Dunn v. State

• Decision Date: 26 June 1985
• Docket Number: No. 248-84,248-84
• Parties: Tommy Wayne DUNN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 561

696 S.W.2d 561

Tommy Wayne DUNN, Appellant, v. The STATE of Texas, Appellee.

No. 248-84.

Court of Criminal Appeals of Texas En Banc.

June 26, 1985.

Mike DeGeurin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Winston E. Cochran, Jr., Ray Fuchs & Joe Magliolo, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

This is an appeal from a conviction of murder. See V.T.C.A. Penal Code, Sec. 19.02(a)(1). The trial court assessed punishment at 99 years confinement in the Texas Department of Corrections, after a bench trial.

On direct appeal the Waco Court of Appeals in an unpublished opinion rejected appellant's contentions that the trial court erred in admitting appellant's written confession into evidence and that the State had failed to sustain its burden of showing that the confession was given knowingly and voluntarily. See Dunn v. State, No. 10-83-100-CR, delivered January 12, 1984.

We granted the appellant's petition for discretionary review in order to determine what appear to be two closely interwoven issues: (a) whether the right of an accused pursuant to Miranda v. Arizona ¹ to have counsel present during custodial interrogation may be invoked by a party other than A brief recitation of the facts of the case is necessary. On the day following his father's death, appellant was contacted by Detective Kent who requested that he come to the Houston Police Department after work. After closing his business, appellant appeared at police headquarters around 6:00 p.m. and was informed by Kent that he was a suspect in his father's murder. He was then given an oral Miranda warning. The evidence shows appellant was in his mid-thirties, a high school graduate with some junior college credits, and a businessman. Kent testified he would not have allowed appellant to leave police headquarters until he participated in a lineup, which occurred around 6:30 p.m. The lineup was completed shortly before 7:00 p.m., and appellant returned to the homicide office with Kent, where he was given a second oral warning of rights under Miranda. Following three hours of questioning by Kent and Detective Dunn, Kent began to type appellant's three-page confession at 10:35 p.m. on October 13, 1981. After appellant read, corrected and initialed the document, he read and initialed a third Miranda warning printed at the top of his confession and signed the confession at 12:17 a.m. on October 14th. At the time he signed his confession, appellant was unaware that police officers had prevented two lawyers from contacting him while he was being questioned.

                the accused;  and (b) whether the failure of law enforcement officials to notify the accused that counsel, who has been retained by a third party or parties, and is close at hand, negates the knowing and voluntary nature of the waiver of the right to presence of counsel pursuant to Miranda and its progeny?   We will reverse the court of appeals
                

The attorneys had not arrived at police headquarters on their own initiative. Appellant's wife contacted attorney Schultz at 10:00 p.m. on October 13th and requested that he go to police headquarters to locate her husband and represent his interests. She became concerned after learning from one of appellant's employees that he had gone to police headquarters after closing his business for the day. Schultz, who had previously represented appellant and his wife in a commercial matter, called attorney Schneider, a criminal law specialist, and asked Schneider to accompany him to the police department. According to Schneider, he immediately phoned Detective Dunn at police headquarters around 10:15 p.m. and told Dunn that he "didn't want them to talk to [appellant] while I was not there and I would be there in a few minutes." In his testimony, Detective Dunn did not recall the details of the phone conversation as recounted by Schneider.

The two attorneys arrived at the homicide office shortly before 11:00 p.m. and immediately talked to Detective Cook who issued them a jail "pass" to see appellant. Upon going to the jail area and presenting the pass, the attorneys were told that appellant was not in jail. Schultz phoned appellant's wife to see if she had heard from appellant or determined his whereabouts, while Schneider returned to the homicide office where Lt. Zoch said that appellant was in an adjacent room being questioned. Schultz rejoined Schneider in the homicide office, and they demanded the right to see appellant. When this request was refused, the attorneys requested Zoch inform appellant they were outside if he desired their assistance. This request was also denied. The attorneys then proposed that appellant be given Schultz's business card, which Zoch refused to do.

