1981) 47 Md.App. 679, 425 A.2d 664. I find neither Cook nor Meyer accepting of the analogy embraced by Morocco. Indeed, Meyer indicates that while the analogy is helpful where there has been a criminal request which may result in unnamed multiple victims (i.e., the solicitor asks solicitee to “blow up that building” and hopes A and B will be killed), it is not helpful to the issue presented there and which is presented in this case, i.e., whether more than one solicitation occurs when another is requested to kill specifically named individuals. In such cases “there is not a single incitement but multiple ones, each punishable on its own.” (Meyer v. State, supra, 425 A.2d at p. 670, emphasis added.) Cook echos this conclusion. (People v. Cook, supra, 151 Cal.App.3d at p. 1146, 199 Cal.Rptr. 269.)
Neither Meyer nor Cook precludes a finding of multiple solicitations merely because factors such as differing motive and method of death are not present. Indeed, Meyer and Cook state only that it is “possible” such factors as motive, time and place may be different, they do not hold these factors must be different to sustain more than one solicitation.
While Cook and Meyer do point to evidence concerning different motives and modes of death, they do so only in the context of supporting the conclusion in each of those cases that there is more than one solicitation involved. While purporting not to do so, in applying the conspiracy analogy, Morocco converts supporting evidentiary factors such as motive (i.e., an overriding plan or goal) into a test which if not met, precludes a finding of multiple solicitations. This unnecessarily excludes situations such as this, which should be left to the fact finder for determination as to the existence of the offense and number of offenses.
Where the deaths of specific individuals have been sought out, the presence of multiple solicitations should not depend upon whether the multiple deaths will carry out some overall plan or whether the solicitor has had the accidental good fortune to have planned his murders expeditiously with a unity of time, place and manner of death. (Cf., People v. Miley (1984) 158 Cal.App.3d 25, 204 Cal.Rptr. 347.)
FOOTNOTES
FN1. All references are to the Penal Code unless otherwise indicated.. FN1. All references are to the Penal Code unless otherwise indicated.
2. Walsh testified his wife had admitted before their separation to having an affair with Swetof.
3. Webster's New Collegiate Dictionary (1987) page 1327, defines “wanton” as follows: “1a archaic: hard to control: undisciplined, unruly b: playfully mean or cruel: mischievous 2a: lewd, bawdy b: causing sexual excitement: lustful, sensual 3a: merciless, inhumane <—cruelty> b: having no just foundation or provocation: malicious 4: being without check or limitation: as a: luxuriantly rank <—vegetation> b: unduly lavish: extravagant.”
4. Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.
5. The trial court in ruling there was no Massiah violation, noted the police did not know whether a particular named individual had been appointed to represent Walsh and that Walsh “was under the impression that his individual lawyer had not yet been appointed. [¶] So as far as he was concerned subjectively, he was in the frame of mind of anybody who is given Miranda warnings, and he was in fact given Miranda warnings and he said he waived. So as far as the defendant was concerned, he did subjectively and objectively all that one need do to waive his right to counsel at that particular moment.”The Massiah rule has never been held to turn on whether a defendant or the police can produce the name of the defendant's attorney. The Massiah turns on whether formal adversarial proceedings have commenced and counsel has been appointed. As the United States Supreme Court has explained: “The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.” (Maine v. Moulton, supra, 474 U.S. 159, 176, 106 S.Ct. 477, 487.) The Massiah rule is based not on any impropriety on the part of an officer, who may be acting properly, but on the interference with the defense attorney. (People v. Superior Court (Sosa) (1983) 145 Cal.App.3d 581, 593, 194 Cal.Rptr. 525.) Here, formal adversarial proceedings had begun, i.e., Walsh had been arraigned, and the police knew that. Further, even ignoring the Massiah violation of Walsh's Sixth Amendment right to counsel, the evidence should have been excluded under the Miranda rule protecting his Fifth Amendment right not to be compelled to incriminate himself. Under Miranda, once an individual requests an attorney to assist him, even equivocally, all further questioning must cease. (People v. Ghent (1987) 43 Cal.3d 739, 750, 239 Cal.Rptr. 82, 739 P.2d 1250.) Here, since Walsh indicated immediately after the Miranda warning that he did not want to talk until he had some assistance, the conversation should have terminated. The detective's further attempt to get Walsh to waive his right to assistance of counsel (reminding him he could reassert his right to an attorney later on) was invalid. (Id. at p. 750, 239 Cal.Rptr. 82, 739 P.2d 1250.)
KREMER, Presiding Justice.
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Docket No: No. D005082.
Decided: April 14, 1988
Court: Court of Appeal, Fourth District, Division 1, California.
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