Cahill v. Rushen

• Decision Date: 02 June 1982
• Docket Number: No. 81-4009,81-4009
• Citation: 678 F.2d 791
• Parties: James Thomas CAHILL, Petitioner-Appellee, v. Ruth RUSHEN, Director, California Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 791

678 F.2d 791

James Thomas CAHILL, Petitioner-Appellee, v. Ruth RUSHEN, Director, California Department of Corrections Respondent-Appellant.

No. 81-4009.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 14, 1981.

Decided June 2, 1982.

Shirley A. Nelson, Deputy Atty. Gen., Sacramento, Cal., for respondent-appellant.

Mark L. Christiansen, Deputy State Public Defender, Sacramento, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before WALLACE and SCHROEDER, Circuit Judges, and HENDERSON, ^* District Judge.

SCHROEDER, Circuit Judge:

Appellee James Cahill was convicted of first degree murder in California state court in February 1975, after a trial in which his confession to a police officer was admitted into evidence. After exhausting available state remedies, Cahill petitioned the court below for a writ of habeas corpus under 28 U.S.C. § 2254. The district court granted the writ on the ground that the State had interfered with Cahill's sixth amendment right to counsel. Cahill v. Rushen, 501 F.Supp. 1219 (E.D.Cal.1980). We affirm because we conclude that the confession was "deliberately elicited from him after he had been indicted and in the absence of his counsel." Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964).

FACTS

In 1972 Cahill was arrested on suspicion of murder in connection with the death of an accomplice in a check forgery scheme. Beginning soon after his arrest, Cahill, without the assistance of counsel, was questioned by Captain Carter of the Shasta County Sheriff's Office on at least four separate occasions. He was apprised of and waived his Miranda rights on the first three occasions; on the fourth, which took place the day the indictment was handed down, Miranda warnings were not given. Cahill expressed a desire for counsel during that interview, but when it proceeded, promised that after trial he would tell the captain all that had transpired at the scene of the crime.

The day after Cahill was convicted and sentenced, Captain Carter had him brought from the jail to the Sheriff's Office. The captain did not offer Cahill an opportunity to consult with his attorney, did not give Miranda warnings, and did not inform Cahill's attorney that the meeting was to take place. Cahill confessed to the crime, expressing his belief that a confession at that point could have no adverse consequences. It was this confession that was admitted into evidence at the subsequent trial, which resulted in the conviction challenged here.

Cahill's first conviction was reversed on appeal because the principal witness was another accomplice who was present at the scene of the crime, and no accomplice instruction had been given to the jury. ¹ Cahill was then rearraigned and retried under the same outstanding indictment. The trial court denied his motion to suppress the confession.

At the retrial, the accomplice again testified for the prosecution. In addition, Captain Carter testified regarding the confession. The jury returned a verdict of guilty. Cahill exhausted state remedies before filing this habeas petition. The State appeals from the district court's judgment granting the writ.

DISCUSSION

The narrow question presented is whether the interview with Captain Carter violated Cahill's right to counsel, thus rendering the confession inadmissible.

It is by now well settled that the sixth and fourteenth amendments bar the use at a subsequent trial of incriminating statements which the government has deliberately elicited from the defendant after indictment and in the absence of counsel. United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115 (1980); Rhode Island v. Innis, 446 U.S. 291, 300 n.4, 100 S.Ct. 1682, 1689 n.4, 64 L.Ed.2d 297 (1980); Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977); Massiah, supra, 377 U.S. at 207, 84 S.Ct. at 1203.

This case falls squarely within that rule. At the time of the confession Cahill had been arrested, arraigned, and indicted; thus, the right to counsel clearly had attached. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion). The confession was "deliberately elicited" by Captain Carter, as the state properly conceded at oral argument. Finally, it is undisputed that Cahill's counsel was not only absent, but completely unaware that the meeting was to take place.

Thus the only question remaining for resolution is whether the analysis or the conclusion compelled by Massiah is in any way affected by the fact that when the interview took place, Cahill had been convicted and sentenced for the first time and the confession therefore was admitted not at the first trial but upon retrial.

The State and the dissent treat this case as though the question presented were whether the right to counsel "extends beyond" the first trial. We believe such an approach is fundamentally flawed. While the interview occurred after the first trial and before the first appeal, Cahill does not complain of anything that happened at that trial, nor is he asserting any right to counsel in connection with an appeal. He complains of the admission of his confession at the second trial. The question before us, then, is whether the interview with Captain Carter violated Cahill's right to counsel with respect to the second trial. We therefore do not view the case in terms of an "extension" of the right to counsel after a first trial. Rather, we must focus on the need to preserve the protections of the sixth amendment in any trial in which conviction might result.

The right to counsel is vital to the fair administration of our adversary system of criminal justice. "Whatever else it may mean, the right to counsel ... means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him-' whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " Brewer, supra, 430 U.S. at 398, 97 S.Ct. at 1239, quoting Kirby, supra, 406 U.S. at 689, 92 S.Ct. at 1882.

The right to counsel reaches anything necessary to assure a meaningful defense. United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967).

(I)n addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.... It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and ability of counsel to help avoid that prejudice.

Id. at 226-27, 87 S.Ct. at 1931-32 (emphasis added) (footnotes omitted); Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970) (plurality opinion).

When as here, a confrontation occurs prior to trial, the Supreme Court has sanctioned a retrospective evaluation. The issue is whether the "interview proved to be a 'critical stage' of the aggregate proceedings against (the defendant)." Estelle v. Smith, 451 U.S. 454, 471, 101 S.Ct. 1866, 1877, 68 L.Ed.2d 359 (1981) (emphasis added). When that test is applied here the answer must be in the affirmative.

The decision of the Supreme Court in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), supports affirmance here, not reversal as contended by the State. That case held that a post-indictment photographic display for purposes of identification was not a "critical stage" of the prosecution such that defendant was entitled to the presence of counsel. The Court considered whether counsel could have been of much assistance to the defendant at the display and concluded he could not, contrasting the situation in Massiah, where "counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution." Id. at 312, 93 S.Ct. at 2575. ² This situation is like Massiah, not Ash. We must look to the function of counsel and the role to be played at the event in question. As the Supreme Court has stated, the sixth amendment requires that counsel "be provided to prevent the defendant himself from falling into traps ...." Id. at 316-17, 93 S.Ct. at 2577, quoting United States v. Bennett, 409 F.2d 888, 899-900 (2d Cir. 1969). Cahill fell into a trap. Even a brief consultation with his attorney would have corrected Cahill's erroneous impression that a confession at that point could have no adverse consequences.

The State nevertheless argues that the right to counsel which had attached at the time of indictment was cut off by the first conviction and sentencing, ³ and was not resurrected until Cahill had been rearraigned. Under the State's theory there were in effect two separate prosecutions, and this interrogation occurred after the first had ended but before the second had begun. This mechanical view has no sound basis. We point out by way of analogy that under double jeopardy analysis, a second trial is viewed as a continuation of the original proceeding. ⁴ At the time of the interview Cahill's conviction was not yet final, as subsequent developments demonstrated. He had been indicted and continued in custody. There is no justification for the creation of a temporal hiatus in the right to counsel. Indeed, Cahill's promise to tell all had been evoked by Captain Carter at the time of indictment, so the police conduct in eliciting the confession actually began well before the first trial.

The danger in this case, which the sixth and fourteenth amendments guard against, is that governmental overreaching will render any subsequent trial a mere formality. As the district court recognized, if the right to the assistance of counsel evaporates upon...