Zoch had phoned Assistant District Attorney Holleman to inquire whether the attorneys had a right to see appellant. Holleman advised Zoch that if appellant had waived his right to counsel the attorneys did not have the right to interrupt questioning and talk to appellant. Zoch informed Schneider and Schultz that he was denying their request after having "checked it out with the District Attorney's office." Schneider phoned Holleman and requested that he advise police officers to tell appellant they were there or give appellant the attorney's business card, but Holleman refused. In a last-ditch effort to contact appellant, Schneider used a phone Zoch testified he refused to allow the attorneys to contact appellant because appellant had not asked for legal counsel after being given his Miranda warnings, and "I would not allow [the attorneys] to interfere with the investigation at that point." The following portion of Zoch's cross-examination summarizes his reason for refusing the attorneys' requests:

to send telegrams to the police chief, Detective Dunn, Zoch and to appellant, but the telegrams were never delivered. Appellant signed his confession at 12:17 a.m. on October 14th, and the attorneys were allowed to see appellant at approximately 12:30 a.m.

"Q. So, now, what do you mean by interfere in the investigation?

"A. Well, Detective Kent was conducting an interview with [appellant]. [Appellant] had been advised of his rights and was cooperating. And at that point we saw no reason to upset the boat, so to speak. Now, the gentleman was wanting--he was talking. He was talking freely and willingly, and I saw no point in stopping the investigation at that point.

"Q. You thought that perhaps, if he had an opportunity to consult with his lawyer, that he might break off the statement, is that correct?

"A. That is--yes, sir, that's correct."

Appellant tried unsuccessfully to suppress his confession at a pre-trial hearing.

The court of appeals found: "Miranda does not expressly or inferentially require police to inform an accused, who has been given the basic Miranda warning, that legal counsel is present at the police station and trying to contact him, before any waiver of his rights under the Fifth Amendment can be deemed knowingly and intelligently made."

SIXTH AMENDMENT CLAIM

Appellant contends, inter alia, that his Sixth Amendment right to counsel was violated by the admission of his confession into evidence. In the instant case, at the time appellant signed his confession, judicial proceedings had not been initiated against him. The mere arrest and subsequent questioning of a person do not constitute a sufficient formalization of proceedings to trigger the requirement of counsel under the Sixth Amendment. The Sixth Amendment right to assistance of counsel does not come into play until "at or after the time adversary judicial proceedings have been initiated against (the accused), 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " See Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977), quoting Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 1881-83, 32 L.Ed.2d 411, 417, 418 (1972); Tarpley v. Estelle, 703 F.2d 157 (5th Cir.1983). Thus, it is only when "the government has committed itself to prosecute" that the defendant is entitled to counsel, Tarpley v. Estelle, supra, at 162, under the Sixth Amendment. See also United States v. Dobbs, 711 F.2d 84, 85 (8th Cir.1983); United States v. Franklin, 704 F.2d 1183, 1189 (10th Cir.1983); United States v. Guido, 704 F.2d 675, 676 (2d Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1012 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); United States v. Traficant, 558 F.Supp. 993, 996 (N.D.Ohio 1983).

In the instant case, no "judicial proceeding" of any kind had been instituted by the police against appellant, thus no viable Sixth Amendment claim has been demonstrated.

FIFTH AMENDMENT CLAIM

I. INVOCATION OF FIFTH AMENDMENT RIGHTS

Appellant additionally contends that the court below rendered a decision in conflict with other jurisdictions that have addressed the issue of whether a party other than a defendant may invoke the right to counsel under Miranda, viz: Weber v State, 457 A.2d 674 (Del.1983); State v. Matthews, 408 So.2d 1274 (La.1982); Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969); People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 (1979); People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968); People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628 (1963); State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979); Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977).

We are not persuaded by these cases relied upon by appellant because of the following persuasive language found in Fuentes v. Moran, 572 F.Supp. 1461 (D.R.I.1983), aff'd 733 F.2d 176 (1st Cir.1984); viz: "The sockdolager is simply this: Petitioner's right against...