Auclair v. State

• Decision Date: 21 March 1983
• Docket Number: No. 5775,5775
• Citation: 660 P.2d 1156
• Parties: Paul AUCLAIR, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1156

660 P.2d 1156

Paul AUCLAIR, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 5775.

Supreme Court of Wyoming.

March 21, 1983.

Sylvia Lee Hackl, State Public Defender, Gerald M. Gallivan, Director, Wyo. Defender Aid Program; Laramie, and Kurt C. Weiss, Intern (argued), signed the brief on behalf of appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., and Thomas T.C. Campbell, Intern (argued), signed the brief on behalf of appellee.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

RAPER, Justice.

Paul Auclair (appellant) was found guilty by a jury and sentenced on three criminal counts ¹ arising from an incestuous relationship he engaged in with his thirteen year-old daughter. During the trial the transcript of a recorded telephone conversation between appellant and his daughter, held before appellant was arrested, was introduced and received into evidence by the trial judge over his objection. Appellant raises on appeal the following issue:

"Was the appellant[']s Sixth Amendment right to counsel denied by the use and introduction into evidence at trial, of the transcript of a telephone conversation between appellant and his daughter, when that phone call was recorded after the initiation of formal judicial proceedings and without appellant[']s knowledge?"

We will affirm.

On October 23, 1981, appellant's daughter contacted a social worker from the Wyoming Department of Public Assistance and Social Services (DPASS) and revealed to him that her father (appellant) had, for the past several months, engaged in an incestuous relationship with her. She, later that day, told the same story to Powell Chief of Police, Bob Coorough. After the initial interview, DPASS placed appellant's daughter in a foster home. On October 24, 1982, a criminal complaint alleging appellant had violated § 6-5-102, W.S.1977--Wyoming's incest statute--was made and filed by Chief Coorough pursuant to Rule 3, W.R.Cr.P. On the same date, an arrest warrant was issued by the justice of the peace pursuant to Rule 4, W.R.Cr.P. for the arrest of appellant.

On October 25, 1981, appellant, by his own account, voluntarily went to the Powell police station where Chief Coorough informed him of the allegations made by his daughter. Chief Coorough, prior to any conversation with appellant at the police station, insured that appellant was aware of his constitutional rights--per Miranda. He then proceeded to interview appellant about his daughter's allegations. During the interview, appellant complained that, since DPASS had taken his daughter, he had been unable to talk to her and would like to do so to clear up the matter. At the conclusion of the interview, despite the fact that a warrant had issued against him, appellant was allowed to go home. ² The interview was not objectionable to appellant who, at trial, offered a transcript of that interview, which was received in evidence.

On October 26, 1981, at the request of Chief Coorough, appellant's daughter was examined by a physician to determine if there was evidence that would corroborate her allegations. The examination revealed, in the opinion of the physician, that appellant's thirteen year-old daughter had previously, and on more than one occasion, had sexual intercourse with an adult male. There was medical evidence that prior to returning to live with her father she had not yet engaged in sexual intercourse. Chief Coorough later testified that, in his mind, the physical examination further substantiated the allegations made by the little girl against appellant.

Also on the 26th, Chief Coorough arranged for appellant's requested conversation with his daughter. Appellant was not allowed to speak with her in person but was allowed to talk to her by telephone. She spoke from a social services office in Powell. The conversation was tape recorded at the request of the police. There is nothing in the record to indicate that the police instructed appellant's daughter what to say to her father other than it was requested that she not let her father know that the conversation was being taped. She was instructed to deny that the call was being taped if her father questioned that fact. During the conversation, in the face of denials by his daughter, appellant indicated his awareness that the conversation was being taped and indicated that he really did not care whether it was taped or not. The transcript reveals no instance where appellant ever admitted any criminal wrongdoing, although the State, in its zeal, apparently believed selected passages were incriminating. ³

After all of the foregoing took place, appellant was finally arrested during the evening of October 26th. He appeared initially before a justice of the peace October 27, 1981. From that time on he has been represented by a public defender.

A transcript of the recorded telephone conversation between appellant and his daughter was introduced by the State at trial as State's Exhibit 23, and was objected to on the grounds that it was unfair and obtained as the result of an illegal wiretap. The objection was ultimately overruled and the transcript of the telephone conversation was received into evidence. During the State's cross-examination of appellant, certain allegedly incriminating passages in portions of the transcript were alluded to.

Appellant now on appeal raises a Sixth Amendment objection to the evidence in question when no objection on that ground was raised at trial. At trial, the transcript of the telephone conversation was objected to on the ground that it was the product of an illegal wiretap--a Fourth Amendment issue. That, of course, was not on valid ground and the objection was properly overruled. See, Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), reh. denied 386 U.S. 951, 87 S.Ct. 971, 17 L.Ed.2d 880 (1967). ⁴ Rule 103, W.R.E. ⁵ requires us, where new grounds for objecting to the admission of evidence are raised on appeal, to consider whether plain error nullified the conviction. 1 Louisell and Mueller, Federal Practice §§ 8 and 21 (1977). We, therefore, take up the Sixth Amendment issue to determine if plain error occurred.

We have recently set out the three-part test to determine if plain error exists:

" * * * First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced. * * * " Bradley v. State, Wyo., 635 P.2d 1161, 1164 (1981).

In this case we turn our attention only to the second requirement and look to see if appellant's right to counsel was violated since the record is clear as to the incident alleged as error. We do not dispute that the right involved is substantial. If a violation of appellant's right to counsel is found, we have indicated that it is such a basic right that its violation can never be treated as harmless error. Chavez v. State, Wyo., 604 P.2d 1341, cert. denied 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1979) (following Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). We note, however, the following language from Holloway:

"Moreover, this Court has concluded that the assistance of counsel is among those 'constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.' Chapman v. California, supra [386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ], at 23. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963)." 435 U.S. at 489, 98 S.Ct. at 1181.

In the instant case we are not confronted with the prosecution of a capital offense nor does the claimed deprivation of the right to counsel here arise out of any conflict of interest among several defendants who have been required to be jointly represented by one attorney. We turn our attention then to determine if the trial court violated appellant's Sixth Amendment right to counsel by its ruling to receive the transcript of the telephone conversation into evidence.

The Sixth Amendment to the United States Constitution guarantees that: "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." ⁶ Appellant argues here that this right to counsel accrued after an arrest warrant issued but before his arrest occurred. We disagree.

Rule 6, W.R.Cr.P. sets out when an indigent's right to assignment of counsel accrues under our rules:

"Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such appointment."

That rule, as we shall show, though relating only to assignments of counsel, states the general view as regards the Sixth Amendment right to counsel of all criminal defendants. In Chavez v. State, supra, this court summarized the then-existing state of Sixth Amendment jurisprudence. Little has changed to expand that right since then.

The Sixth Amendment has been made applicable to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963). The basic contours of the right are identical in both state and federal contexts. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, ...