Best v. State

• Decision Date: 08 May 1987
• Docket Number: No. 86-83,86-83
• Citation: 736 P.2d 739
• Parties: Joseph Newton BEST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 739

736 P.2d 739

Joseph Newton BEST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-83.

Supreme Court of Wyoming.

May 8, 1987.

Leonard D. Munker, State Public Defender; Julie D. Naylor, Appellate Counsel; Gerald Gallivan and John D. Whitaker, Wyoming Public Defender Program, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

This appeal, taken from a conviction of attempted first degree murder, presents two issues for review and resolution. The first claim of error is that statements obtained during custodial interrogation should have been suppressed because of the refusal to furnish counsel to the accused upon request. The second claim of error is that the trial court improperly denied requested instructions on the defendant's theory of the case which was self-defense. We hold that the trial court correctly concluded that there had been a valid waiver of the right to counsel prior to the inculpatory statements, and the evidence submitted does not support the claimed theory of self-defense. The judgment and sentence is affirmed.

Joseph Best, in his attempt to gain reversal of a life sentence for attempted first degree murder, articulates the issues in his appeal in this way:

"1. Whether the refusal to provide a lawyer after one is requested during custodial interrogation should prohibit the use at trial of any statement taken as a result of such interrogation.

"2. Whether a defendant has an affirmative right to have the jury instructed as to his theory of the case when his theory is demonstrated by competent evidence at trial."

While obviously identifying the same issues, the State of Wyoming, in its brief, states them as follows:

"1. Did the trial court err in admitting appellant's statements, since appellant never invoked his right to counsel before voluntarily talking to the officers?

"2. Did the trial court err in refusing appellant's instructions regarding self-defense, since there was no competent evidence to support such instructions?"

On a Saturday evening, Joseph Best shot Wyoming Highway Patrolman Lawrence Szabo twice. It was a fortuity that the highway patrolman was not fatally wounded or did not die from the wounds inflicted. This shooting took place when the highway patrolman finally succeeded in stopping Best after a high-speed chase which was initiated on an interstate highway when the patrolman attempted to stop Best for speeding. In attempting to escape from the officer, Best drove onto a county road and, ultimately, he was stopped by the efforts of the officer and because of a blown-out tire when he attempted to return to the interstate highway after turning around and successfully driving past the highway patrol vehicle.

Best succeeded in avoiding apprehension and, in the vicinity, stole a pickup truck which he drove to Colorado. The next day he was arrested at a motel in Colorado, and subsequently, he was interviewed by Colorado law enforcement officers. It was at this time that the inculpatory statements, which Best seeks to have suppressed, were obtained. The following day, Monday, a criminal complaint was filed charging Best with attempted first degree murder in violation of §§ 6-2-101 and 6-1-301, W.S.1977, as amended. Section 6-2-101, W.S.1977, proscribes the offense of first degree murder and provides for punishment of "death or life imprisonment according to law." Section 6-1-301, W.S.1977, proscribes attempts to commit crimes, and § 6-1-304, W.S.1977, provides that the penalty for attempt is the same as the penalty for the crime itself except that the death penalty cannot be imposed if the capital crime actually is not committed.

Following extradition from Colorado to Wyoming, Best was tried by a jury for the charged offense of attempted first degree murder. He was found guilty by verdict of the jury, and the judgment and sentence imposed a sentence of life imprisonment. Best now appeals from that judgment and sentence.

In pursuing his claim that the inculpatory statements should have been suppressed, Best invokes both the Fifth and Sixth Amendments to the United States Constitution and Art. 1, §§ 10 and 11 of the Wyoming Constitution. The critical interrogation occurred prior to the filing of criminal charges against Best, and for that reason, his rights under the Sixth Amendment to the United States Constitution and the parallel provision, Art. 1, § 10 of the Wyoming Constitution, which also affords the right to counsel, are not implicated. A request for counsel made prior to the commencement of adversarial criminal proceedings does not invoke the right to counsel under the Sixth Amendment to the United States Constitution. Brown v. State, Wyo., 661 P.2d 1024 (1983). The same result must pertain under Art. 1, § 10 of the Wyoming Constitution. This view is consistent with that of the Supreme Court of the United States. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, reh. denied 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240 (1977); and the cases cited in Brown v. State, supra.

There is a significant difference between the requirements that counsel be made available under the Fifth Amendment to the United States Constitution and the Sixth Amendment to the United States Constitution and the parallel provisions of Art. 1, §§ 11 and 10 of the Wyoming Constitution. The right to counsel under the Sixth Amendment of the United States Constitution and Art. 1, § 10 of the Wyoming Constitution is not dependent upon any request. Michigan v. Jackson, supra; Brewer v. Williams, supra; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). It is automatic and may only be withdrawn by an express waiver by the accused. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Williams v. State, Wyo., 655 P.2d 273 (1982). If the right to counsel in accordance with the Fifth Amendment to the United States Constitution and the parallel provision of Art. 1, § 11 of the Wyoming Constitution is an issue, however, it is dependent upon a specific request for counsel by the accused. Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

The only constitutional claim that Best can make is an infringement of his right not to be compelled to be a witness against himself or testify against himself in any criminal case in violation of the Fifth Amendment to the United States Constitution and Art. 1, § 11 of the Wyoming Constitution. Our court is committed to the protection of that right, and following the requirements of the Supreme Court of the United States as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), we require appropriate advice with respect to that right including the right to counsel in order to secure the privilege. Dryden v. State, Wyo., 535 P.2d 483 (1975). No further interrogation is permitted after a person in custody has invoked the right to counsel until counsel has been made available or that person voluntarily initiates further communication indicating a desire to waive that right. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh. denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981); Cheatham v. State, Wyo., 719 P.2d 612 (1986); Daniel v. State, Wyo., 644 P.2d 172 (1982); Dryden v. State, supra. In Smith v. Illinois, supra, 469 U.S. at 95, 105 S.Ct. at 493, the Supreme Court of the United States discussed what it described as the " 'rigid' prophylactic rule," of Edwards v. Arizona, supra, and set out a tandem analysis:

" * * * First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 (whether accused 'expressed his desire' for, or 'clearly asserted' his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S., at 444-445, 86 S.Ct., at 1612 (whether accused 'indicate[d] in any manner and at any stage of the process that he wish[ed] to consult with an attorney before speaking'). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, 451 U.S., at 485, 486, n. 9, 101 S.Ct., at 1885, n. 9."

This is substantially the approach this court adopted in Cheatham v. State, supra. The difference between Smith v. Illinois, supra, and Cheatham v. State, supra, is the difference between an express and equivocal or ambiguous request for counsel.

The district court in this case, in accordance with Mayer v. State, Wyo., 618 P.2d 127 (1980), and Dodge v. State, Wyo., 562 P.2d 303 (1977), held a suppression hearing with respect to the statements made by Best. The court then concluded that Best did not invoke his right to counsel, and the statements were made voluntarily. The critical facts are encompassed in the transcript of the dialogue between Best and the interrogating officer in Colorado. In the significant part, that transcript reads:

"MR. BOCK: I'm a peace officer, but before you're asked any questions by a peace officer about crimes involving aggravated assault, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in Court. You have the right to talk with a lawyer before you are questioned and have him present with you during any questioning. If you want a lawyer but you cannot afford to hire a lawyer, a lawyer will be appointed by the court to represent you before you are questioned and be...