City of Tacoma v. Heater, 36384

CourtUnited States State Supreme Court of Washington
Citation67 Wn.2d 733,409 P.2d 867
Decision Date13 January 1966
Docket NumberNo. 36384,36384
PartiesThe CITY OF TACOMA, Respondent, v. Verne L. HEATER, Appellant.

Page 733

67 Wn.2d 733
409 P.2d 867
The CITY OF TACOMA, Respondent,
Verne L. HEATER, Appellant.
No. 36384.
Supreme Court of Washington, En Banc.
Jan. 13, 1966.

Page 734

[409 P.2d 868] E. Albert Morrison, and Ronald L. Hendry, Tacoma, for appellant.

Marshall McCormick, City Atty., Robert R. Hamilton, Francis H. Chapin, Jr., and Edw. J. Guenther, Tacoma, for respondent.

ROSELLINI, Chief Justice.

The defendant was involved in a minor traffic accident. The officers who investigated the accident determined that the defendant was under the influence of intoxicants and took him to the city jail under arrest. The defendant denied that he was under the influence of intoxicating liquor. Upon arrival at the jail, the defendant requested permission to telephone his attorney, but was denied the right to do so.

The police officers then proceeded to administer certain physical and coordination tests to the defendant to ascertain his sobriety. The defendant refused to take a chemical sobriety test. He repeatedly renewed his request to telephone his attorney, but was not permitted to do so because the

Page 735

police department's regulations permit officers to deny to a person charged with an offense involving intoxication the right to make a telephone call until after the expiration of 4 hours following his arrest. 1 Immediately after the tests were administered, the defendant was charged with the offense [409 P.2d 869] of driving while under the influence of liquor. He was not permitted to call his attorney until 4:00 a.m. on the morning following his arrest. The defendant's attorney stated that if he had been called he would have arranged for a blood test to determine the defendant's condition.

A jury found the defendant guilty as charged, and he appeals from the judgment entered on the verdict.

The issue to be determined on this appeal is: Is the denial of a request for permission to contact counsel as soon as a person is charged with a crime involving the element of intoxication, the denial of a constitutional right resulting in irreparable prejudice to his defense?

In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel * * *. Const. art. 1, § 22 (amendment 10).

In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence. U.S.Const. amend. 6.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, it was held that the following portion of the sixth amendment was incorporated into the due process clause of the fourteenth amendment, and is therefore binding upon the states:

Page 736

In all criminal prosecutions the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.

We have followed the rule that where the language of the state constitution is similar to that of the federal constitution, the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to a like provision in the federal constitution by the United States Supreme Court. State v. Schoel, 54 Wash.2d 388, 341 P.2d 481. Consequently, the Gideon case, supra, means that every defendant has a constitutional right to counsel in all criminal prosecutions. The court made no distinction between misdemeanors and felonies insofar as the applicability of this provision is concerned.

A defendant's right to be heard through his own counsel is unqualified. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4.

Prior to the Gideon case, supra, the sixth amendment was not considered a part of the fourteenth amendment. The Supreme Court applied the 'fundamental fair trial' test to ascertain whether a conviction should be set aside where the defendant was deprived of counsel. In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 2, the court stated:

(T)he Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies a inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.

In Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (followed in Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, and Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037),

Page 737

the Supreme Court followed the rule in Betts v. Brady, supra, in finding that the 'fair trial' concept had not been violated.

The 'fair trial' rule created more problems than it solved. It encouraged prisoners throughout the country to ask for reviews by habeas corpus, in the hope that their cases would be reversed.

Betts v. Brady, supra, placed upon trial courts the burden of anticipating what view an appellate court might take in regard to [409 P.2d 870] the 'common and fundamental ideas of fairness and right' in each case; and, the result was that many convictions were set aside in habeas corpus proceedings. This indicated that a definitive rule such as that laid down in the Gideon case, should be formulated to enable trial courts to enter judgments that would not be open to attack by habeas corpus on this ground.

Since the sixth amendment is now part of the fourteenth amendment, the 'fair trial' rule is not determinative of the issue.

In Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, a new test was devised to ascertain when the right to counsel attaches. The right arises at any 'critical stage in a criminal proceeding.' In White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, the Supreme Court held that a preliminary hearing was a 'critical stage' in the Maryland proceeding. The reason for the court's holding appeared to be that a defendant's plea of guilty entered in a preliminary hearing without counsel, could later in the trial on the merits be introduced in evidence against him. Thus, the court found that the preliminary hearing was a 'critical stage' and required counsel to be appointed for the accused for a preliminary hearing.

This is in accord with Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, where state officers held an accused incommunicado for nineteen hours and refused to permit him to make a telephone call to his wife or lawyer until

Page 738

after he confessed. The Supreme Court held that his confession was involuntary and inadmissible under the due process clause of the fourteenth amendment.

In In re Pettit v. Rhay, 62 Wash.2d 515, 383 P.2d 889, we applied the rule of the Hamilton and White cases, supra, in granting a writ of habeas corpus and setting aside a conviction. We held that a 'critical stage in a criminal proceeding' arose at a preliminary hearing where the defendant was denied counsel and the evidence adduced in the preliminary hearing was used to convict him of the charge.

An analogous case to the one at bar is State v. Krozel, 24 Conn.Sup. 266, 190 A.2d 61. A judgment of guilty was set aside, on the ground that the defendant had been denied his constitutional right to assistance of counsel. As in this case, the defendant was arrested on suspicion of driving while intoxicated. He was taken to the police barracks and given sobriety tests, after which he was charged with the offense. The defendant's requests that he be allowed to call his attorney and his wife were denied. This refusal was based on the policy of the police department to forbid any accused suspected of intoxication to make a call or to use a telephone for a 4-hour period after his arrest.

Another case is In re Newbern on Habeas Corpus, 175 Cal.App.2d 862, 1 Cal.Rptr. 80. The defendant was discharged from custody where he was denied an opportunity to procure a blood test on a charge of intoxication and thus was prevented from obtaining evidence necessary to his defense. The court held that this was a denial of due process.

In Winston v. Commonwealth, 188 Va. 386, 49 S.E.2d 611, where the defendant was arrested and jailed for driving while intoxicated, and was not brought before the committing authority for 4 1/2 hours, and where the statute directed that the arresting officer produce the defendant 'forthwith' before a committing authority, the charge had to be dismissed, the court stating at 395, 49 S.E.2d at 615:

It is perfectly apparent, too, from what has been said, that as a result of his illegal detention the defendant has been forever deprived of material evidence which might have supported his claim that he was innocent of the

Page 739

charge under which he was held. According to the undisputed medical testimony, after the lapse of the time during which he was held in jail, a physical examination would have been useless and ineffectual.

And, also, at 397, 49 S.E.2d at 616:

Since the opportunity denied the defendant of producing such evidence cannot[409 P.2d 871] be remedied at a new trial, we are of opinion that the judgment should be reversed and the prosecution dismissed.

In State v. Johnson, 87 N.J.Super. 195, 208 A.2d 444, the court held that detention of a suspected addict for 26 hours and refusal of his request to be examined by his own physician vitiates his conviction on a charge of being under the influence of narcotics. The court stated that:

the denial of an opportunity to be examined by a physician of his own choice, coupled with the 26-hour detention, constituted a deprivation of the right to defend his own liberty guaranteed by Article I, paragraph 1, of the New Jersey Constitution, * * *.

At what time was a 'critical stage' reached in the defendant's case? It was no later than the moment when, immediately after the police officers had conducted their tests for sobriety and had interrogated...

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